Presumption of Constitutionality Cannot Be Discarded Lightly: Supreme Court Refuses Blanket Stay on Amended Waqf Act, 2025

“Judicial review does not extend to questioning legislative policy unless it is palpably arbitrary or violates the Constitution” – Today, On 15th September 2025, the Supreme Court of India, led by Chief Justice B.R. Gavai and Justice Augustine George Masih, delivered an interim order refusing to stay the entire Waqf (Amendment) Act, 2025. The Court held that there was no prima facie case to strike down the law in toto and reiterated the constitutional principle that legislation enjoys a strong presumption of validity unless it is found to violate fundamental rights in a manifest manner.

The Court was hearing a series of writ petitions challenging various provisions of the amended Act on grounds of violations of Articles 14, 25, and 26 of the Constitution. Petitioners had alleged that several changes, including restrictions on who may create a waqf and removal of the concept of waqf by user, were arbitrary, discriminatory, and unconstitutional. The Centre defended the amendments as necessary to prevent widespread misuse and encroachment of public lands under the garb of waqf.

“The Possibility of Misuse by Recent Converts Cannot Be Ruled Out”: Court Justifies 5-Year Islam Practice Requirement

One of the most hotly contested provisions was the amended Section 3(r), which now requires that a person must have practiced Islam for at least five years before they can validly create a waqf. The petitioners argued that this clause was discriminatory and infringed upon religious freedom.

Rejecting this contention, the Supreme Court observed that the legislature was competent to address real-world misuses through targeted provisions:

“It is not unreasonable to assume that persons may convert to Islam to misuse the waqf framework… legislative safeguards to prevent abuse of religious endowments cannot be per se arbitrary.”

However, the Court noted that since no rules or procedures had yet been notified under Section 109 for establishing whether a person has practiced Islam for five years, the clause cannot be operationalized as it stands. Hence, the Court directed that this portion of Section 3(r) shall remain stayed until the necessary rules are framed.

“Waqf by User Cannot Override the Need for Deeds and Registration”: Court Upholds Deletion of Customary Waqf Recognition

The amendment omitted the recognition of waqf by user, which previously allowed properties to be declared as waqf based solely on long-standing public usage for religious purposes. Petitioners argued that this change dismantled the Islamic legal principle of waqf being created through continued use.

The Court firmly disagreed, stating: “Even as far back as 1923, misuse of the ‘waqf by user’ principle to defeat creditors or appropriate public land was noted… the deletion is a rational legislative step to require formal documentation and prevent abuse.”

It noted that mutawallis had 30 years to register waqfs after the 1995 Act and could not now claim unfairness in documentation requirements. The Court thus upheld the deletion of this doctrine, recognizing the need for certainty in land records and protection of government lands.

“Revenue Officers Cannot Decide Title in Dispute Between Waqf and Government”: Court Stays Sub-Sections of Section 3C

Section 3C of the amendment introduced provisions to inquire into whether a waqf property is government land, giving power to a designated officer not below the rank of Collector.

While the Court agreed in principle with the inquiry mechanism, it found certain sub-sections to be prima facie arbitrary. In particular, the proviso to Section 3C(2), and sub-sections (3) and (4), which presumed government ownership prior to adjudication, were held to be violative of due process.

“To treat a waqf property as Government land without adjudication of title is arbitrary… adjudication must precede conclusion.”

The Court stayed these provisions, and clarified that until the Waqf Tribunal decides the matter under Section 83, the waqf board cannot create third-party rights or take possession.

“Non-Muslim Members Cannot Dominate a Religious Board”: Court Limits Their Representation in Waqf Councils

Petitioners raised serious concerns about the composition of the Central Waqf Council (Section 9) and State Waqf Boards (Section 14), arguing that a majority of non-Muslim members would violate the religious autonomy guaranteed under Articles 25 and 26.

While the Court stopped short of striking down the provision, it issued a binding directive based on the Solicitor General’s assurance:

“The Central Waqf Council shall not have more than four non-Muslim members out of twenty-two; the State Board shall not have more than three out of eleven.”

