The challenge to the 2025 Waqf Amendment Act immediately triggered the long-standing, often vexed, principles of constitutional interpretation concerning religious freedom. Articles 25 and 26 grant individuals and denominations the right to freely profess and manage their religious affairs, subject only to public order, morality, health, and other provisions of Part III. Crucially, the right to manage property belonging to a religious group (Article 26(d)) is explicitly subject to regulation “in accordance with law,” whereas the management of affairs in matters of religion (Article 26(b)) puts no such condition.
This article discusses the recent Supreme Court’s interim order in the petitions challenging the Waqf (Amendment) Act, 2025 and examines the quantum of interim relief granted against relief prayed for and comments on whether such interim relief was indeed adequate to protect the petitioners or not.
I. The Waqf Amendment Act, 2025 in brief
Before further discussion over the interim order passed by the Supreme Court in the petitions challenging the validity of the Waqf Amendment Act, 2025, it is important to understand what the amendment did. An in depth analysis of the provisions and the consequent impact of such provisions can be read here.
First, it attempted to redefine who could create a Waqf by requiring the dedicator (donor of the property) to demonstrate they had been practicing Islam for at least five years, while asserting lawful ownership over the property. Second, the Act prospectively abolished “Waqf by User” (property becoming Waqf merely through consistent religious use as it was the case of many Islamic religious institutions that have been existing since the 1800s or even before). Third, the post-amendment Section 3C introduced a mechanism allowing a designated government officer to unilaterally declare properties identified as Waqf to be “Government property,” thereby removing them from Waqf oversight. Crucially, the law also mandated compulsory registration and applied the Limitation Act, 1963, curtailing traditional protections against adverse possession claims over Waqf land.
The Disquieting Juxtaposition: Waqf vs. Others
The critical issue of discriminatory application looms large, implicating Articles 14 (Equality) and 15 (Non-Discrimination). Petitioners argued that the rigorous state control proposed by the amendments—particularly concerning land management and the mandatory inclusion of non-Muslims in governance—was unfairly imposed upon the Muslim community compared to other religious institutions.
In the landmark Shirur Mutt case (1954), which defined much of the state’s power over religious endowments, the Supreme Court indeed recognized that the right of a religious denomination to administer its property, while regulated by law (Article 26(d)), must fundamentally leave the right of administration to the denomination itself.[1] A law that entirely removes this right and vests it in an outside authority is deemed a violation. Furthermore, the imposition of a compulsory annual contribution under the Madras Act was struck down, not as a fee for services rendered, but as a “tax,” placing it beyond the legislative competence of the state. The rationale was clear: while the state could regulate the secular administration of religious trusts to ensure they are properly managed, it could not levy a tax for the promotion or maintenance of a particular religion.
There exists a stark disparity in the manner charitable institutions of different religions are treated under law, particularly when one examines the proposed Waqf Amendment provisions that impose disproportionately stringent control over the Islamic institution of Waqf. The issue is straightforward. For decades, major Hindu temples have been administered by boards composed entirely of Hindus, and at no point has the government proposed that, since temple administration is a secular activity, persons of other faiths may be appointed to those boards. Consider the endowment legislations in Karnataka[2], Andhra Pradesh[3], and Tamil Nadu[4] — each expressly requires that the commissioners and officers appointed under their respective Acts must profess the Hindu religion. This differential treatment in which Non-Muslim participation is being proposed stands in clear violation of Article 14 of the Constitution, which guarantees equality before the law.
II. Erosion of Legal Safeguards: Property, Custom, and the Collector’s Writ
The most urgent grievances raised before the Supreme Court related to the potential for bureaucratic expropriation of historic Waqf properties, facilitated by three key amendments: the demise of ‘Waqf by User’, the mandatory registration mandate, and the introduction of a new mechanism for determining ‘Government property’.
A. The Sudden Takedown of ‘Waqf by User’ and the Time Bar
For centuries, the concept of Waqf by User acknowledged that consistent religious use of a property could establish it as a Waqf, even without a formal written deed or dedication. The petitioners stressed that many old Waqfs, lacking formalized documents, rely solely on this doctrine for their title and survival. The 2025 Amendment, however, abolished the doctrine prospectively.
