No Adjudication, No Presumption: Supreme Court Stays Key Clauses of Amended Waqf Act That Declare Government Land as Waqf Without Inquiry

“To treat a waqf property as Government land without adjudication is prima facie arbitrary… Title must be decided by a judicial or quasi-judicial authority” - Supreme Court Grants Partial Stay on Amended Waqf Act, 2025 — Halts Operation of Clauses that Pre-Emptively Treat Government Land as Waqf and Restrict Creation of Waqf by Recent Converts.

In a significant interim relief order dated 15th September 2025, the Supreme Court of India stayed the operation of certain contentious provisions of the Waqf (Amendment) Act, 2025, while refusing to halt the law in its entirety. The Court, through a bench of Chief Justice B.R. Gavai and Justice Augustine George Masih, granted selective stays only where the statutory clauses appeared to violate constitutional guarantees of equality, religious freedom, and property rights, or where procedural safeguards were absent.

The stay pertains primarily to three core areas:

1. The presumption of government ownership over waqf properties without adjudication,

2. The bar on new waqfs by persons recently converted to Islam, and

3. The creation of third-party rights over disputed waqf lands during pending adjudication.

“Legislature Cannot Declare Property Title Without Due Process”: Supreme Court Stays Sub-sections (3) and (4) of Section 3C

The most prominent stay was granted on Section 3C, which relates to government land disputes involving waqf claims. Under the amended law, if a waqf property is suspected to be government land, a designated officer not below the rank of Collector is empowered to conduct an inquiry and conclude ownership.

However, the Court found the proviso to sub-section (2) and sub-sections (3) and (4) of Section 3C to be constitutionally infirm, as they allowed a pre-emptive presumption of title in favour of the government without any judicial or quasi-judicial adjudication.

The Court declared: “Prima facie, these clauses are arbitrary. They permit the State to treat a waqf property as Government land based solely on an executive officer’s conclusion, without recourse to the Waqf Tribunal or any impartial adjudicatory forum.”

Holding that title to immovable property cannot be decided unilaterally by revenue authorities, the Court stayed these provisions, directing that no dispossession or mutation shall occur based on them. Only after a proper decision by the Waqf Tribunal under Section 83 can rights be finalized.

“No Third Party Rights During Pendency”: Court Restrains Waqf Boards from Alienating Property Pending Title Dispute

While granting the stay on unilateral declarations of title, the Court also issued a binding directive that waqf boards shall not create any third-party interests or alienate property that is under title dispute until final adjudication is completed.

It held:

“While the possession and entry in revenue records shall remain status quo until adjudication, the Waqf Boards shall not alienate, transfer, or lease out such properties during the pendency of dispute resolution.”

This ensures that public lands or disputed properties are not encumbered or transferred in a manner that could frustrate the outcome of tribunal decisions, protecting the integrity of judicial proceedings.

“Five-Year Religious Practice Clause Cannot Operate Without Rules”: Court Stays Operation of Clause Requiring Minimum Practice of Islam to Create Waqf

The newly introduced proviso in Section 3(r) mandates that only a person who has practiced Islam for at least five years may create a waqf. While the government justified this as a measure to curb misuse by persons converting to Islam for financial motives, the Court held that in the absence of procedural rules, the provision cannot operate.

It stated: “No mechanism presently exists under the Act or Rules to determine or verify whether a person has practiced Islam for five years… In such a scenario, the provision cannot be applied or enforced.”

The Court thus granted a temporary stay on this clause, clarifying that it may be revived in future only after the Central Government notifies rules under Section 109 to establish the procedure and standards of proof.

“Stay Is Limited and Targeted”: Supreme Court Reaffirms Presumption of Constitutionality for the Rest of the Act

The Supreme Court, while granting these limited stays, firmly declined to entertain broader challenges that sought to suspend the entire operation of the amended law.

Reiterating the doctrine of constitutional restraint, the Court stated:

“There exists a strong presumption in favour of constitutionality… A legislative enactment cannot be stayed in its entirety unless there is a clear and flagrant violation of constitutional principles.”

Accordingly, the Court allowed the remaining provisions of the Act — including those dealing with registration, tribunal jurisdiction, limitation, and deletion of ‘waqf by user’ — to remain in force.

Final Position of the Supreme Court on Stayed Clauses:

1. Section 3C(2) Proviso, 3C(3) and 3C(4) — Stayed, as they allow executive presumption of title in favour of government without judicial adjudication.

2. Proviso to Section 3(r) — Stayed, pending formulation and notification of rules regarding verification of religious practice.

3. Alienation or creation of third-party rights in properties under dispute — Prohibited, pending decision by Waqf Tribunal under Section 83.

The rest of the Waqf (Amendment) Act, 2025, remains operative and enforceable, subject to further adjudication.

Supreme Court Protects Due Process, Preserves Legislative Reform

The Supreme Court’s interim ruling sends a clear message: while it will not interfere lightly with legislative intent or policy decisions, it will not tolerate provisions that bypass judicial process or constitutional protections. By staying only those provisions that affect title, property rights, or religious freedom without procedural safeguards, the Court has demonstrated judicial restraint combined with constitutional vigilance.

The matter remains pending for final hearing, where the full validity of the amended Act will be tested in light of Articles 14, 25, 26, and 300A of the Constitution.

Date of Decision: 15th September, 2025