The five-year test: Supreme Court’s interim order on the Waqf Amendment Act

The Supreme Court's interim order in the Waqf Amendment Act case offers a window into one of the more perplexing questions of contemporary constitutional law: when, if at all, may the state inquire into the authenticity of an individual's religious practice?

The Court's decision to stay the provision requiring individuals to demonstrate five years of practicing Islam before creating a waqf provides temporary relief, but the reasoning behind this stay reveals deeper constitutional tensions that merit careful examination. At its core, the disputed provision in Section 3(r) of the amended Act seeks to redefine who may create a waqf by introducing a temporal requirement - five years of demonstrable Islamic practice. While the legislative intent appears to be preventing fraudulent conversions aimed at evading legal obligations, the constitutional implications of this requirement extend far beyond its immediate application to waqf creation.

As Professor Faizan Mustafa has pointed out, the right of property ownership exists independent of religious law and belongs to general jurisprudence. When the state imposes conditions on how an individual may dispose of their property based on their religious credentials, it creates an uncomfortable intersection between personal faith and property rights. Consider the practical absurdity this creates. A property owner who wishes to create a waqf must now prove their religious sincerity to state officials. This introduces a situation where constitutional rights become dependent on administrative evaluations of an individual's religious commitment, an approach that is concerning from the standpoint of constitutional principles.

The exclusion of non-Muslims from waqf creation presents an even starker illustration of this problem. Historical precedents exist for non-Muslim contributions to Islamic endowments, yet the amended Act categorically prohibits such philanthropy. This prohibition is particularly strange given that through the same Act, non-Muslims are simultaneously permitted to serve on Waqf Boards and the Central Waqf Council. The logic appears to be that non-Muslims can oversee existing waqfs, but cannot create new ones, a distinction that frankly borders on a bizarre form of inclusivity.

The five-year requirement runs headlong into the Supreme Court's own reasoning in KS Puttaswamy v. Union of India. The Puttaswamy judgment made it clear that religious beliefs fall within the protected sphere of privacy, recognising that Article 25's guarantee of religious freedom includes both the right to choose one's faith and, crucially, "the freedom to express or not express those choices to the world." The Court in Puttaswamy understood that religious belief operates "within the zone of purely private thought process" and represents a core aspect of human liberty. When the state demands a demonstration of religious practice, it forces individuals to externalise what the Constitution protects as inherently private.

Perhaps most directly relevant is the Court's observation that "privacy is essential to the exercise of freedom of conscience and the right to profess, practise and propagate religion." The Waqf Amendment Act turns this insight on its head by making religious practice a matter of state verification rather than personal choice. The constitutional protection for religious denominations to "manage their own affairs" without state interference becomes meaningless if the state can dictate who qualifies as a genuine adherent in the first place.

The five-year requirement places the state in the uncomfortable position of adjudicating religious sincerity. When the Court uses the term "practicing Islam" rather than the statute's "professing Islam," it inadvertently grants state officials authority to determine what constitutes adequate religious practice - a role that sits uneasily with constitutional principles. The practical implications are worth considering. Would a Muslim who prays irregularly, or conducts business involving interest, or fails to observe all religious obligations, be deemed insufficiently "practicing" for waqf creation? Such determinations would require state officials to develop criteria for measuring religious devotion, a task that seems at odds with constitutional commitments to treating all religions equally.

The Court's invocation of preventing "clever devices" to evade legal obligations, while pragmatically understandable, lacks the constitutional rigour one might expect. The historical context of misuse certainly exists, but the remedy of requiring state verification of religious practice seems disproportionate to the problem. Moreover, the Court doesn't adequately grapple with why this particular form of state inquiry should be considered constitutionally permissible.

The interim order's approach of staying the provision until procedural rules can be framed reflects a worrying trend in contemporary jurisprudence that treats constitutional violations as primarily procedural problems. This perspective misses the more fundamental issue at stake. The question isn't whether the state can create fair procedures for verifying religious practice, but whether such verification should be permitted at all. This matters because constitutional rights aren't satisfied by providing alternative means of achieving similar ends. The Court's suggestion that restricted individuals may simply create trusts or make donations in other ways, while practically sensible, misses the deeper point about religious freedom. A waqf, with its unique characteristics of perpetuity and divine ownership, represents a particular form of religious expression that can't be replicated through other legal mechanisms. When the state attempts to standardise or verify religious authenticity, it risks creating hierarchies of religious legitimacy that undermine equal treatment under law.

The Puttaswamy judgment recognised that certain spheres of human experience must remain beyond state scrutiny if constitutional democracy is to retain meaning. Religious belief and practice clearly fall within this protected domain. The regression from protecting religious privacy to permitting state verification represents a concerning shift in constitutional thinking. While legitimate concerns about fraud exist, they can be addressed through mechanisms that focus on the transaction itself rather than the religious credentials of the parties involved. The Supreme Court's final judgment will need to grapple more directly with these constitutional tensions. A more robust approach might recognise that religious sincerity, like other matters of conscience, simply cannot be subject to state verification without undermining religious freedom itself.

The challenge will be developing a framework that protects legitimate state interest while preserving constitutional principles. This requires moving beyond the procedural thinking that characterises the interim order toward a more substantive engagement with what religious freedom actually means in a secular democracy. While the interim order offers temporary relief, the deeper questions about religious freedom, property rights and state neutrality will require more sustained judicial reflection. The Court's eventual answer will resonate far beyond waqf properties, shaping how we understand religious freedom in contemporary India.

Shrestha Srivastava is a Lucknow-based lawyer.