The Supreme Court’s interim order staying some of the contentious provisions of the Waqf (Amendment) Act, 2025, while refusing to put the Act in its entirety on hold appears to do justice to the law in that it allows some timely modifications and disallows those that would create more problems than it could possibly solve.
The court has offered relief to the petitioners in three important areas in which they sought its intervention. Among them, the stay on the provision allowing the district collector to derecognise a disputed waqf land is most welcome. The court has found that allowing a government officer to decide such a dispute is against the principle of separation of powers and also held that disputed waqf properties will not be affected till the question is decided by the tribunal or the court. The court has, in fact, taken off the immediate threat of government takeover of waqf properties under dispute now.
The court has also upended the government’s attempt to fill the waqf boards and councils with non-Muslims and ruled that there will be no more than four non-Muslim members in the 20-member Central Waqf Council and a maximum of three non-Muslims in the State Waqf Boards.
The law, in its original form, had envisaged a situation where non-Muslims could be in majority in a mechanism that is authorised to manage properties dedicated to an Islamic cause. It was an attempt to undermine Article 26 of the Constitution which allows every religious denomination to own and acquire movable and immovable property and to administer them. The court, in its final order, ought to explain why it would allow a non-Muslim to be the chief executive officer of the State Waqf Boards.
The court has stayed the condition that a person should be a practitioner of Islam for at least five years for dedicating a property as waqf, holding that it could lead to arbitrariness unless there is a proper mechanism to decide who is a practising Muslim. The court has flagged the fear that some smart people would convert to Islam and dedicate their property as waqf only to avoid legal confiscation. This is welcome, but the court, while making the final order, will have to explain as to how the dedication of property to a religious institution or cause can be limited to the practitioners of Islamic faith and not others.
The court has chosen not to intervene in the condition that all waqf properties must be registered, saying that the provision has been there since the 1923 Act; it has also allowed the scrapping of the provision for ‘waqf-by-user’ and the bar on creating waqfs over Scheduled Areas and protected monuments. The court has pointed out that there is no retrospective effect for these provisions.
The provision for ‘waqf by use’ may have been misused in certain cases but there are waqf properties which have remained so for centuries but without registration or documents. There has to be a mechanism to protect such bona fide claims. The court may probably suggest one in its final verdict.
Reforms are a continuous process in a democracy which help various arms of society move with the times. In that sense, the waqf amendment law was a laudable exercise but was coloured by the political agenda of the ruling party. The judiciary has stepped in to correct the imbalance, and it will hopefully come up with a more balanced and fair system when it pronounces its final verdict.