Waqf Act Amendments Partly Stayed: SC blocks government control, backs registration and reforms

On September 15, 2025, the Supreme Court bench comprising Chief Justice of India B.R. Gavai and Justice A.G. Masih delivered an interim order on a batch of petitions challenging the Waqf (Amendment) Act, 2025.

While refusing to stay the Act in its entirety, the Court partially suspended certain provisions, emphasising that such intervention was necessary to prevent arbitrariness and protect all parties until the matter is decided finally.

As per reports in LiveLaw, CJI Gavai began the pronouncement by observing: “Only in the rarest of rare cases a legislation can be stayed by the Court. Though the entire Amendment Act is under challenge, the challenge is essentially to certain specific provisions. We are, therefore, of the view that no case is made to stay the provisions of the entire statute.”

1. Five-year practice of Islam condition

Provision challenged: Section 3(1)(r) required that a person must have been a practitioner of Islam for at least five years before being eligible to create a Waqf.

Court’s observations:

• The condition is not per se arbitrary. The legislature’s concern was to prevent misuse, such as people converting to Islam solely to create Waqfs to shield properties from creditors:

“The possibility of any person not belonging to Muslim community, converting to the Islamic religion only in order to take benefit of the protection of Waqf Act so as to defeat creditors and evade the law under the cloak of a plausible dedication cannot be ruled out.” (Para 136)

• However, in the absence of any statutory mechanism to determine whether a person has indeed practised Islam for five years, the provision would lead to an arbitrary exercise of power.

Court’s direction:

• The provision is stayed until State Governments frame Rules to create such a mechanism.
• The stay is temporary and conditional on legislative follow-up.

2. Government power to derecognise Waqf land pending dispute

Provisions challenged:

• Proviso to Section 3C(2): Stated that if a property is disputed as encroached government land, it would not be treated as Waqf until a designated government officer submits his report.
• Section 3C(3): Empowered the officer, if determining it was government land, to order corrections in revenue records.
• Section 3C(4): Required the State Government to direct the Waqf Board to make corresponding changes.

Court’s observations:

• Entrusting the Collector or designated officer with the power to decide property rights violates the separation of powers:

“Though we have prima facie upheld the provisions of Section 3C(1) and 3C(2) of the Amended Waqf Act, we find that the question with regard to determination of title of a property being entrusted to a revenue officer would not be in tune with the principle of separation of powers enshrined in our Constitution. The question of determination of the title of a property will have to, in our considered opinion, be resolved by a judicial or quasi-judicial authority.” (Para 161)

• The interim suspension of Waqf status prior to judicial determination is prima facie arbitrary:

“If a property is already identified as a waqf property or is declared as waqf property, then without determination of the question as to whether such a property is a Government property or not and treating the said property not as a waqf property, in our prima facie view, is arbitrary.” (Para 158)

The final determination of title must rest with a judicial or quasi-judicial body, namely the Waqf Tribunal under Section 83, with appeals to the High Court.

“It is directed that unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the Tribunal and subject to further orders by the High Court, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the Board shall be affected. However, upon commencement of an inquiry under Section 3C of the Amended Waqf Act till the final determination by the Tribunal under Section 83 of the Amended Waqf Act, subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties.” (Para 209 iii)

Court’s directions:

• The proviso to Section 3C(2), Section 3C(3), and Section 3C(4) are stayed.
• Until title disputes are decided:
  • Waqfs cannot be dispossessed of disputed lands.
  • Revenue records and Waqf Board records remain unaffected.
  • Mutawallis cannot create third-party rights over such properties until final adjudication. 

3. Non-Muslims in Central Waqf Council and State Waqf Boards

Provisions challenged: Amended provisions allowed inclusion of a higher number of non-Muslims in Waqf bodies.

Court’s observations and directions:

• In the Central Waqf Council (22 members) – maximum of 4 non-Muslims.
• In State Waqf Boards (11 members) – maximum of 3 non-Muslims.
• This ensures that Muslim representation remains predominant in bodies managing Islamic religious endowments.

