The Supreme Court’s September 15, 2025, interim judgment on the Contentious Waqf (Amendment) Act, 2025, has left both opponents and supporters believing the first round favored them.
Neither of the sides feels like they are on the losing side as the top court’s interim judgment is a mixed bag, offering partial relief to petitioners while largely upholding the new law. The verdict is a careful balancing act, reflecting the court’s cautious approach to staying an entire parliamentary statute, while also addressing provisions it found to be prima facie arbitrary.
The writ petitions challenged the validity of several of the Sections of the Act on the ground that they were ultra vires the Constitution, being violative of Articles 14, 15, 19, 21, 25, 26, 29, 30, and 300A of the Constitution.
While concluding the 128-page judgment, Chief Justice BR Gavai and Justice AG Masih wrote: “In the totality of the circumstances, we do not find that any case is made out to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected.
However, to protect the interests of all parties and balance the equities during the pendency of this batch of matters, the bench issued some directions in relation to the stay on certain provisions of the Amended Waqf Act:
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. The top court also stayed the provisions (specifically parts of Section 3C) that granted wide-ranging powers to a District Collector to determine if a property was government-owned land and not a Waqf property. It held that allowing the executive to adjudicate on citizens’ property rights would violate the principle of separation of powers.
The bench declined to totally stay the provisions regarding the composition of the Waqf bodies but issued directives to limit the number of non-Muslim members. It directed that the Central Waqf Council should not have more than four non-Muslim members out of 22, and the State Waqf Boards should not have more than three non-Muslim members (out of 11), and as far as possible, the Chief Executive Officer of a Waqf Board should be from the Muslim community.
Some of these key issues on which the stay has been granted have been welcomed by the petitioners with the hope that they would successfully buttress their arguments for the final judgment.
The supporters of the law have a point to rejoice as the top court refused to grant a complete stay on the Act, citing the legal principle that there’s a presumption of constitutionality in favor of a law passed by Parliament. The onus, the court noted, lies with the petitioners to demonstrate a clear transgression of constitutional principles.
The top court said, “By now, it is a settled principle of law that the courts should be very slow in granting interim relief by way of staying the provisions of an enactment.”
“Interim relief of such a nature can be granted in rare and exceptional cases, where parties are in a position to point out that either the legislature which enacted the law lacks legislative competence or the provisions are ex facie in violation of any of the provisions in Part III of the Constitution or constitutional principles or are manifestly arbitrary.
Despite the partial relief, the top court’s refusal to stay other provisions drew criticism from various Muslim organisations, including the All India Muslim Personal Law Board (AIMPLB). Their main concerns centered on the court’s prima facie endorsement of these clauses: Abolition of ‘Waqf by User’: Compulsory Registration of all Waqfs, etc.
After the judgment, the Centre, through its law officer, said one provision in the Waqf Act required that a competent officer could determine whether a property is a waqf proper or not. The Central Government had already pointed out that this is only a tentative determination since the title can only be decided by a competent court or a tribunal.
“Based on this interpretation by the Central Government itself, the Supreme Court has stayed that provision holding that the title can be decided only by Waqf Tribunal or the Civil Court which was the argument of the Central Government,” the note by the law officer said adding that the Supreme Court has, however, injuncted all waqfs in the country not to transfer waqf property or create any charge on waqf property till the issue is decided by the tribunal. The Central Government never contested or opposed this position.
The top court refused to stay the abolition of “waqf by user,” a concept where a property could be recognized as a Waqf based on its long-term use for religious purposes without a formal deed.
Dealing with the challenge to Section 3(r) of the Amended Waqf Act, which de-recognises ‘Waqf by user’ prospectively, the bench said “…we are also of the view that 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.”
“After noticing such instances of misuse, if the legislature finds that the concept of “Waqf by User” has to be abolished and that too prospectively, in our view, the same cannot prima facie be said to be arbitrary. In any case, as submitted by the learned Solicitor General, the deletion of clause (i) of Section 3(r) of the Original Waqf Act would come into effect from the date on which the impugned Act came into effect.
It was observed by the top court that the requirement for registration is not a new concept and has been a part of previous Waqf legislations, and “We are, therefore, of the prima facie view that such a provision cannot be held to be arbitrary or discriminatory.”
The Supreme Court’s interim order is a testament to its cautious judicial approach. It has temporarily protected Waqf properties from arbitrary executive action and has put a check on the controversial “faith test” provision. However, by not staying the entire Act, the top court has implicitly validated the Government’s argument for stricter regulation of Waqf properties, citing a history of mismanagement and misappropriation.
The judgment leaves several fundamental constitutional questions unanswered and sets the stage for a prolonged legal battle over the final validity of the Act. The differing reactions from various Muslim groups, with some welcoming the partial relief and others expressing disappointment, highlight the complexity and sensitivity of the issue. The fate of hundreds of thousands of unregistered Waqf properties now hinges on the final judgment.
Writer is a Senior Journalist covering legal affairs