Kiran Raj

The Supreme Court of India Division Bench of Chief Justice B.R. Gavai and Justice Augustine George Masih issued interim directions on the Waqf (Amendment) Act, 2025, granting a limited stay on specific provisions while protecting possession of properties pending adjudication before Waqf Tribunals. The Court stayed the clause requiring proof of practicing Islam for five years under Section 3(r) until State rules are framed; stayed the proviso and sub-sections (3) and (4) of Section 3C; directed that no dispossession or record changes occur until Tribunal determination, with no third-party rights created in the interim; capped the number of non-Muslim members in the Central Waqf Council and State Waqf Boards; and advised, where possible, appointment of a Muslim Chief Executive Officer. The order arises from petitions challenging amendments concerning “Waqf by user,” government property, institutional composition, and registration.

The petitions challenge several amendments introduced by the Waqf (Amendment) Act, 2025 to the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995. At the interim stage, the Court noted that the most contentious issues concerned: the prospective de-recognition of “Waqf by user,” the special mechanism governing claims over Government property, and the altered composition of the Central Waqf Council and State Waqf Boards. The Bench proceeded to consider all questions raised on interim relief.

Also Read: Supreme Court | Uttarakhand Doctor Acquitted in Homicide Case on Grounds of Private Defence | Right of Self-Preservation Not to Be Weighed on Golden Scales

An assurance recorded from the Solicitor General before an earlier Bench stated that, until the next date of hearing, there would be no appointments to the Central Waqf Council or State Waqf Boards; any such appointments could be declared void; and no waqf—including a “Waqf by user”—would be de-notified or have its character or status changed.

On the petitioners’ side, submissions attacked the five-year “practising Islam” condition introduced in Section 3(r), the bar on dedication of property not owned by the dedicator, and the deletion of “Waqf by user,” terming these arbitrary and discriminatory. Objections also targeted the inclusion of non-Muslim members in the Central Council and State Boards and the possibility of appointing a non-Muslim Chief Executive Officer, along with the shift from election to government nomination. Further challenge was mounted to Section 3C’s inquiry mechanism and its proviso that treats property as not waqf pending the designated officer’s report, and to provisions affecting Scheduled Tribe lands under Section 3D.

For the Union of India, submissions stressed that the amendments regulate secular administration, not religious practice. The judgment records reliance on Section 9(4) to show the Central Waqf Council’s remit over financial and administrative matters (financial performance, surveys, deed maintenance, revenue records, encroachment, and audits). It was submitted that, at most, the Council could include four non-Muslim members, and State Boards at most three, depending on ex officio composition. The Union also pointed to instances cited as misuse of “Waqf by user,” and stated that the deletion of that concept operates prospectively.

To frame the dispute, the Court reproduced and discussed the text of the key amended provisions. Section 3C states that Government property identified or declared as waqf shall not be deemed waqf, empowers designation of a senior officer to inquire, and provides for record corrections; its proviso specifies that such property shall not be treated as waqf until the report is submitted. Sections 9 and 14 set out the composition and directive powers of the Central Waqf Council and provide for nomination-based State Boards. Section 23 provides for a full-time Chief Executive Officer, ex officio Secretary, under the Board’s administrative control. Section 36 (including sub-section (10)) addresses registration requirements and restricts proceedings on behalf of unregistered waqf after a specified period, subject to condonation of delay.

On the five-year practice requirement in Section 3(r): “Prima facie, we are of the view that such a provision cannot be said to be arbitrary or discriminatory. 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 practicing Islam for at least 5 years or not, such a provision cannot be given effect to immediately.”

“We are, therefore, of the considered view that unless the rules are made by the Central Government by exercising its rule-making power under Section 109 of the Amended Waqf Act, 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.”

On ownership as a condition for dedication: “It is to be noted that paragraph 176 of the Treatise ‘Principles of Mahomedan Law (20th Edition)’ by Mulla would show that only an ‘owner’ of a property can create a waqf… A charity cannot be done by a person of a property or money owned by a third person or a property owned by the Government. In that view of the matter, we are of the prima facie view that such a requirement cannot be held to be arbitrary.”

On deletion of “Waqf by User”: “If the legislature, in 2025, finds that on account of the concept of ‘Waqf by User’, huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary. The said provision would, therefore, not apply retrospectively.”

