Supreme Court stays rule mandating 5-year Islam practice to create Waqf

New Delhi: The Supreme Court on Monday issued an interim stay on several contentious provisions of the Waqf (Amendment) Act, 2025, following multiple petitions challenging the constitutionality of the new law.

A Bench headed by Chief Justice BR Gavai stayed the provision that mandates a person must be a practitioner of Islam for at least five years to create a Waqf. The Bench noted that this provision would remain suspended until State Governments frame clear rules for verifying whether a person qualifies as a practitioner of Islam under the law.

The Court also stayed the clause that empowers a government-designated officer to unilaterally determine whether a Waqf property has encroached upon government land. The Court observed that allowing an executive officer to decide on the civil rights of individuals undermines the principle of separation of powers and cannot be permitted. 

However, the Bench clarified that until the Waqf Tribunal resolves such disputes, no third-party rights shall be created with respect to the contested properties.

On the issue of religious representation, the Court declined to stay the provision allowing nomination of non-Muslim members to the Waqf boards. However, it directed that, as far as possible, ex officio members of the board should be Muslims. It further stated that the Central Waqf Council should not have more than four non-Muslim members, and State Waqf Boards should limit non-Muslim members to a maximum of three.

Despite this, the Court did not interfere with the provision mandating registration, saying that it is not a new requirement, as this condition was there in the previous enactments of 1995 and 2013 as well. However, the Court extended the deadline for registration.

The law has faced strong opposition from petitioners, while the Union government argued that it is necessary to prevent misuse of Waqf properties and improve transparency in their management. The CJI-led bench, which also includes Justice AG Masih, concluded hearings on May 22 after three sessions of arguments presented by both the petitioners and the Centre. 

The validity of the amended Act, which received Presidential assent and came into force on April 5, 2025, was challenged in the Supreme Court by several parties, including AIMIM MP Asaduddin Owaisi and Congress MP Mohammad Jawed.

The petitioners contend that the amendment is discriminatory and unfairly targets the Muslim community. Senior advocate Kapil Sibal, representing the petitioners, described the amended law as, "unconstitutional" and "arbitrary", particularly objecting to a provision that allows the suspension of a property's Waqf status during an ongoing investigation.

Joining the argument, senior advocate Rajeev Dhavan emphasised the religious and social importance of Waqf in the Muslim community. "Waqf is not just a legal entity, but a spiritual and social institution deeply woven into the lives of Muslims," said Dhavan, citing past Supreme Court rulings. He also argued that no external authority or officer has the jurisdiction to determine what constitutes an essential religious practice.

Earlier, Solicitor General Tushar Mehta, the second-highest law officer of the Centre, argued that the concept of Waqf is not essentially a religious practice. He said that Waqf boards administering such properties were engaged in secular and administrative functions.

The new law amends the Waqf Act, 1995, to regulate Waqf properties— religious endowments meant for charitable or religious purposes under Islamic law. On April 17, a Bench led by then Chief Justice Sanjiv Khanna declined to stay the Waqf (Amendment) Act, 2025, after the Centre assured the Supreme Court that the controversial provisions would not be enforced for now.

(With IANS  and LiveLaw inputs)