Editorial: Waqf Act — Measured judicial intervention by Supreme Court

India’s top court has struck a fine balance by putting on hold contentious provisions of the Waqf Act while declining to stay the Act in its entirety

The Supreme Court has struck a fine balance by putting on hold certain contentious provisions of the Waqf (Amendment) Act 2025 while, at the same time, declining to stay the Act in its entirety. This measured intervention is welcome in view of the strong objections raised by opposition parties and Muslim organisations over certain clauses in the amended Act that could lead to infringement upon the rights of the minority community and abuse of power by the government. A bench of Chief Justice BR Gavai and Justice Augustine George Masih stayed the operation of two key provisions while upholding the requirement of the registration of Waqfs and the presence of non-Muslims on the Central Waqf Council and the State Waqf Boards. First, the requirement that an individual must have practised Islam for at least five years before being eligible to create a waqf. The bench noted that the absence of any rule-making framework to verify such a condition leaves the provision open to arbitrary state action. It suspended the operation of this clause until the central government frames appropriate rules. Second, permitting a collector to determine whether a property under dispute was a Waqf or not. The court said this provision was against the doctrine of separation of powers enshrined in the Constitution, with the Executive taking upon itself a self-adjudicatory role which is otherwise reserved for a judicial or quasi-judicial authority. The apex court rightly ruled that title disputes must be determined by judicial tribunals, not Executive officers.

The bench clarified that disputes about ownership of properties claimed as Waqf will be adjudicated by tribunals under Section 83. Until such proceedings, including appeals before High Courts, reach finality, neither Waqf institutions will be dispossessed of land nor will any third-party rights be created. The new law has opened the door for non-Muslim members, but the top court has now capped their numbers at 4 out of 22 in the central council, and 3 out of 11 on State boards. This should allay the fears of a possible takeover of these boards by non-Muslims. By refusing to stay the entire Act, the apex court has acknowledged Parliament’s supremacy in legislative matters. The bench has made it clear that laws should be presumed to be constitutionally sound, and intervention must occur only in the rarest of rare cases. Six BJP-ruled States — Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh, and Assam — have filed intervention applications supporting the amendment. They claim it is essential to curb fraudulent encroachments on public and private lands wrongly claimed as Waqf. Nearly five out of every eight such properties are disputed and encroached, or their legal status is unclear. Defending the amended law, the Centre argued that the 2013 Waqf Act amendments led to a manifold increase in recorded Waqf area, and the 2025 amendment merely regulates Waqf dedications through transparent mechanisms.

---