Waqf Amendment Act 2025: Selective Stay and Constitutional Balance

Source: The Indian Express 

Introduction 

The Supreme Court delivered its comprehensive verdict on multiple petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025. A Bench comprising Chief Justice of India BR Gavai and Justice AG Masih, in their 128-page judgment, adopted a measured approach by providing limited interim relief while expressing that several challenged provisions did not appear prima facie arbitrary. The Court's selective stay demonstrates judicial restraint in balancing religious rights with constitutional governance principles. 

What was the Background and Court's Approach? 

• The petitions sought a complete stay on the operation of the Waqf (Amendment) Act, 2025, pending final determination of its constitutional validity. Rather than issuing a blanket stay, the Supreme Court conducted a provision-by-provision analysis, staying only those sections that raised immediate constitutional concerns while allowing others to remain operational based on practical considerations and legislative rationale. 

Key Provisions: What the Supreme Court Stayed and Upheld 

1. Practicing Muslim Requirement for Waqf Creation - Limited Stay:

• Court's Decision: Section 3(r) stayed until rules are framed. 
• The Court acknowledged the legislative intent behind requiring waqf creators to demonstrate practicing Islam for at least five years, recognizing the potential for fraudulent conversions to evade legal obligations. However, the provision was stayed due to the absence of procedural mechanisms for verification. 
• The Court observed: "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." 
• Rationale: While the substantive requirement was deemed reasonable, the lack of implementation framework necessitated interim suspension. 

2. Deletion of 'Waqf by User' Concept - No Stay:

• Court's Decision: Upheld the deletion as constitutionally valid. 
• The Court accepted the government's argument that removing "waqf by user" was necessary to prevent encroachment of government properties. Solicitor General Tushar Mehta's submission that the deletion operates prospectively was crucial in the Court's reasoning. 
• Constitutional Balance: The Court clarified that existing waqf properties, including those created through waqf-by-user, remain protected until judicial determination by waqf tribunals or High Courts. 

3. Automatic De-recognition Provision – Stayed:

• Court's Decision: Section 3C completely stayed. 
• This provision, allowing government officials to derecognize existing waqfs pending inquiry, was struck down for violating separation of powers doctrine. The Court held that property title determination must remain within judicial or quasi-judicial domains. 
• Constitutional Principle: "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." 

4. ASI Monument Restrictions - No Stay:

• Court's Decision: Section 3D upheld. 
• The provision voiding waqfs on properties notified as ancient monuments was sustained, with the Court finding no violation of religious rights since customary practices can continue under existing archaeological legislation. 

5. Tribal Land Protection - No Stay:

• Court's Decision: Section 3E upheld. 
• The bar on declaring tribal lands as waqf was justified as protecting marginalized communities. The Court emphasized the constitutional imperative to safeguard Scheduled Tribes' interests. 
• Social Justice Consideration: The provision was seen as having clear nexus with protecting vulnerable populations rather than arbitrary restriction. 

What are the Administrative and Structural Changes? 

Non-Muslim Participation in Waqf Bodies: 

• Court's Clarification: Capped non-Muslim membership. 
• While not staying provisions allowing non-Muslim participation, the Court issued specific directions limiting non-Muslim members to maximum four in Central Waqf Council and three in State Boards, based on government undertakings. 
• Balanced Approach: The judgment ensured Muslim majority in waqf bodies while permitting limited inclusive participation. 

What are the Registration Requirements and Procedural Changes? 

Provisions Upheld: 

• Mandatory registration of all waqfs under Section 36. 
• Application of Limitation Act, 1963 to waqf disputes. 
• Deletion of provisions allowing non-Muslim waqf creation. 
• Ex-officio government appointment as CEO (with preference for Muslim candidates). 

What are the Implications for Waqf Administration? 

Immediate Practical Impact: 

Protected Elements: 

• Existing waqf properties remain secure until judicial determination. 
• Registration processes can continue. 
• ASI monument restrictions take immediate effect. 
• Tribal land protections operational. 

Suspended Elements: 

• Practicing Muslim verification pending rule formulation. 
• Administrative de-recognition powers stayed. 

Long-term Structural Changes 

• The judgment sets framework for modernized waqf administration while preserving core religious autonomy.  
• The emphasis on judicial determination of property disputes strengthens rule of law while the registration requirements enhance transparency.

Conclusion 

The Supreme Court's nuanced approach to the Waqf Amendment Act 2025 reflects sophisticated constitutional adjudication that respects both religious autonomy and constitutional governance principles. By staying problematic provisions while upholding reasonable reforms, the Court has provided a framework for modernizing waqf administration without compromising fundamental rights. The judgment's emphasis on judicial determination of property disputes and procedural safeguards demonstrates commitment to rule of law while the acceptance of anti-encroachment measures shows recognition of legitimate state interests.