The court dealt with the state’s concern saying that this doctrine had been systemically misused to encroach upon vast tracts of government land, citing instances where thousands of acres were claimed as Waqf property merely through user.
However, the sting lay in Section 36 (10) of the Amended Act, which imposed a mandatory registration requirement for all Waqfs within six months of the Act’s commencement. Failure to register within this period effectively barred the Waqf from instituting or commencing any suit or legal proceeding for the enforcement of its rights. While a proviso allows the court to entertain an application if sufficient cause for delay is shown, forcing centuries-old institutions, often poor and disorganized, to scramble for registration within a tight six-month window—after decades of varying legislative requirements and historical neglect by official bodies—constitutes a threat to rights enshrined in Articles 25 and 26 of the Constitution
This provision creates precarious conditions for community rights, essentially rendering unregistered Waqfs remediless. The court’s justification was rather technical: that Mutawallis had decades to register since the 1923 Act. Yet, to adopt this technical justification would be to ignore the ground realities—the lack of formal deeds, illiteracy, and systemic administrative failures by Waqf Boards themselves—and imposing an iron-clad registration bar seems an exercise of power ill-suited to securing justice for historical endowments. The resultant inadequacy is that while the title by use remains theoretically protected for existing properties, the inability to legally defend or enforce rights over that property due to an administrative lapse effectively neuters the title. By now, the six months have passed.
B. The Usurpation of Judicial Authority by the Executive (Sec 3C)
Perhaps the most alarming feature of the amendment was the introduction of Section 3C, establishing a mechanism for determining whether property claimed as Waqf was, in fact, “Government property”. This power was granted to a “designated officer” above the rank of Collector, who, after an inquiry “as per law,” would submit a report to the State Government. If the officer determined the property was government property, they were empowered to order corrections in revenue records and direct the Waqf Board to update its records.
The petitioners vehemently challenged the provisos to Section 3C(2) and the entire mechanism of Sections 3C(3) and 3C(4). The core objection was that entrusting a revenue officer—a functionary of the executive—with the power to determine the title of property, and subsequently mandating changes in revenue records, flagrantly violates the separation of powers, an essential principle enshrined in the Constitution. The determination of property title is a function reserved for judicial or quasi-judicial bodies.
The Supreme Court, while prima facie upholding the initial clauses of Section 3C, intervened by staying the critical executive actions: the provision that the property would cease to be Waqf until the officer’s report (Proviso to Section 3C(2)), and the powers given to the designated officer to order corrections in revenue records (Sections 3C(3) and 3C(4)).[5]
The court correctly asserted that the final determination of title must rest with the specialised Waqf Tribunal, established under Section 83, which is a judicial or quasi-judicial body with appeal rights to the High Court. Furthermore, the court directed that until the Tribunal makes a final adjudication, neither the Waqfs can be dispossessed, nor can the revenue records be altered.[6]
While this stay is crucial—it halts the immediate damage of executive unilateralism—the court’s action necessarily remains an interim restraint on procedure. It does not yet nullify the underlying legislative intent, which remains an aggressive mechanism to “de-recognize” property. The final battle over whether the state can legally employ such an executive process for title investigation, even if followed by judicial remedy, awaits the final hearing.
C. The Re-imposition of Limitation
A historical protection for Waqf property, long deemed dedicated perpetually to God, was enshrined in the un-amended Waqf Act, 1995: Section 107 provided that the Limitation Act, 1963, would not apply to suits for recovery of immovable Waqf property. This immunity protected endowments from being lost through adverse possession, recognizing their unique religious and charitable status, where the owner (Allah) cannot lose title.
The 2025 Amendment, via Section 44, abolished this immunity, mandating that the Limitation Act shall apply to all proceedings related to claims or interests in Waqf property from the date of the Act’s commencement. This change was argued to be a necessary reform to align Waqf law with general property law.
For the rights under Article 25 and 26, this provision is deeply injurious, instantly exposing centuries of undocumented or poorly managed property to adverse possession claims and creating an immense burden on Waqf Boards to initiate lawsuits, many of which may now be time-barred. The petitioners did submit that the combined effect of this amendment and the deletion of the special provision for evacuee property (Section 108) means that potential recovery suits concerning historical properties, including those tied to post-Partition dislocation, could be barred by limitation.
