SC Interim Order on Waqf Amendment Act

Source: Indian Express  

Introduction 

On September 15, 2025, a Constitution Bench comprising Chief Justice B.R. Gavai and Justice A.G. Masih delivered a significant interim order in response to 65 petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025. The order demonstrates the apex court's nuanced approach to balancing religious autonomy with administrative oversight, while addressing fundamental constitutional concerns regarding the separation of powers and Article 26 of Indian Constitution guarantees. 

What was the Background of the Case? 

• On 15th September 2025, the Supreme Court delivered an important interim order on the Waqf (Amendment) Act, 2025. The Act was passed by Parliament in April 2025 and brought major changes to how Waqf properties are managed in India. A Constitution Bench led by Chief Justice B.R. Gavai and Justice A.G. Masih heard 65 petitions challenging the new law. 
• The petitioners included prominent political leaders like AIMIM MP Asaduddin Owaisi, TMC MP Mahua Moitra, and RJD MP Manoj Kumar Jha, along with various Islamic organizations. They argued that the new law violated Article 26 of the Constitution, which gives religious communities the right to manage their own religious affairs. 

What the Court Decided? 

• The Supreme Court refused to stop the entire Act but put a temporary hold on some specific provisions. Chief Justice Gavai explained that "only in the rarest of rare cases a legislation can be stayed by the Court" and noted that "no case was made to stay the provisions of the entire statute." 
• The court said it would "protect the interest of all the parties and balance the equities" while the case is pending final hearing. 

What are the Key Provisions Stayed by Court? 

• Powers Given to District Collectors 
  • The court stopped Section 3C of the Act, which gave district collectors power to decide whether a Waqf property belongs to the government. The most problematic part was that once such an inquiry started, the property would immediately lose its Waqf status even before any final decision. 
  • Chief Justice Gavai clearly stated that "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 directed that Waqf properties will keep their status during any inquiry, but no new rights can be created on disputed properties until the matter is finally decided by a Waqf Tribunal. 
• Five-Year Practice Requirement 
  • The new Act required a person to practice Islam for at least five years before they could create a Waqf. The court stayed this provision until state governments create proper rules to check whether someone has been practicing Islam for five years. 
  • The Chief Justice observed that "Without such a mechanism, the provision will lead to an arbitrary exercise of power." However, the court also noted that this five-year requirement "is not per se arbitrary as it was necessary to prevent misuse."  
  • The court recognized that people might convert to Islam just to misuse Waqf laws and avoid creditors. 
• Non-Muslim Members in Waqf Boards 
  • The court set clear limits on non-Muslim representation in Waqf bodies. It directed that the Central Waqf Council (which has 22 members) cannot have more than 4 non-Muslim members. Similarly, State Waqf Boards (with 11 members) cannot have more than 3 non-Muslim members. 
  • Interestingly, the court did not stop the provision allowing a non-Muslim to be the CEO of State Waqf Boards but suggested that "as far as possible, efforts should be made to appoint the Chief Executive Officer from amongst the Muslim community." 

What the Court did Not Stayed? 

• End of "Waqf by Use" 
  • The court allowed the removal of the old concept of "Waqf by use." This concept meant that if land was used for Muslim religious purposes for a long time, it could be considered a Waqf even without formal registration. The government argued this was being misused to grab government lands. 
• Time Limits for Legal Claims 
  • The court did not interfere with applying the Limitation Act to Waqf properties. Earlier, Waqfs could file cases against encroachment anytime without any time limit. Now they must file cases within specific time periods, just like everyone else. 
  • The court observed that removing this special exemption eliminates discrimination that existed earlier. 
• Registration Requirement 
  • The court did not stop the requirement for Waqf registration, noting that this requirement existed from 1995 to 2013 as well, so it was not entirely new. 

Conclusion 

This interim order shows the Supreme Court trying to be fair to both sides. On one hand, it has protected the Muslim community's religious rights by stopping rules that could be unfair to them. On the other hand, it has allowed the government to continue with changes that genuinely aim to stop fraud and misuse of Waqf properties. 

The final decision in this case will be very important. It will decide how much control the government can have over religious properties and what limits the Constitution places on such government interference. This judgment will guide future cases involving religious freedom and government regulation.