In a hearing related to the Waqf (Amendment) Act, 2025, the Supreme Court of India recently passed an interim order denying to put a stay on the provision which provided for abolishing the concept of “Waqf by user”, while partly putting a stay on certain other provisions which were found to be arbitrary in nature.
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In a hearing related to the Waqf (Amendment) Act, 2025, the Supreme Court of India recently passed an interim order addressing challenges to the constitutional validity of the Act. The Apex Court denied to put a stay on the provision which provided for abolishing the concept of “Waqf by user”, while partly putting a stay on certain other provisions which were found to be arbitrary in nature. The decision of the Apex Court has led to significant implications on the property law, minority rights, and the principle of separation of powers.
Background of the Case
Several petitioners, including those filed by Congress MP Mohammad Jawed, AIMIM leader Asaduddin Owaisi, Maulana Arshad Madani, All India Muslim Personal Law Board (AIMPLB), and various other organisations, were filed in the Court challenging the amendments. It was argued in the petitions that the changes introduced targeted Muslim religious practices and violating their constitutional protections.
On the other hand, six BJP-ruled states—Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh, and Assam—supported the amendments, citing the need to curb fraudulent land encroachments.
Abolition of “Waqf by User”
The key provision which was challenged was the removal of “Waqf by user”, where properties were allowed to be declared as waqf on the basis of their long-standing community use. It was explained by the petitioners that they feared that change in the provision would help the government to seize such properties.
However, it was observed by the Court that a serious misuse has been caused, especially in the state of Andhra Pradesh, where large tracts of government land were wrongly recognised as the waqf property. The Court held that abolition of the doctrine prospectively was not arbitrary, thereby rejecting the claim that it would lead to a large-scale government takeover.
Provisions Stayed by the Court
- The new amendment requires that an individual has to be a practising Muslim for a period of at least five years before creating a waqf. This provision was put on stay by the as there is an absence of a clear mechanism determining compliance to the provision. It was put forward that such provision could lead to arbitrary government action without proper having safeguards in place.
- Another controversial provision includes the empowerment of the revenue officers who are above the rank of Collector with power to decide if a disputed property was government land or waqf property. The arrangement was found to be prima facie arbitrary and violative of the principle of separation of powers by the Court, thereby putting a stay on the provision for now.
- The Court further notified that no waqf shall be dispossessed of its property, nor any third-party rights shall be created, until any such related disputes have been conclusively decided by the Tribunal including subsequent appeals. This guideline by the Court would ensure that any continued litigation will not lead to immediate disruption of related waqf properties.
Non-Muslim Representation and Appointments in the Waqf
Over the topic of the inclusion of non-Muslim members in Waqf Boards as well as as the Central Waqf Council, the Court has declined to intervene. It observed that the Central Council may have up to four non-Muslim members out of 22, and State Boards may have up to three non-Muslim members out of 11.
Though, the Court specified that the Chief Executive Officer of the Waqf Board must be appointed from the Muslim community as far as possible.
The final verdict of the Court shall determine the validity of the waqf regulation in India, however the present order does underscore the role of the Court in protecting both religious freedoms and public interest.
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Adv Vipul Singh Raghuwanshi
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