The Supreme Court, in its interim analysis, found no prima facie case for staying this provision, arguing that applying the Limitation Act removes discrimination that existed in the un-amended Act, thereby treating Waqf property equally to other property claims.[7] This judicial stance, however, overlooks the foundational religious and jurisprudential difference: Waqf property is distinct from ordinary private property; it is permanently dedicated to a charitable or pious purpose, and management (by the Mutawalli) is merely custodial, not proprietary. To strip this perpetual immunity without offering a robust, workable transitional mechanism is an existential blow to the community’s ability to defend its patrimony.
III. The State as Arbiter
The amendments also sought to heavily influence the composition and criteria for Waqf creation, bringing the state’s regulatory gaze directly upon matters of religious identity and leadership.
A. Non-Muslim Inclusion and Secular Administration
The amendments to the composition of the Central Waqf Council (Section 9) and State Waqf Boards (Section 14) allowed for the inclusion of non-Muslim members, which petitioners argued was a direct interference in the management of religious affairs (Article 26(b)). The religious character of the Board, they argued, is inseparable from its administrative duties. Conversely, the state maintained that the functions of the Board and Council—dealing with finance, property, encroachment, and audit—are predominantly “secular activities,” which the state is empowered to regulate. The Mutawalli deals with administrative matters, while the Sajjadanashin handles the religious activities.
The court adopted a middle path, reflecting a structural compromise often seen in Indian jurisprudence. It placed limits on the executive’s expansive power, directing that the Central Waqf Council (out of 22 members) shall not consist of more than 4 non-Muslim members, and State Boards (out of 11 members) shall not exceed 3 non-Muslim members. Furthermore, though it declined to stay the provision regarding the appointment of the Chief Executive Officer (CEO), it directed that an effort should be made, “as far as possible,” to appoint a CEO from the Muslim community.[8]
This, while acknowledging the need to preserve majority Muslim representation, essentially validates the state’s claim that Waqf governance is a secular activity amenable to external, cross-community administrative supervision. This position maintains that the “scale of expenses” and “administration of property” are secular affairs that can be regulated by authorities. However, this judicial accommodation reinforces the state’s role as the final arbiter of what constitutes ‘religious’ versus ‘secular’ functions—a role that academics and petitioners alike have long found problematic, not only generally but also from the case perspective.
B. The Five-Year Practice of Islam Requirement
Section 3(r) of the Amended Act stipulated that a Waqf could only be created by a person “showing or demonstrating that he is practising Islam for at least five years” and who is the lawful owner of the property. This provision was challenged as arbitrary and violating Articles 14, 15, and 25.
The state defended the rule, recalling historical legislative concerns dating back to 1923, that Waqf endowments were often used as a “clever device” to defraud creditors or evade law. The new requirement, the state argued, aimed to ensure that only genuine practitioners, and not fraudulent converts seeking a legal shield for property, could dedicate a Waqf.
The Supreme Court recognised the legislative intent but stayed the operation of this condition, not on the grounds of constitutional invalidity, but due to procedural vagueness. The court noted that in the absence of a clearly defined statutory mechanism for determining whether a person has “practised Islam for at least five years,” the provision would necessarily lead to an arbitrary exercise of power. Thus, the condition remains stayed until Government frame rules to create a viable mechanism.[9] This offers temporary procedural relief but fails to address the more substantive critique: why the state feels compelled to legislate criteria for demonstrating genuine religious practice, a function traditionally far outside the boundaries of a secular state.
Moreover, the Supreme Court in its order, while dealing with the critique that defaulters are dedicating their property to the Almighty to defraud creditors, stated that a possibility of people changing their religion to Islam to defraud the creditors cannot be ruled out. This written observation is rather peculiar since it is used to close the doors on what could have been an analysis on whether an exceptional case of a provision allowing some misuse mandates that such provision be void or not. However, the Supreme Court neither goes into that direction nor does it leave a chance open for it to be discussed at a later stage. It simply puts the reason of absence of rules over how to show if someone has been practicing Islam or not as a justification for the stay over this provision.
