SC refuses to stay entire waqf law, stalls certain provisions

New Delhi | The Supreme Court on Monday refused to stay the Waqf law, saying there was a “presumption” of constitutionality in its favour, but stalled the operation of certain provisions, including the one which said only those who are practising Islam for the last five years can create a waqf.

Pronouncing an interim order, a bench comprising Chief Justice B R Gavai and Justice Augustine George Masih said, “We have considered prima facie challenge to each of the sections and found no case was made out to stay the entire statute.” The top court, however, stayed the provision which said that persons practising Islam for the last five years can only create a waqf.

It also stayed the provision which enabled an officer designated by the government to determine the dispute whether the Waqf property has encroached on a government property.

“We have held presumption is always on constitutionality of statute and in rarest it can be done. We have found that the entire Act is challenged, but the basic challenge was sections 3(r), 3C, 14,...,” the CJI said.

It directed that as far as possible the Chief Executive Officer of the Waqf Board should be a Muslim, while refusing to stay the amendment allowing the appointment of a non-Muslim as a CEO.

It also said the number of non-Muslims in state waqf boards and central waqf councils cannot exceed three.

The detailed judgement is awaited.

The top court on May 22 had reserved its order on three key issues, including the power to denotify properties declared as "waqf by courts, waqf-by-user or waqf by deed", which cropped up during the hearing of pleas challenging the validity of the Waqf (Amendment) Act, 2025.

Waqf by practising Muslim: SC stays provision for want of rules, but says it is not discriminatory

New Delhi | The Supreme Court on Monday stayed a provision of the Waqf law which provides that only those practising Islam for five years can dedicate a property as Waqf, saying it cannot be put into effect immediately in the absence of rules, but did not find the provision arbitrary or discriminatory.

A bench comprising Chief Justice B R Gavai and Justice Augustine George Masih put on hold a few key provisions of the Waqf (Amendment) Act, 2025, including a clause that only those practising Islam for the last five years could create Waqf, but refused to stay the entire law outlining the presumption of constitutionality in its favour.

The top court dealt with the contention that the condition requiring that a waqf can be created only by a person showing or demonstrating that he is practising Islam for at least five years is totally discriminatory and arbitrary.

“Prima facie, we are of the view that such a provision cannot be said to be arbitrary or discriminatory,” it said.

“We are, therefore, prima facie of the view that such a provision which requires a person practising Islam for 5 years for creating a waqf cannot be said to be arbitrary. As already discussed hereinabove, it cannot be said that it has no nexus with the object sought to be achieved.

“However, we are of the considered view that since no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practising Islam for at least 5 years or not, such a provision cannot be given effect to immediately,” the order said.

The bench said it was of the considered view that unless the rules are made by the central government, the provision of Section 3(r) of the Amended Waqf Act “requiring a person to show or demonstrate practice of Islam for at least 5 years in order to dedicate a movable or immovable property for the purpose of creating a waqf cannot be given effect to.”

It also dealt with the validity of another provision which deals with “wrongful declaration of waqf”.

“It cannot be gainsaid that the property of the Government is a property of the public i.e., the citizens of India. The Government holds the property in trust for its citizens. Any person who has wrongful possession of such property cannot be permitted to claim the same as his own property,” it said.

It said a provision, by way of which even before an inquiry is conducted by the designated officer as to whether any property is a government property or not and even before the designated officer submits his report to the state government, providing that such a property cannot be treated as waqf property in the interregnum, is, at least, 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,” it said.

'Incomplete, unsatisfactory': AIMPLB expresses disappointment with SC order on Waqf

New Delhi | Expressing disappointment over the Supreme Court's interim order in the Waqf case, the All India Muslim Personal Law Board (AIMPLB) on Monday said it was "unsatisfactory" as the refusal to stay the entire law leaves "numerous harmful provisions" in operation, including the prospective de-recognition of 'Waqf by user'.

