Supreme Court stays key provisions of Waqf Amendment Act but no stay on registration of Waqfs

The Supreme Court on Monday stayed certain provisions of the Waqf (Amendment) Act, 2025, until petitions challenging the amendment's validity are finally decided.

A Bench of Chief Justice of India (CJI) BR Gavai and Justice Augustine George Masih passed the interim order today.

The Court held that a case was not made out to stay the entire amendment, but stayed certain provisions, including the following:

- The requirement that a person has to be a practicing Muslim for 5 years before he can dedicate a property as waqf (Section 3(r)) has been stayed until rules are framed for examining whether person is a practicing Muslim or not. Without any such rule/ mechanism, the provision will lead to an arbitrary exercise of power, the Court said.

- A proviso to Section 3C - which said that properties cannot be treated as waqfs until a designated officer (Collector) submits his report on whether the waqf declaration involved any property encroachment - has been stayed. The Court held that the Collector cannot be permitted to adjudicate the rights of personal citizens as this will violate separation of powers.

However, the Court refused to stay the requirement for registration of waqf properties, considering that this aspect was there in the earlier laws as well. In response to a concern that the time limit provided for registration may have to be modified, the Court said that it has addressed this aspect in its order.

"We have held registration existed since 1995 to 2013.. and again now. So we have held registration is not new," the CJI said while dictating operative portions of the interim order.

Further Court did not stay the operation of Section 23 of the Amendment Act, which deals with the appointment of an ex-officio member to waqf boards, but added that this officer should be a Muslim, as far as possible.

"We direct that as far as possible, an effort should be made to appoint the Chief Executive Officer of the Board who is the exofficio Secretary from amongst the Muslim community," the Court said.

The Court also addressed the provision on the inclusion of non-Muslims in waqf bodies. The Bench made it clear that the Central waqf council shall not have more than 4 non-Muslims (out of 22 members), and that State waqf boards cannot have more than 3 non-Muslim members (out of 11 members). The Court issued the directive to c

The order also did not stay the government's decision to delete "waqf-by-user" from the statutory definition of "waqf." However, it granted interim protection to waqfs-by-users (property considered waqf based on long-standing, continuous public use for religious or charitable purposes, even without formal legal documents).

In this regard, the Court stated that revenue records concerning existing waqfs cannot be altered by Collectors right away (Section 3C), unless a waqf tribunal first decides on such disputes, which decision can further be subjected to an appeal before the High Court.

"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," the judgment stated.

Moreover the Court also declined to stay Sections 3D (which removes waqf status for ASI monuments), and 3E (which bars tribal lands from being declared waqfs) of the Amendment Act as well as the deletion of Section 104 of earlier Waqf Act. The earlier Section 104 allowed non-Muslims also to create waqfs.

“In any case, if such a person desires to donate his property, he can do so by giving or donating it to a trust or creating a trust for any of the purposes which were included in Section 104 of the Original Waqf Act. Further, it appears that the said amendment has been brought to make it consistent with the definition of waqf under Section 3(r) of the Amended Waqf Act, which provides that waqf can be created only by a person showing or demonstrating that he is practicing Islam for at least five years,” the Court said.

The Court also clarified that its observations are only prima facie in nature and will not prevent parties from making further submissions on the validity of the Act.

The Lok Sabha passed the Waqf (Amendment) Act on April 3, while the Rajya Sabha cleared it on April 4. The amendment Act received Presidential assent on April 5.

The new law amended the Waqf Act of 1995 to address the regulation of Waqf properties, which are properties dedicated exclusively for religious or charitable purposes under Islamic law.

A batch of petitions was filed before the top court challenging the amendment's validity, including by Congress Member of Parliament (MP) Mohammad Jawed and All India Majlis-e-Ittehadul Muslimeen (AIMIM) MP Asaduddin Owaisi. More such petitions followed in the ensuing days.

The petitioners argued that the amendments selectively target Muslim religious endowments and interfere with the community’s constitutionally protected right to manage its own religious affairs.

Six Bhartiya Janta Party-ruled States also moved the Supreme Court in support of the amendment. The intervention applications were filed by the States of Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh and Assam.

At the core of the challenge is the removal of 'waqf by user' from the statutory definition of waqf.

According to the petitioners, this omission would deprive historical mosques, graveyards and charitable properties, many of which have existed for centuries without formal waqf deeds, of their religious character.

In response, the Union government has maintained that the Waqf (Amendment) Act, 2025, was brought in to curb the misuse of waqf provisions and tackle unauthorized claims over public properties.

The Centre added that the exclusion of "waqf by user" from the definition of waqf does not curtail the right to dedicate property to God, but merely regulates the form of dedication in keeping with statutory requirements.

On the objections regarding the inclusion of non-Muslims in the Central Waqf Council and State Waqf Boards, the Centre said that such non-Muslims form a "microscopic minority" and that their presence is meant to give inclusivity to the bodies.

Representing the Central government, Solicitor General Tushar Mehta also argued that tribal lands were being grabbed under the garb of waqf.

On April 17, the Central government assured the Court that it would not enforce several key provisions of the Act for the time being.

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