On 15-09-2025, the Supreme Court decided a bunch of writ petitions filed to challenge the validity of several sections of the Waqf (Amendment) Act, 2025, stating that they were ultra vires and violated the Constitution of India. The judgment was delivered by Chief Justice B.R. Gavai and Justice Augustine George Masih.
The Union of India (Union) submitted that in an earlier hearing, the Court had identified specific issues for consideration at the interim stage. However, this position was opposed by the petitioners, stating that there was nothing on record to this effect.
The petitioners contended that even though the impugned Act said that it was enacted to protect Waqfs, the real intention behind it was to take away or expropriate the Waqf properties. They submitted that till 2025 the registration of a Waqf was not mandatory and that prior to 1954, registration of a ‘Waqf by user’ was not necessary. Further, the provision of Section 3D of the amended Act was challenged, and it was submitted that under various enactments from 1904 to 1958, the right to religious practices was preserved. It was also submitted that the impugned Act infringes the rights of citizens to continue their religious practices, which is violative of Articles 14, 15, 25, and 26 of the Constitution.
The petitioners submitted that the amendment to Section 3(r), which requires that one has to show or demonstrate that he has been practicing Islam for at least 5 years, for the declaration of any movable or immovable property as Waqf, is totally discriminatory and arbitrary. Further, amendments to Sections 3C, 3D, 3E, 9, 14, 23, 36, 107, and 108 of the Waqf Act were also opposed.
The Union submitted that the requirement for registration of Waqfs and the amendments introduced by the impugned Act arose from long-standing issues such as encroachments and mismanagement of Waqf properties. They emphasized that the practice of declaring government land as Waqf under the concept of ‘Waqf by user’ had led to widespread misuse and loss of state assets to unlawful claimants. The Union highlighted judicial precedents, including the judgment in State of Andhra Pradesh v. Andhra Pradesh State Wakf Board[1] , which underscored the need to rectify such encroachments and prevent further loss of government property.
The Union further defended the inclusion of non-Muslim members in the Central Waqf Council and State Waqf Boards as a measure to bring in transparency and accountability. They submitted that these bodies primarily exercise administrative and advisory functions, governing secular and financial matters rather than religious practices. The Union assured that Muslim members will have majority representation and the inclusion of non-Muslim members is to foster inclusivity and enhance governance standards.
Addressing the contention on the use of ‘protected monuments’, the Union explained that the amended provisions aim to reconcile the preservation of such monuments with religious usage rights, aligning with the Ancient Monuments and Archaeological Sites and Remains Act, which safeguards heritage structures but permits customary religious activities within them.
Responding to concerns regarding restrictions on land in Scheduled and Tribal areas, the Union submitted that such restrictions have constitutional backing under the protective schemes in the Fifth and Sixth Schedules, designed to prevent alienation of tribal lands and preserve the cultural rights of indigenous communities.
The petitioners’ concerns about the retrospective impact of certain provisions were noted; however, the Court observed that the amendments concerning ‘Waqf by user’ operate prospectively, and existing Waqfs duly registered prior to the Act’s commencement remain protected, except in cases involving disputes or government claims.
The Court, after analysing the legislative history tracing back to the Mussalman Wakf Act, 1923, the Bengal Wakf Act, 1934, and subsequent enactments, recognized the persistent legislative endeavour to regulate Waqfs and address issues of mismanagement and encroachment. The Court noted that mandatory registration provisions and penalties for non-compliance have been an integral part of Waqf legislation since the early 20th century.
On the merits, the Court upheld the principle that legislative enactments enjoy a presumption of constitutionality. It held that mere allegations of arbitrariness or discrimination are insufficient to warrant an interim stay of the entire statute without clear, manifest violation of constitutional provisions or legislative competence.
Regarding the provision requiring a person to demonstrate practicing Islam for at least five years before creating a Waqf, the Court found this provision rationally connected to the legislative goal of preventing fraudulent creation of Waqfs by those whose religious identity may be transient, for holding property. However, since no procedures have yet been formulated for such ascertainment, the Court directed that this provision shall remain stayed until appropriate rules are framed.
The Court upheld the deletion of ‘Waqf by user’ due to its propensity for misuse and the resultant adverse impact on government and public properties. It further stayed certain provisions in Section 3C relating to determination of status of property as government land by designated officers pending adjudication by specially constituted Tribunals, citing concerns over violation of the principle of separation of powers.
The Court held affirmatively that the issue of ownership and title to land identified as government property should be adjudicated by tribunals or courts rather than administrative officers alone. Pending such proceedings, no dispossession of Waqf property or alteration in records shall be effected, and no third-party rights shall be created.
On the inclusion of non-Muslim members in the Waqf administrative bodies, the Court, guided by assurances from the Union, directed that the Central Waqf Council shall not have more than four non-Muslim members and the State Boards not more than three. It opined that the majority presence of Muslim members suffices to allay concerns of undue interference in religious affairs.
The provisions relating to registration and mandatory execution of Waqf deeds were upheld as necessary to ensure proper governance and prevent fraudulent claims. The court found the introduction of limitation periods on suits relating to Waqf property reasonable and consistent with general principles of law.
The Court rejected the contention that the impugned Act’s amendments interfere impermissibly with religious freedoms under Articles 25 and 26, noting that the administrative reforms concern secular governance aspects, and the fundamental rights of religious exercisers remain intact.
In conclusion, the Court dismissed the prayer to stay the entire Waqf (Amendment) Act, 2025, but granted partial interim relief limited to:
i. Staying the enforcement of the requirement for the five-year demonstration of practicing Islam till procedural safeguards are enacted;
ii. Staying certain provisions empowering administrative officers to declare government ownership before adjudication;
iii. Directing that no action be taken to dispossess or alter records of Waqf property without due order of competent judicial/tribunal authority;
iv. Encouraging appointment of Muslim individuals to key administrative positions, where feasible.
The ruling emphasized that these observations are of an interim nature and would not prejudice final judicial adjudication on constitutional validity.
[1] (2022) 20 SCC 383
