In Re: The Waqf Amendment Act, 2025 - Interim Relief

What is the primary subject of the "In Re: The Waqf Amendment Act, 2025" document?

The document details a Supreme Court of India case concerning multiple writ petitions challenging the constitutional validity of several sections of the Waqf (Amendment) Act, 2025. Petitioners argue that the amendments violate various articles of the Constitution, including Articles 14, 15, 19, 21, 25, 26, 29, 30, and 300A, primarily by infringing on the rights of the Muslim community regarding the management and creation of Waqf properties.

What are the main contentions raised by the petitioners against the Waqf (Amendment) Act, 2025?

The petitioners raise several key contentions:

• De-recognition of 'Waqf by user': The Act prospectively de-recognizes Waqf by user, requiring existing ones to be registered before the Act's commencement.
• Discriminatory requirement for Waqf creation: A new requirement mandates that a person must "show or demonstrate" practicing Islam for at least five years to declare property as Waqf, which petitioners argue is discriminatory and arbitrary.
• Government Property Provisions (Section 3C): The Act states that government property cannot be deemed Waqf property and allows a designated officer to determine if a property is government property, with the status automatically changing in revenue records, which petitioners claim is arbitrary and unconstitutional.
• Composition of Waqf Council and Boards: Amendments to Sections 9 and 14 allow for a potential majority of non-Muslim members in the Central Waqf Council and State Waqf Boards, which petitioners argue interferes with the Muslim community's right to manage their religious affairs.
• Protected Monuments (Section 3D): Declarations of Waqf property become void if the property was a protected monument, infringing on religious practices.
• Scheduled Tribe Lands (Section 3E): Lands belonging to Scheduled Tribes cannot be declared Waqf property, which is seen as an attack on religious freedom for Muslim Scheduled Tribes.
• Mandatory Registration and Remedy Bar (Section 36): The Act makes Waqf registration mandatory, requiring a Waqf deed, and bars legal proceedings for unregistered Waqfs, creating a "Catch 22" situation.
• Deletion of provisions for non-Muslim donors (Section 104): The removal of the provision allowing non-Muslims to donate property for Waqf support is challenged.
• Applicability of Limitation Act (Section 107): Making the Limitation Act, 1963, applicable to Waqf property claims is seen as discriminatory.
• Deletion of evacuee property provisions (Section 108) and overriding effect (Section 108A): The petitioners also challenge the removal of these sections.

What is the historical context of Waqf legislation in India, as discussed in the judgment?

The legislative history of Waqf enactments in India dates back to the Mussalman Wakf Act, 1923, which aimed to curb mismanagement and misappropriation of Waqf properties by introducing compulsory registration. The concept of "Waqf by User" was statutorily recognized in the Bengal Wakf Act, 1934, and later in the Wakf Act, 1954. Despite mandatory registration provisions in earlier acts, widespread non-registration and misuse continued. The Wakf Enquiry Committee in 1976 recommended barring suits for unregistered Waqfs, which led to the proposed (but not enacted) Section 55E in the 1984 Amendment. The Waqf Act, 1995 (Original Waqf Act), again provided for mandatory registration and a detailed procedure, and initially included a bar on enforcing rights for unregistered Waqfs (Section 87), which was later deleted in 2013. This historical overview highlights a consistent legislative effort to regulate Waqf administration and address issues of misuse and non-registration.

How does the impugned Act address "Waqf by User" and what is the Court's preliminary view on this change?

The impugned Act deletes the provision concerning "Waqf by User," which was previously recognized in Muslim law and past Waqf acts. The learned Solicitor General argued that this amendment is prospective and aims to curb the encroachment of government and private properties under the pretext of "Waqf by User," citing instances of misuse where large tracts of government land were claimed as Waqf property. The Court, in its preliminary view, found that this deletion, being prospective, cannot be deemed arbitrary, especially given the history of misuse and the legislature's intent to address such issues. It noted that if Mutawallis had failed to register "Waqf by User" properties for decades under existing laws, they cannot now claim the provision requiring registration or the deletion of "Waqf by User" as arbitrary.

What is the Court's prima facie stance on the inclusion of non-Muslim members in the Central Waqf Council and State Waqf Boards?