On Section 3C (Government property and wrongful declaration): “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.”

“A provision to determine the question as to whether any property is a Government property or not by designating a Senior Officer above the rank of Collector… prima facie cannot be held to be arbitrary. However, at the same time, we are of the considered view that the proviso to sub-section (2) thereof, is, at least, prima facie not sustainable in law.”

“A provision, by way of which even before an inquiry is conducted… providing that such a property cannot be treated as waqf property in the interregnum, is, at least, prima facie arbitrary… 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.”

“The question of determination of the title of a property will have to, in our considered opinion, be resolved by a judicial or quasi-judicial authority.”

“However, to balance the equities and to protect the valuable Government properties, it is also imperative that pending such a determination by the Tribunal, the Mutawallis of such of the waqfs do not create any third-party rights… until the final adjudication by the Tribunal is made.”

On Section 3D (protected monuments/areas): “A provision such as Section 3D of the Amended Waqf Act… cannot, therefore, be said to be prima facie arbitrary so as to stay the same.”

On the composition caps for the Central Waqf Council and State Boards (Sections 9 and 14): “We… propose to issue a direction that the Central Waqf Council should not have non-Muslim members exceeding 4 in number and 3 non-Muslim members insofar as Board is concerned.”

On Section 23 (Chief Executive Officer): “Ordinarily, the person occupying the post of the Chief Executive Officer would normally be a person belonging to the Muslim community. We, therefore, do not find that a prima facie case is made out for staying the said provision. However, there was an opinion that as soon as possible an endeavour should be made to appoint a Chief Executive Officer who belongs to Muslim community.”

On registration and documentary requirements (Section 36 and prior regime): “Right from 1923, in all the enactments we have referred to, there was a requirement of registration of waqfs. We are, therefore, of the view that if for 30 long years, the Mutawallis had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary… the same cannot be said to be arbitrary.”

The Court issued the following directions to “balance the equities during pendency of this batch of matters”:

(i) “The following part of clause (r) of Section 3 of the Amended Waqf Act—‘any person showing or demonstrating that he is professing Islam for at least five years’—shall stand stayed until the rules are framed by the State Government for providing a mechanism for determining the question as to whether a person has been practicing Islam for at least five years or not.”

(ii) “The proviso to sub-section (2) of Section 3C of the Amended Waqf Act… ‘Provided that such property shall not be treated as waqf property till the designated officer submits his report.’ and the provisions of sub-sections (3) and (4) of Section 3C of the Amended Waqf Act… ‘(3)… [the designated officer] shall make necessary corrections in revenue records… (4) The State Government shall… direct the Board to make appropriate correction in the records.’ shall stand stayed.”

(iii) “It is directed that unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the Tribunal and subject to further orders by the High Court, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the Board shall be affected. However, upon commencement of an inquiry under Section 3C of the Amended Waqf Act till the final determination by the Tribunal under Section 83 of the Amended Waqf Act, subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties.”

Also Read: Rajasthan High Court Upholds Ban on Meat Shops Near Public Temples | Licences Cancelled for Establishments Within 50 Meters Under Municipal Act

(iv) “It is directed that insofar as Central Waqf Council constituted under Section 9 of the Amended Waqf Act is concerned, it shall not consist of more than 4 non-Muslim members out of 22. Equally, insofar as the Board constituted under Section 14 of the Amended Waqf Act is concerned, it is directed that it shall not consist of more than 3 non-Muslim members out of 11.”

(v) “Though, we are not inclined to stay the provision of Section 23 of the Amended Waqf Act, we direct that as far as possible, an effort should be made to appoint the Chief Executive Officer of the Board who is the ex-officio Secretary from amongst the Muslim community.”

(vi) “We clarify that what has been observed by us hereinabove is upon our prima facie consideration for the purpose of examining as to whether an interim stay should be granted or not to the impugned Act or the provision(s) contained therein. The observations made hereinabove will not prevent the parties from making submissions with regard to the validity of the provisions contained in the Amended Waqf Act or any of the provision(s) therein.”

Case Title: IN RE: THE WAQF AMENDMENT ACT, 2025 (1).

Neutral Citation: 2025 INSC 1116.

Case Number: Writ Petition (Civil) No. 276 of 2025 (with connected matters).

Bench: Chief Justice B.R. Gavai; Justice Augustine George Masih.