Supreme Court Stays Key Provisions Of Waqf (Amendment) Act 2025, Cites Separation Of Powers Concerns

The Supreme Court on Monday (15 September) issued an interim order staying several contentious provisions of the Waqf (Amendment) Act 2025, while refusing to suspend the law in its entirety.

A bench of Chief Justice of India BR Gavai and Justice AG Masih observed that “no case was made to stay the entire provisions of the statute,” but certain sections required protection until the matter is finally decided, LiveLaw reported.

Provisions Stayed by the Court

1. Five-Year Islam Practice Clause

   • Section 3(1)(r), which required a person to be a practitioner of Islam for at least five years to create a Waqf, has been suspended.

   • The Court said that without rules framed by states to determine this, the clause would enable an “arbitrary exercise of power.”

2. Government Authority Over Encroachment Disputes

   • Sections 3C(2), 3C(3) and 3C(4), which allowed a designated officer or collector to decide whether disputed land was Waqf or government property, have been stayed.

   • CJI Gavai noted: “Permitting the Collector to determine the rights of the properties is against the doctrine of separation of powers as the Executive can’t be permitted to determine the rights of citizens.”

   • The Court ruled that until a tribunal or higher court gives a final verdict, Waqf bodies cannot be dispossessed, nor can third-party rights be created over such land.

3. Non-Muslim Representation in Waqf Councils and Boards

   • The Central Waqf Council cannot include more than four non-Muslim members out of 20.

   • State Waqf Boards cannot have more than three non-Muslim members out of 11.

Provisions Not Stayed

1. CEO Appointment: The Court did not stay the clause allowing a non-Muslim to serve as CEO of a State Waqf Board, but directed that “as far as possible, efforts should be made to appoint… from amongst the Muslim community.”

2. Registration Requirement: The registration condition remains in force, with the bench noting it existed between 1995 and 2013 as well.

The petitions had argued that the amendments undermine long-standing protections for Waqf properties. Earlier, in April, the Union government assured the Court that non-Muslims would not be appointed to Waqf Boards and Councils while the matter was under consideration, and that no Waqf would be de-notified.

The case, reserved for orders in May after three days of hearings, will continue for final adjudication.

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