Interim Order, Court Observations: What You Should Know About Waqf Order
The Supreme Court on Monday has issued an interim stay on certain provision of the Waqf (Amendment) Act, 2025.
- Date & Time:
- |
- Views: 27
- |
- From: India News Bull
New Delhi:
The Supreme Court has issued an interim stay on specific provisions of the Waqf (Amendment) Act, 2025 on Monday. Chief Justice BR Gavai and Justice AG Masih, while presiding over the bench, refused to stay the entire Act, noting that laws passed by Parliament carry a presumption of constitutionality, with stays granted only in exceptional circumstances. The Court determined that the circumstances did not warrant a complete stay of the Waqf Act.
The interim stay applies to three specific provisions: the requirement of being a 'practicing Muslim' for five years to establish a waqf, District Collectors' authority to decide on disputed properties, and the concept of 'waqf by user'.
Understanding the Supreme Court's Decision
On the requirement of being a 'practicing Muslim' for five years - The Court did not find this provision inherently arbitrary but suspended its implementation until central and state governments create a mechanism to verify if an individual has indeed practiced Islam for the stipulated five-year period.
Regarding District Collector's powers - The Court stayed this provision that authorized senior civil servants to adjudicate disputed waqfs, potentially leading to widespread denotification of properties. The Court asserted that such dispute resolution, including cases where the government claims ownership of waqf properties, falls under judicial purview.
The Court stipulated that unless ownership issues under Section 3C of the amended Act (concerning government-claimed waqfs) are resolved by a waqf tribunal, subject to further orders from the relevant High Court, waqfs in question will maintain possession, with no changes to revenue records or board entries.
Additionally, the Court prohibited creation of third-party rights in such cases until it resolves this matter.
Concerning waqf-by-user - Initially, the Court viewed the abolition of waqf-by-user as not arbitrary. This concept recognizes property as waqf based on consistent religious public use rather than formal dedication.
The amendment removed a section from the 1995 Act that acknowledged this concept.
For existing waqf-by-user cases, the Court ruled that revenue records cannot be altered without tribunal adjudication and High Court consideration of any appeals.
Petitioners argued that eliminating this provision would affect waqfs without registration deeds, primarily historical properties.
However, the Court highlighted that the original 1923 law required waqf registration, noting that failure to register for over a century precluded complaints now.
Addressing concerns about unavailable deeds, the Court pointed out that the original law did not mandate deed copies for registration applications.
When deeds are unavailable, applications can proceed with all known particulars regarding the waqf's origin, nature, and objectives.
Regarding non-Muslims on waqf boards - The Court established that the Central Waqf Council may include no more than four non-Muslim members out of 22. Similarly, Waqf Boards can have a maximum of three non-Muslims among 11 members.
On the Waqf Board Chief Executive - While the Court did not stay provisions governing CEO appointments, it directed that efforts should be made to appoint Chief Executive Officers (who serve as ex-officio Secretaries) from the Muslim community whenever possible.
Waqf as a 'Clever Device'
In its interim order, the Court observed that the legislature had noted waqfs were commonly viewed as 'clever devices' for tying up property to evade creditors and legal obligations under the pretext of religious dedication.
"Therefore, the possibility of any person not belonging to the Muslim community, converting to the Islamic religion only in order to take benefit of the protection of Waqf Act, so as to defeat creditors and evade the law under the cloak of a plausible dedication cannot be ruled out."
The Court also remarked that "many persons, who, under relevant personal laws, are not entitled to marry a second woman during subsistence of their first marriage, and who are liable to be prosecuted for the offence of bigamy in such a case, in order to avoid the rigour of criminal offence, convert themselves into Islamic religion."
Consequently, the Court held that the amended law, designed to ensure only genuine adherents to Islam create waqfs, rather than those converting to evade legal obligations, cannot be considered 'arbitrary'. "We are, therefore, prima facie of the view that such a provision, which requires a person practicing Islam for five years for creating a waqf cannot be 'arbitrary'."
Waqf Creation Limited to Property Owners
The Court clarified that waqfs cannot be established by third parties who neither own the property nor provide the finances, nor can government-owned properties become waqfs. The Court preliminarily determined that "such a requirement cannot be held to be arbitrary."
No Stay for Monuments and Tribal Lands
The Court declined to stay provisions that remove waqf status from Archaeological Survey of India (ASI)-protected historical monuments and prevent tribal lands from being declared as waqfs. The Court also upheld the deletion of a section from the previous law that had allowed non-Muslims to create waqfs.