SC stays certain provisions of Waqf (Amendment) Act 2025, refuses to stay entire Act

NEW DELHI: The Supreme Court on Monday refused to stay the entire Waqf (Amendment) Act 2025, but put on hold certain provisions pending the final adjudication of petitions challenging the constitutional validity of the Act.

A bench of Chief Justice of India BR Gavai and Justice Augustine George Masih observed that some sections of the amended Act need some protection. Passing the interim order, the bench stayed a provision in the Act that a person should be a practitioner of Islam for five years to create a Waqf.

It said the provision will be stayed till rules are framed on determining whether a person is a practitioner of Islam. The bench said that without any such rule or mechanism, the provision will lead to an arbitrary exercise of power.

The apex court also stayed the provision allowing the collector to decide the dispute whether a Waqf property has encroached upon a government property. It said the collector cannot be permitted to adjudicate rights of personal citizens, and this will violate the separation of powers.

The top court held that till adjudication happens by the tribunal, no third-party rights can be created against any parties, and the provision dealing with such powers to the Collector shall remain stayed.

The apex court also said that the provision that not more than three non-Muslim members should be included in the state Waqf Board, and that, in total, not more than four non-Muslims shall be included in the Central Waqf Councils for now. The court also noted that as far as possible, the CEO of the Board should be a Muslim.

It, however, did not interfere with the provision mandating registration, considering that it is not a new requirement, as this condition was there in the previous enactments of 1995 and 2013 as well. The top court passed the interim order on several petitions challenging the Constitutional validity of Waqf Act.

During the hearing, the Centre had argued in favour of the provision barring non-Muslims from creating Waqfs. It had said that only in the 2013 amendment, non-Muslims were given such rights, but in the 1923 law, they were not allowed to create Waqfs, as there were concerns that this could be used as a device to defraud creditors. It had also defended the five-year practice condition to be eligible for the creation of Waqf.

A batch of petitions challenging the Act was filed before the apex court, contending that it was discriminatory towards Muslim community and violates their fundamental rights. Six BJP-ruled states had also moved the apex court in the matter, in support of the amendment.

All India Majlis-e-Ittehadul Muslimeen (AIMIM) Member of Parliament Asaduddin Owaisi, Congress MPs Mohammad Jawed and Imran Pratapgarhi, AAP MLA Amanatullah Khan, MP and President of the Azad Samaj Party Chandra Shekhar Azad, Samajwadi Party MP from Sambhal Zia Ur Rehman Barq, Rajya Sabha MP Manoj Jha and Faiyaz Ahmad, Dravida Munnetra Kazhagam (DMK) through its MP A Raja, President of the Islamic cleric’s body Jamiat Ulema-i-Hind Maulana Arshad Madani, Kerala Sunni scholars’ body Samastha Kerala Jamiatul Ulema, Social Democratic Party of India, Indian Union Muslim League, and NGO Association for Protection of Civil Rights, All India Muslim Personal Law Board (AIMPLB) among others moved the top court. They had strongly objected to the amendments passed by Parliament for being “arbitrary, discriminatory and based on exclusion.”

The Lok Sabha passed the Waqf (Amendment) Act on April 3, while the Rajya Sabha cleared it on April 4. President Droupadi Murmu on April 5 gave her assent to the Waqf (Amendment) Bill, 2025, which was earlier passed by Parliament after heated debates in both Houses. (ANI)