No stay on waqf law but SC puts in guardrails: Limits DC’s powers, caps non-Muslim presence

A bench of Chief Justice of India B R Gavai and Justice Augustine Masih said that the order is “to protect the interest of all the parties and balance the equities.” The limited stay on these select provisions will be until the SC can make a final determination on the constitutionality of the Waqf (Amendment) Act, 2025.

Under the amended law, if the District Collector identifies a land as government land that is currently in use as a waqf land, then the land ceases to be waqf land till a court decides the dispute. This power, which flows from a crucial proviso to Section 3(C), could alter the status of waqf land even before a court has decided its status.

The court found this violative of the separation of powers doctrine. “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,” the order stated.

As a safeguard, the SC added that the character of the waqf will not change “subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties.”

The bench also directed the government to pause the provision under which only those practising Islam for at least five years can create a waqf till state governments can frame rules on how to make that determination.

At the same time, it said that the provision cannot be said to be arbitrary or discriminatory. It said that as early as 1923, the legislature had noticed that it was common that a Waqf endowment be regarded by the public as a “clever device” to tie up property in order to defeat creditors and “generally to evade the law under the cloak of a plausible dedication to the Almighty.”

The possibility of any person not belonging to Muslim community, converting to the Islamic religion only 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,” the court said.

On the representation of Muslims in the Waqf bodies, the SC ruled that the Central Waqf Council constituted under the 2025 Act shall not consist of more than four non-Muslim members out of 22 and the state Board, not more than three non-Muslim members out of 11.

It also directed that, as far as possible, effort should be made to appoint the Chief Executive Officer of the Board who is the ex-officio Secretary from amongst the Muslim community.

The court declined to stay the crucial provision that was challenged by the petitioners on the law doing away with the concept of “Waqf-by-user”. Waqf-by-user is a status for land used for Muslim religious or charitable purposes for a long period of time. Such land is deemed to be a waqf even if it was not registered as such.

The 2025 law does away with the concept of waqf-by-user for future transactions, and restricts it only to those that are already registered as waqf.

The court found that if the legislature, noticing the misuse of properties and encroachment of government lands through this concept, decides to abolish it prospectively, the amendment prima facie cannot be said to be arbitrary.

“…right from 1923, in all the enactments we have referred to, there was a requirement of registration of waqfs. We are, therefore, of the view that 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,” the court said.

On the argument that in many cases there would be no waqf deeds available, the SC pointed out that under the 1995 Act, waqf deed was not mandatory for filing an application for registration.

“Under the (1995) Original Waqf Act, it was provided that if no such deed has been executed or a copy thereof cannot be obtained, the application could have been made by giving full particulars as far as they are known to the applicant with regard to the origin, nature and objects of the waqf. 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,” the SC said.

Limiting the powers of the District Collector, the SC also stayed the provision “which permits the necessary corrections to be made in the revenue records after conclusion of the inquiry and the provision enabling the State Government to direct the Board to make appropriate corrections in the revenue records on receipt of the report (of the collector)…”

It added, “however, to balance the equities and to protect the valuable Government properties, it is also imperative that pending such a determination by the Tribunal, the Mutawallis of such of the waqfs do not create any third-party rights in respect of such properties for which the proceedings in accordance…the Amended Waqf Act are initiated, until the final adjudication by the Tribunal is made.”

The interim order also took note that the Act provides a period of six months from the commencement of the Act for registering waqf by user. “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.” It added that apart from this, the Act also provides that an application may be entertained by the court by way of such a suit etc., even after the expiry of the six-month period.