In Re: Waqf — A First Look at the Stay Judgement

On 15 September 2025, a two-judge bench of the Supreme Court (Gavai CJ and Masih J) delivered an order in In Re: The Waqf Amendment Act, 2025, partially staying certain provisions of the Waqf (Amendment) Act, 2025. The Amendment, enacted earlier this year, makes significant structural changes to the 1995 Waqf Act.

Petitions challenging its validity were filed even prior to Presidential assent, raising claims of violations of equality and minority rights. Yesterday’s order marks the Court’s first substantive engagement with these challenges.

One of the key changes introduced by the 2025 Amendment is the requirement that any person creating a waqf must demonstrate practice of Islam for at least five years. The Court upheld this provision in principle, though it stayed its operation until the Central Government frames rules for assessing religious practice. The reasoning offered is worth noting.

The bench invoked the Statement of Objects and Reasons of the Mussalman Wakf Act, 1923, which had flagged the misuse of waqf as a device to shield property from creditors. On that basis, the Court suggested that recent converts might use waqf in a similar manner.

But this reasoning raises serious questions —

First, reliance on a century-old Statement of Objects and Reasons is curious, especially since subsequent legislation has already introduced safeguards against such misuse. 

Second, the assumption that individuals might convert solely to exploit waqf protections remains speculative; no data was cited to show this to be a real problem. 

The result is a provision whose justification rests more on historical suspicion than on present-day evidence.

Another provision bars the declaration of Scheduled Tribe land under the Fifth and Sixth Schedules as waqf property. Here, the Court upheld the Amendment, reasoning that the objective was to safeguard vulnerable tribal interests. Yet, this conclusion appears to take for granted a paternalistic view of Scheduled Tribes as incapable of making autonomous decisions regarding endowments.

For Scheduled Tribe Muslims, this translates into an absolute denial of the ability to dedicate property to waqf. The Court does not interrogate whether this blanket exclusion is proportionate, or whether narrower safeguards might have sufficed.

The Amendment. then, also abolishes the doctrine of waqf by user prospectively. This doctrine had historically recognized waqf character for properties without deeds but with longstanding customary use. The Court found this change unproblematic, framing it as a necessary response to encroachment of government land. The judgment cites instances of waqf boards attempting to notify government land as waqf property. However, the Court’s reasoning overlooks the fact that prior legislation already required registration of waqf property, but never treated non-registration as extinguishing waqf status. The 2025 Amendment effectively invalidates unregistered waqf by user overnight, despite decades of recognition. 

And perhaps the most contentious provision allows the government to notify waqf property as “government property” and take it over. Under the Amendment, disputes were to be resolved by a state-appointed officer. The Court partially intervened, directing that final determination of title must rest with the waqf Tribunal rather than an executive officer. This ensures at least some measure of judicial oversight. Still, the Court did not question the basic premise that property could be treated as government-owned by unilateral notification. Pending determination, mutawallis are barred from creating third-party rights over such property. While this avoids immediate alienation, it leaves open the broader issue of how far the state can go in asserting control over waqf assets.

The 2025 Amendment permits non-Muslims to serve on the Central Waqf Council and State Waqf Boards, and even as Chief Executive Officers of these bodies. It further allows the possibility of non-Muslim majorities. Petitioners argued this undermined the representative character of these institutions. The Solicitor-General denied that non-Muslim majorities would result, but the Court settled the issue by issuing a direction prohibiting such majorities, without striking down the provision.

This leaves unresolved the broader question i.e. to what extent should regulation of a community’s religious endowments be confined to members of that community? The Court avoided this debate, preferring a narrow reading that manages immediate concerns while deferring deeper questions of representation.

It is to these ends, that the interim order in In Re: The Waqf Amendment Act, 2025 reflects a cautious judicial approach. The Court has stayed certain aspects and read down others, but largely accepted the legislative framework. 

At multiple points, its reasoning rests on broad assumptions rather than concrete evidence, particularly in relation to restrictions on waqifs and the abolition of waqf by user. 

Future hearings hence will need to confront whether these provisions are consistent with constitutional guarantees of equality, minority rights, and property protections.