“It is directed that insofar as Central Waqf Council constituted under Section 9 of the Amended Waqf Act is concerned, it shall not consist of more than 4 non- Muslim members out of 22. Equally, insofar as the Board constituted under Section 14 of the Amended Waqf Act is concerned, it is directed that it shall not consist of more than 3 non-Muslim members out of 11.” (Para 209 iv)

4. Appointment of CEO of Waqf Boards

Provision: Section 23 permitted a non-Muslim CEO, who acts as ex officio Secretary to the Board.

Court’s observation and direction:

• Did not stay the provision.
• Issued a directive:

“Though we are not inclined to stay Section 23, we direct that as far as possible, efforts should be made to appoint the Chief Executive Officer of the Board, who is the ex-officio Secretary, from amongst the Muslim community.” (Para 209 v)

5. Registration of Waqfs

Provision challenged: Section 36 required:

• Mandatory registration of all Waqfs.
• Prohibition of creating new Waqfs without a deed.
• Six months’ compliance window.

Court’s observations:

• This is not novel — registration has been mandated under every Waqf law since 1923, including the 1954 and 1995 Acts.
• Even if a deed is missing, registration is possible by supplying particulars.
• Six months’ time has been provided, with courts empowered to condone delay.

Court’s direction:

• No stay.
• Held that this requirement is consistent with legislative history and is neither arbitrary nor discriminatory.

“We are, therefore, of the view that if for 30 long years, the Mutawallis had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary. Further, if the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the impugned Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary.” (Para 149)

“sub-section (10) of Section 36 of the Amended Waqf Act itself provides a period of 6 months from the commencement of the impugned Act. As such, we are of the considered view that an ample amount of time has been given for the waqfs which are not registered to get themselves registered. Apart from that, the proviso to sub-section (10) of Section 36 of the Amended Waqf Act provides that an application may be entertained by the court by way of such a suit etc., after the period of 6 months specified under the said sub-section if the applicant specifies sufficient cause. We are, therefore, of the prima facie view that such a provision cannot be held to be arbitrary or discriminatory.” (Para 192)

6. Abolition of “Waqf by User”

Provision challenged: The 2025 amendment abolished the doctrine of Waqf by user, which recognised a property as Waqf through consistent religious use even without a deed.

Petitioners’ argument: Many age-old Waqfs had no deeds, and their survival depended on the doctrine.

Court’s observations:

• Since registration has been required since 1923, Waqfs had 102 years to register:

“If Mutawallis for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered.” (Para 147)

• The abolition is prospective, aimed at preventing misuse:

“If the legislature, in 2025, finds that on account of the concept of ‘Waqf by User’, huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary.” (Para 150)

Court’s direction: No stay. The abolition stands.

7. Other provisions left undisturbed

The Court refused interim interference with:

• Prohibition on Waqfs in Scheduled Areas and protected monuments.
• Restriction that only Muslims can create Waqfs.
• Application of the Limitation Act to Waqf disputes.
• Cap on women members in Waqf Councils and Boards.
• Amendments concerning waqf-alal-aulad, appeals, renaming of the Act, and structural changes.

Operative portion of the order

CJI Gavai concluded: “The prayer for stay of the impugned Act is, therefore, rejected. However, while doing so, in order to protect the interest of all the parties and balance the equities during pendency of this batch of matters, we issue the following directions…”

• Stayed:
  • Five-year Islam practice condition (till Rules framed).
  • Proviso to Section 3C(2), Section 3C(3), Section 3C(4).
• Directed:
  • Non-Muslim members capped at 4 (Central Council) and 3 (State Boards).
  • Preference for Muslim CEOs.
• Not stayed:
  • Registration mandate.
  • Abolition of Waqf by user.
  • All other provisions.

Summary of the interim order of the Supreme Court is as follows:

The complete judgment may be read here.

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