This move, while upholding the statute, ensures that Muslim representation remains majority in bodies managing waqf affairs, thus preserving the community’s right to administer its religious endowments.

“CEO Should Ordinarily Be from the Muslim Community”: Court Suggests but Doesn’t Mandate Religious Identity for Office

The appointment of the Chief Executive Officer (CEO) of the Central Waqf Council — who also acts as the Joint Secretary in the Ministry — was also challenged, especially the possibility of a non-Muslim holding the post.

The Court held that there is no constitutional bar on such an appointment, but added a strong advisory note:

“Ordinarily, such a person should be from the Muslim community… but the provision is not unconstitutional in its present form.”

Thus, while not staying the clause, the Court recognized the sensitivities involved in religious institutions being administered by individuals familiar with the tenets and customs of the faith.

“Unregistered Waqfs Cannot Enjoy Legal Protections Indefinitely”: Court Upholds Section 36(10)

The new Section 36(10) bars any suit or legal proceeding on behalf of unregistered waqfs beyond six months from the commencement of the amendment.

The petitioners termed this draconian and discriminatory. The Court disagreed and noted:

“Rather than being arbitrary, it brings parity with other religious and charitable trusts… a reasonable time limit promotes registration, transparency, and legal certainty.”

It also drew parallels with Section 87 of the 1995 Act, which had similar language, and held that the State has a legitimate interest in regulating waqfs through proper registration.

“Scheduled Tribe Lands Must Be Protected from All Forms of Alienation”: Court Upholds Section 3E

Section 3E prohibits any declaration of Scheduled Tribe lands — covered under Fifth and Sixth Schedules — as waqf.

The Court termed this provision a constitutional necessity, stating:

“This clause protects the most vulnerable segment of society. The restriction is not religion-specific but ensures tribal land cannot be transferred through religious or secular means.”

It also noted that this provision aligns with Articles 244 and 275, which provide special safeguards for tribal areas.

“No Waqf Over ASI-Protected Monuments”: Court Upholds Bar Under Section 3D

The Court endorsed the legislative bar on waqf declarations over monuments protected by the Archaeological Survey of India (ASI). Petitioners alleged this interfered with long-standing religious practices.

The Court held that customary practices are already protected under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and added:

“The ASI has a constitutional duty to preserve national heritage… administration by mutawallis may interfere with conservation efforts.”

“Application of Limitation Act to Waqf Property Disputes Is a Move Towards Uniformity”: Court Finds No Discrimination in Section 107

The petitioners objected to the application of the Limitation Act, 1963 to waqf disputes, arguing it would bar suits seeking reclamation of waqf property lost due to illegal transfers.

The Court reasoned: “Application of limitation periods fosters legal certainty. It removes special treatment that resulted in indefinite claims, bringing waqfs at par with other trusts.”

Hence, Section 107 was held to be constitutionally valid and not violative of equal protection under Article 14.

“Deletion of Provisions Allowing Non-Muslims to Create Waqfs Is Not Arbitrary”: Court Recognizes Waqf as Inherently Islamic

The deletion of Section 104 (allowing non-Muslims to create waqfs) and Section 108A (granting the Act overriding effect) was also challenged. The Court dismissed the challenge, noting:

“Even the petitioners argue that waqf is exclusive to Islamic law… the deletion of provisions permitting non-Muslim creation of waqfs is not arbitrary, but rather, doctrinally consistent.”

Supreme Court Issues Limited Interim Relief While Refusing Blanket Stay on Waqf Act

Concluding its detailed interim order, the Supreme Court clarified that the entire statute cannot be stayed based on generalized or ideological objections. Only those provisions which prima facie fail the test of constitutional scrutiny were stayed temporarily, pending further hearings.

The Court reiterated: “There is always a presumption in favour of the constitutionality of an enactment… courts cannot lightly invalidate a law unless there is flagrant violation of constitutional provisions.”

It listed certain directives and clarifications regarding third-party rights, tribunal adjudications, and representation, while leaving final adjudication open for a detailed constitutional hearing at a later stage.

Date of Decision: 15th September 2025