SC refuses to stay new Waqf law: 5-yr Islam practice clause on hold, not more than 3 non-Muslims on board

The Supreme Court on Monday stayed certain sections of the Waqf (Amendment) Act, 2025, offering temporary relief to petitioners challenging the law’s constitutionality.

The court paused provisions related to who can create a Waqf, who can decide disputes over encroachment, and issued interim guidelines for Waqf board composition.

Five-year practice rule on hold

Section 3(1)(r), which requires a person to have practiced Islam for five years to create a Waqf, has been put on hold.

The Court said the provision will remain suspended until state governments frame rules to verify this requirement.

Provisions on Waqf property verification stayed

The Supreme Court also stayed the proviso to Section 3C(2), which stated that a property would not be treated as a Waqf until a government officer reported on possible encroachment.

Section 3C(3), which required the officer to update revenue records and report to the state government if the property was found to be government-owned, has also been suspended.

District Collector’s powers restricted

The Court stayed Section 3C(4), which gave the District Collector authority to determine whether a property was government-owned and pass orders.

Chief Justice BR Gavai said, “Permitting the collector to determine the rights is against the separation of powers. An executive can’t be permitted to determine the rights of citizens.”

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Guidelines for Waqf board composition

The Court ruled that no more than three non-Muslims should be included in a Waqf board, and no more than four non-Muslims in the Central Waqf Council for now.

Ex-officio officers should, wherever possible, be from the Muslim community (Section 23).

The Court did not interfere with the Waqf registration requirement, noting, “We have held registration existed since 1995 to 2013, and again now. So we have held registration is not new.”

The hearing comes after three days of arguments, with the bench reserving its interim order on May 22. Key provisions of the Act, which triggered nationwide protests, were paused as the Court flagged them as potentially “arbitrary” exercises of power.

Separation of powers stressed

Highlighting the sweeping powers granted to the District Collector, the Court said, “The Collector cannot be permitted to adjudicate the rights of personal citizens, and this will violate the separation of powers. Till adjudication happens by the tribunal, no third-party rights can be created against any party. The provision dealing with such powers to the Collector shall remain stayed.”

Muslim bodies protesting the Act had said this provision could lead to illegitimate claims over Waqf properties.

Court’s caution on intervention

Chief Justice Gavai also reiterated that the five-year practice rule must be paused. “Without any mechanism, it will lead to exercise of arbitrary power,” he said. The Court emphasised that it generally assumes statutes are constitutional and intervenes only in the “rarest of rare cases.”

Background: Controversy over amendments

The amendments to the 1995 Waqf law, passed by Parliament and cleared by the President in April, had sparked protests. Muslim groups called them unconstitutional and accused the government of attempting to take over Waqf land. The government rejected these claims, saying the law aims to resolve disputes and tackle encroachments on Waqf properties.