The petitioners argued that amendments allowing non-Muslims to potentially form a majority in the Central Waqf Council (12 out of 22 members) and State Waqf Boards (7 out of 11 members) constitute direct interference in Muslim religious affairs. The Solicitor General contended that the Council and Board functions are largely secular, focusing on "due administration" and not religious activities, and that the number of non-Muslims would be limited (not exceeding 4 in the Council and 3 in the Board). While the Court did not fully delve into the constitutional implications at this interim stage, it expressed a prima facie concern over the potential for a non-Muslim majority. To balance equities, the Court issued an interim direction that the Central Waqf Council should not have more than 4 non-Muslim members and the State Waqf Boards not more than 3 non-Muslim members.

How does the Act modify the handling of government properties declared as Waqf, and what is the Supreme Court's interim ruling on this?

Section 3C of the Amended Waqf Act states that any government property identified or declared as Waqf property, before or after the Act's commencement, will not be deemed Waqf property. It allows a designated officer (above the rank of Collector) to conduct an inquiry to determine if a property is government property. The petitioners argued that this provision is arbitrary and unconstitutional as it automatically changes property status without proper judicial determination. The Supreme Court, while prima facie upholding the main provisions of Section 3C(1) and 3C(2) (recognizing the state's obligation to protect public property), found the proviso to sub-section (2) (stating the property shall not be treated as Waqf property until the report is submitted) and sub-sections (3) and (4) (allowing revenue officers to make corrections in revenue records and direct the Board to do so based on the report) to be prima facie arbitrary. The Court noted that determining property title should be the role of a judicial or quasi-judicial authority (like the Waqf Tribunal). Therefore, these specific parts of Section 3C were stayed, with a further direction that no third-party rights be created on such properties during the pendency of proceedings until final adjudication by the Tribunal.

What is the Court's view on the requirement for a person to practice Islam for five years to create a Waqf, and the mandatory registration provisions?

Regarding the requirement for a person to "show or demonstrate" practicing Islam for at least five years to create a Waqf, the Court found this provision prima facie non-arbitrary. It recognized the legislative intent to prevent misuse of Waqf endowments as a "clever device" to evade creditors or law, citing instances of individuals converting to Islam solely for such benefits. However, the Court stayed this provision, noting that no mechanism or procedure has yet been provided for ascertaining this five-year practice. This part of the Act cannot be given effect until rules are framed by the Central Government.

On mandatory registration (Section 36), the Court noted that the requirement has been consistently present in Waqf legislation since 1923. It dismissed the petitioners' argument that the new mandatory registration with a Waqf deed is arbitrary, especially considering the long history of non-registration and misuse. The Court also upheld sub-section (10) of Section 36, which bars legal proceedings for unregistered Waqfs after six months from the Act's commencement, finding that it brings parity with other trusts and provides ample time for registration.

What measures did the Supreme Court put in place to balance the interests of all parties during the pendency of the case?

While rejecting a complete stay on the Waqf (Amendment) Act, 2025, the Supreme Court issued several interim directions to protect the interests of all parties:

• Stay on 5-year Islam practice requirement: The clause requiring a person to show or demonstrate practicing Islam for at least five years to create a Waqf is stayed until the Central Government frames rules for its determination.
• Stay on automatic reclassification of government property: The proviso in Section 3C(2) that properties shall not be treated as Waqf property until an officer's report, and the provisions in Section 3C(3) and (4) that allow revenue officers to make corrections in revenue records, are stayed.
• Protection against dispossession: It is directed that Waqf properties will not be dispossessed, and revenue/Board records will not be affected, until the title dispute is finally decided by the Waqf Tribunal under Section 83, subject to High Court orders. However, no third-party rights can be created on such properties once an inquiry under Section 3C is initiated until final determination.
• Cap on non-Muslim members: The Central Waqf Council will not have more than 4 non-Muslim members out of 22, and State Waqf Boards will not have more than 3 non-Muslim members out of 11.
• Appointment of CEO: While Section 23 is not stayed, an effort should be made to appoint a Chief Executive Officer of the Board from the Muslim community, "as far as possible." The Court also clarified that these are prima facie observations for interim relief and do not prejudice final arguments on the Act's validity.