IV. The Shadow of Exclusion: Tribal Lands
In two areas—properties dedicated by non-Muslims and properties in tribal areas—the Court refused to grant any interim stay, upholding the state’s legislative decisions that carved out exclusions, even though these raised questions of religious liberty and non-discrimination.
Prohibition on Land in Scheduled or Tribal Areas (Section 3E)
Section 3E explicitly states that no land belonging to Scheduled Tribes under the Fifth or Sixth Schedules shall be declared or deemed to be Waqf property, regardless of any other law. This restricts the religious freedom (Articles 25 and 26) of Scheduled Tribe members who practice Islam and wish to dedicate property.
The state and the court’s prima facie view supported the amendment, rationalizing it as a measure to protect the existence of “cultural minorities” whose religious practices are distinct from Islamic religion. The legislative intent was to avoid conflicting provisions and protect the constitutional autonomy granted to tribal lands.
The inadequacy of the interim order here stems from the blanket nature of the prohibition. While protecting tribal culture is a constitutional priority, preventing an individual Muslim member of a Scheduled Tribe from exercising their right to dedicate their own property as Waqf appears to be an overly broad measure. By failing to stay this provision, the court permits a form of religious restriction justified by cultural protection, without fully weighing the individual rights of practicing Muslims within those tribal groups.
V. The Opportunity Cost: Alternatives to Sweeping Invalidation
The state’s underlying intentions, prima facie, for the 2025 amendments was the misuse, waste, and systematic misappropriation of Waqf properties by some incompetent or unscrupulous mutawallis, sometimes even in collusion with government agencies.
However, the question remains whether the state, faced with misuse, chose the most appropriate and constitutionally sensitive remedy.
As early as 1923, the legislature acknowledged the “menace of mismanagement” and responded by proposing compulsory registration, penalties, audits, and official superintendence.
The pre-amendment Waqf Act specifies duties and disqualifications of mutawallis (such as failure to maintain accounts, misuse of funds, or being convicted of encroachment). Removal provisions were extensive. Furthermore, penalizing unauthorized alienation of property was addressed by Section 52A, which prescribed imprisonment and recovery of the property.
The argument that a more appropriate, less constitutionally aggressive path existed rings true: instead of fundamentally challenging the integrity of historical titles through the abolition of Waqf by User and the imposition of executive title determination (Section 3C), the state could have rigorously enforced the existing accountability, anti-encroachment, and penalty provisions against corrupt mutawallis.
By enacting sweeping structural amendments—like applying the Limitation Act to title disputes and delegating title scrutiny to the Executive—the state opted for a sledgehammer approach to solve a problem of governance and corruption, thereby endangering the legitimate, centuries-old endowments that sustain the community. The Supreme Court’s interim relief, while protecting the procedural sanctity of title adjudication (by striking down the executionary steps of Sec 3C), ultimately permits these structural, title-threatening changes (like the prospective abolition of Waqf by User and the application of the Limitation Act) to stand pending final adjudication. This approach risks resulting in a protective regime whose effect is inadequate when weighed against the magnitude of the rights, religious history, and communal identity hanging in the balance.
(The author is part of the legal research team of the organisation)
[1] The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt 1954 SCR 1005
[2] Section 7, The Hindu Religious Institutions and Charitable Endowments Act, 1997
[3] Section 3, Andhra Pradesh Charitable and Hindu Religious Institutions And Endowments Act, 1987
[4] Section 10, The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
[5] Para 209, IN RE: The Waqf Amendment Act, 2025 (1) 2025 INSC 1116 (Waqf Interim Order)
[6] Para 209, Waqf Interim Order.
[7] Para 201, Waqf Interim Order
[8] Para 189, Waqf Interim Order.
[9] Para 140, Waqf Interim Order
Related:
Waqf Act Amendments Partly Stayed: SC blocks government control, backs registration and reforms
Amid Waqf Debate, Should Hindu Endowment Boards be Held Responsible for the Sorry Plight of Dalits?
SC to UoI on Waqf Amendment: ‘Are you willing to allow Muslims on Hindu endowment boards?’