Waqf Amendment Act: What the Supreme Court stayed and did not stay [READ JUDGMENT]

The Supreme Court on Monday gave its verdict on pleas to stay the operation of the Waqf (Amendment) Act, 2025, till petitions challenging its validity are decided. .In its 128-page judgment, a Bench of Chief Justice of India (CJI) BR Gavai and Justice AG Masih expressed that, prima facie, it did not find several of the provisions under challenge to be arbitrary. However, a few key provisions have been stayed or clarified as a form of limited interim relief, citing practical considerations. .Highlights of the Court's prima facie observations in the interim verdict include the following:.1. Provision that waqf creator must be practicing Muslim - Limited stayThe Court held that Section 3(r), which makes it mandatory for waqf creators to show that they are practicing Muslims for at least five years, did not appear to be arbitrary. “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,” the Court said. However, the Court added that rules must be framed before enforcing this provision. Therefore, this provision has been stayed until such rules are framed. "Since no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practicing Islam for at least 5 years or not, such a provision cannot be given effect to immediately," the Court said. .2. Waqf by user deletion - No stayThe Court held that the Central government’s deletion of ‘waqf by user’ from the earlier law is not arbitrary. The Court also took note of Solicitor General Tushar Mehta's submission that this deletion is prospective. Therefore, the petitioners’ concerns that existing waqfs will be affected is without basis, the Court opined. The Court added that there appeared to be valid reasons for deleting "waqf-by-user" as a means for creating waqf property. “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.”However, the Court made it clear that no existing waqf properties, including those created by the waqf-by-user route, can be disturbed until a waqf tribunal (or the High Court, if the case proceeds to appeal) passes such an order on any dispute concerning such properties. .3. Automatic de-recognition of existing waqf properties till government official's report - StayedSection 3C of the amendment Act provideS for the derecognition of existing waqfs until a government official enquires into whether such property should be treated as a waqf or whether such status should be stripped away because it involves property encroachment. The Court stayed this amendment, opining that if government officers are given such powers, it would violate the separation of powers principle. The Court held that this provision is, prima facie, not sustainable in law and arbitrary."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 quasijudicial authority," it said. It added that such decisions on the title of properties must be left to waqf tribunals and if an appeal is filed, High Courts. Unless these judicial bodies decide on such questions, no waqf can be derecognised or denotified or third party rights created, the Court said. .4. Removal of waqf status for ASI monuments - No staySection 3D of the Waqf Amendment Act lays down that waqfs created on properties that were notified as ancient monuments under the Ancient Monuments Preservation Act, 1904 or the Ancient Monuments and Archaeological Sites and Remains Act, 1958, would be void. The Court refused to stay this provision, observing that there is no violation of customary or religious rights in introducing such a restriction. “Sub-section (6) of Section 5 of the (1958) Act permits the citizens to continue with their customary religious practices even if such an area is a protected monument. In that view of the matter, we do not find that any case is made out to stay the said provision," the Court held. .5. Bar on tribal lands from being declared waqfs - No stayThe Court noted that Section 3E of the amendment Act, which bars the declaration of tribal lands as waqf, was introduced with the object of safeguarding the interests of one of the most marginalized and vulnerable sections of our country - Scheduled Tribes."(This) cannot be said to have no nexus with the object sought to be achieved. Such a provision cannot, therefore, be said to be prima facie arbitrary so as to stay the same," the Court ruled. .6. On non-muslims in waqf bodies - Clarification on cap issuedThe Court recorded the Central government's stance that no more than four non-Muslims would be made part of the Central Waqf Council and that no more than 3 non-Muslims would be added to State boards. The Court said it is not going into whether the inclusion of non-Muslims in waqf bodies amounts to interference in religious matters in view of the Central government's undertaking. However, it noted that going by a plain reading of the amendment Act, up-to 12 members of the council and up to 7 members of the State boards could be non-muslims.Therefore, to allay any apprehension that more non-Muslims may be made part of these bodies, the Court issued an express clarification on this aspect. "In order to avoid any ambiguity, we propose to issue a direction that the Central Waqf Council have non-Muslim members exceeding 4 in number and 3 nonMuslim members insofar as Board is concerned.”.7. Ex officio member of State Boards need not be Muslim - No stayThe Court noted that since it has clarified the cap on non-Muslim members in State Boards, it will inevitably be a Muslim majority body. Therefore, it opined that there is no need to stay Section 23 of the amendment Act, which provides for the appointment of an ex-officio member from the State government as the Chief Executive Officer of State Boards, without any requirement that such an official must necessarily be a Muslim. However, the Court said that this member should be a Muslim as far as possible. "As soon as possible an endeavour should be made to appoint a Chief Executive Officer who belongs to Muslim community.".8. Registration of waqfs - No stayThe requirement for all waqfs to be registered under Section 36 of the Amendment Act has not been stayed, considering that such a registration requirement was there in earlier laws as well. .9. Deletion of provision that allowed non-Muslims to create waqfs - No stayThe Court refused to stay the deletion of Section 104 from the earlier Waqf Act, which had recognised and regulated the creation of waqfs by non-Muslims. "The deletion of the provision which permitted the person not professing Islam to give or donate his property for the purpose of waqf cannot be said to be arbitrary inasmuch as even according to petitioners waqf is specific to Islamic religion," the Court said. It also noted that if non-Muslims want to donate property for waqf purposes, they can always donate it first to a trust that can then create the waqf. “Further, it appears that the said amendment has been brought to make it consistent with the definition of waqf under Section 3(r) of the Amended Waqf Act, which provides that waqf can be created only by a person showing or demonstrating that he is practicing Islam for at least five years," the Court added. .10. Limitation Act applied to waqf disputes - No stay"We fail to understand as to how the Limitation Act, 1963, which is otherwise applicable to any other proceedings with regard to any claim or interest pertaining to immovable property, and which is now being made applicable to the claim or interest pertaining to immovable property comprised in a waqf can be said to be arbitrary," the Court said while refusing to stay Section 107 of the amendment Act. .[Read Judgment]