SC On Amended Waqf Act: What Has Been Stayed, What Remains

Recently, the Supreme Court passed an interim order staying the operation of several provisions of the new Waqf (Amendment) Act, 2025, passed by Parliament in April.

About Waqf

• Definition of Waqf: Waqf is the permanent dedication of property (such as land) to Allah, intended for the benefit and welfare of people (e.g., establishing a school or hospital).
• Permanence of Waqf Property: Once a property is designated as Waqf, it is permanent; it cannot be retrieved or sold.
• Legal Context: This is an important concept in Islamic Law.
• Management Structure: Waqf properties are managed by State Waqf Boards, which are overseen at the national level by a Central Waqf Council.
• Reasons for the 2025 Amendment: The government introduced the Waqf (Amendment) Act 2025 to address issues with the previous Waqf Act 1995. 
  • The government cited problems such as the misuse of Waqf properties, encroachment on government lands under the guise of Waqf property, and a lack of transparency in the management of Waqf properties.
• Petitioners’ Challenge: Organisations and individuals challenged the new law in the Supreme Court, arguing that it violates Article 26 of the Constitution. 
  • Article 26 grants every religious community the fundamental right to manage its own affairs concerning religion.

Provisions Stayed by the Supreme Court

• Powers of the District Collector (DM) (Section 3C): The new Act granted DMs extensive powers. Specifically, Section 3C allowed the DM to start an inquiry if they suspected a property was not genuine Waqf property.
  • Termination of Waqf Status: The original provision stated that the Waqf status of the property would be immediately terminated once the DM started the inquiry. 
    • The Supreme Court stayed this provision, arguing that the Waqf status must remain intact while the inquiry is ongoing.
  • Changing Land Records: The new Act allowed DMs to unilaterally change land records if their inquiry concluded the property was government land. 
    • The Court stayed this provision, citing a violation of Separation of Powers; deciding the title of a property is the function of the judiciary, not the executive (DM).
  • Balance during Inquiry: The Court established a balance: the community using the property (e.g., a school or graveyard) cannot be evicted while the inquiry is pending. 
    • However, No Third Party Rights can be created; the property cannot be sold or transferred during this period.
• Non-Muslim Representation: Petitioners expressed concern that the new law interfered with religious affairs (Article 26) by allowing non-Muslims entry into Waqf management bodies.
  • The Supreme Court resolved this ambiguity by setting a limit to protect the community rights of Muslims:
    • The Central Waqf Council (total 22 members) can have a maximum of four non-Muslims.
    • The State Waqf Board (total 11 members) can have a maximum of three non-Muslims.
• Five-Year Islam Practice Rule: The new law stipulated that only an individual who has practiced Islam continuously for five years could create a Waqf.
  • The Supreme Court put a stay on this provision, questioning the mechanism and rules the government would use to determine or certify how long a person has been practicing Islam.

Controversial Provisions Not Stayed

• Removal of ‘Waqf by Use’ Concept: The principle of Waqf by User or Immemorial User previously meant that if land was used by the Muslim community for religious or charitable purposes (like holding namaz or having a mazar) for a very long time, it was considered Waqf even without formal registration.
• Government Action: The government removed this concept, claiming it led to significant misuse and encroachment.
• Judicial Stand: The Supreme Court refused to stay this removal.
• Applicability of the Limitation Act: The previous 1995 Act granted Waqf Boards special exemption from the Limitation Act 1963, meaning the Boards were not subject to time limits for filing legal cases to reclaim occupied property.
  • The new 2025 Act removed this special exemption, obligating Waqf Boards to file claims within the prescribed time limit, just like everyone else.
  • The Court refused to stay this, stating that the new law ends discrimination and ensures equality.

Conclusion

• The Supreme Court adopted a balanced approach, demonstrating both Judicial Restraint (by not staying the entire Act) and Judicial Activism (by addressing specific flawed provisions) to protect Constitutional values.

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