The Muslim body also asserted that its 'Save Waqf Campaign' will continue with full strength and nationwide protests will culminate in a massive rally at Ramlila Maidan in Delhi on November 16.

AIMPLB spokesperson S Q R Ilyas said the Board maintains that the entire amendment is a deliberate move to weaken and seize waqf properties and, therefore, demands the complete repeal of the Waqf (Amendment) Act, 2025.

The AIMPLB has expressed disappointment over the Supreme Court's interim judgment on the Waqf (Amendment) Act 2025, describing it as "incomplete and unsatisfactory", a statement said.

Ilyas said in the statement that although the apex court has stayed certain provisions of the amendment, the Muslim community, the Muslim Personal Law Board and justice-seeking citizens had expected a stay on all clauses that contradict the fundamental provisions of the Constitution.

"While the court has granted partial relief, it has not addressed the wider constitutional concerns, leaving us disappointed," Ilyas said.

"Many crucial provisions, which on the face of it end in understanding of the community at large, are completely arbitrary and have not been stayed at the interim stage. The final decision is yet to come but the community feels that the provisions not stayed at this stage shall be abused because of the prejudiced manner in which the government functionaries work," he said.

Ilyas noted that the Supreme Court's interim order has provided relief on certain aspects such as it has ruled that waqf properties cannot be dispossessed or altered in official records until a final decision is delivered.

"It stayed the provision that required a government officer's report to validate waqf ownership, observing that executive authorities cannot decide property rights of citizens," Ilyas said.

The court has stayed the operation of Section 3C of the Act and clarified that a government officer cannot have the unilateral authority to decide who is eligible to create a waqf, he said.

"It has also stayed the proviso which said that a property would cease to be treated as Waqf during an inquiry (The judgment directs that no Waqf shall be dispossessed or have its records altered until the matter is fully adjudicated by the Waqf Tribunal," he said.

The court emphasised that the revenue officer cannot be entrusted with the work of determining the title of a property keeping in view the principle of separation of powers, Ilyas said.

"Addressing the grave concerns of external interference in religious management, the Court has directed that the Central Waqf Council shall not consist of more than 4 non-Muslim members (out of 22). Similarly, the State Waqf Boards shall not have more than 3 non-Muslim members (out of 11)," he said.

Ilyas also pointed out that the court has stayed the arbitrary requirement that a person must show or demonstrate that they have been "professing Islam for at least five years" to create a waqf.

"This stay will remain in effect until the government frames rules for such determination," he said.

The Board, however, maintains that the entire amendment is a deliberate move to weaken and seize waqf properties, Ilyas said.

"It therefore demands the complete repeal of the Waqf (Amendment) Act 2025 and the restoration of the earlier Waqf Act. The refusal to stay the entire Act leaves numerous other harmful provisions in operation, including the prospective de-recognition of 'Waqf by user' and the mandatory requirement of a Waqf deed, which goes against the established tenets of Islamic law," he said.

Ilyas further said the Board's Save Waqf Campaign will continue with full strength.

"The second phase of the campaign, launched on September 1, 2025, includes dharnas, demonstrations, waqf marches, memorandums, leadership arrests, roundtable meetings, interfaith conclaves, and press conferences," he said.

Nationwide protests will culminate in a massive rally at Ramlila Maidan in Delhi on November 16 with participation from across the country, he said.

The Supreme Court on Monday put on hold a few key provisions of the Waqf (Amendment) Act, 2025, including a clause that only those practising Islam for the last five years could create waqf, but refused to stay the entire law outlining the presumption of constitutionality in its favour.

"Presumption is always in favour of constitutionality of a statute and intervention (can be done) only in the rarest of rare cases," a bench of Chief Justice B R Gavai and Justice Augustine George Masih said in its 128-page interim order on the contentious issue.

The bench further said, "We do not find that any case is made to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected."

However, in order to "protect the interest of parties" and "balancing the equities", the order stayed some provisions including the powers accorded to a Collector to adjudicate the status of waqf properties and ruled on the issue of non-Muslim participation in Waqf Boards.