The Hindu: Published on 18 September 2025.
Why in News?
Because the Supreme Court on 15 September 2025 refused to put the whole Waqf (Amendment) Act, 2025, in suspended animation but imposed interim stays on several highly contentious provisions — notably (a) empowering District Collectors to determine whether a property is government land/waqf, (b) the operational mechanism for the “practising-Islam for five years” requirement to create a waqf, and (c) limits on non-Muslim membership of Waqf bodies. The order both preserves much of the Act and protects certain rights pending full hearing, so it has immediate administrative and political consequences.
Short background (what is the Waqf Act and the 2025 amendment):
Waqf: under Islamic law, a waqf is a charitable/religious endowment — land or property dedicated in perpetuity for specified religious or philanthropic uses.
1995 Act → 2025 Amendment: Parliament in 2025 amended the 1995 Waqf Act with a package of reforms the Centre described as increasing transparency (central digital registration, tighter ownership rules, oversight). Critics say the amendments increase executive control and put core minority governance rights at risk. Several MPs, parties and community groups moved the Supreme Court challenging parts of the law.
What were the main grounds of the challenge?
Petitioners argued the amendments:
Violate Article 26 (right of every religious denomination to manage its own affairs) and Article 30 (minority rights to manage institutions);
Unconstitutionally delegate adjudicatory/ title-determination powers to the executive (District Collectors) rather than courts/tribunals;
Introduce arbitrary religion-policing by requiring a person to “show” they have practised Islam for five years before creating a waqf; and Remove or alter protections (e.g., the doctrine of “waqf by user”) that historically protected community endowments.
What did the Supreme Court do — stayed vs. allowed to operate? (Interim snapshot):
Stayed / Put on hold (interim):
Section authorising District Collectors to inquire into whether property claimed as waqf is government land (often referenced as Section 3C or similar) — stayed because title disputes ought to be decided by judicial/quasi-judicial fora, not unreviewable executive action.
The automatic divestment clause (that a property would lose waqf status once such an inquiry started) — called prima facie arbitrary and stayed.
The operational application of the “practising Islam for five years” test — the Court did not strike down the idea outright but suspended its operation until formal rules/procedures are framed to verify the requirement. The Court noted there is presently no procedure to determine “practising” status.
Caps on non-Muslim membership: to limit the executive’s power to include non-Muslims freely, the Court imposed interim caps — e.g., Central Waqf Council (22 members) no more than 4 non-Muslims; State Waqf Boards (11 members) no more than 3 non-Muslims. The Court also suggested that the CEO post be preferably held by a member of the community.
Upheld / Allowed to continue (for now):
The Court declined to stay the Act in its entirety — i.e., the statute retains its presumption of constitutionality.
It did not suspend the removal (prospectively) of the doctrine of “waqf by user” for future claims — the Bench accepted the government’s contention that the doctrine had been abused to claim large tracts of government land.
The requirement for central digital registration of waqf properties remains in force.
The Limitation Act (1963) will continue to apply — i.e., no blanket exemption for waqf claims from limitation periods.
The Court’s legal reasoning (high-level):
Separation of powers / Title adjudication: the Court emphasised that decisions affecting property title are best left to judicial or quasi-judicial bodies; executive fact-finding that can alter revenue records and divest waqf status bears serious constitutional consequences if exercised without proper safeguards. Hence the stay on Collector powers.
Presumption of constitutionality: the Court refused a blanket stay because petitioners had not established that the entire statute was prima facie unconstitutional — only certain provisions raised serious immediate concerns.
Practicability & Rule-making: the five-year “practising Islam” rule was not struck down on paper but suspended because there is no procedure yet to implement it; the Court directed that the requirement will operate only when rules providing a non-arbitrary verification mechanism are in place.
Immediate/practical effects of the interim order:
District Collectors cannot at once change revenue records or strip waqf status pending tribunal/High Court adjudication — this protects custodians (mutawallis) and prevents administrative dispossession in ongoing disputes.
No new waqf creations will be blocked nation-wide by an immediate five-year test until implementing rules exist (but future rule-making could revive the test).
Waqf boards and the Centre must follow caps on non-Muslim membership composition as an interim arrangement.
Registration push continues: central digital registration remains live, so the government’s transparency/recording reforms proceed.
Broader implications for minority rights and constitutional law:
a. Minority institutional autonomy (Article 26/30):
The order is a partial protection — by restricting executive title-taking and capping outsider membership on boards, the Court has recognised that certain changes could intrude into the community’s right to manage its religious affairs. But because the Court did not strike down or stay the entire scheme, substantial parts of the state’s regulatory design survive, meaning future rule-making and adjudication could still reshape how waqf institutions are governed. This produces an uncertain horizon for minority institutional autonomy.
b. State oversight vs. community control:
The ruling balances state interest in preventing mismanagement/encroachment (the government’s justification) against minority rights. By allowing anti-encroachment/registration measures to proceed but curtailing executive title-making, the Court signals that legislative reforms to improve accountability are permissible, but procedures cannot bypass judicial review or allow the state unfettered control.
c. Religion-policing concerns:
The five-year practising-Islam test raises difficult constitutional questions: if implemented, it would require the state (or delegated authority) to probe religiosity/history of belief — an area courts treat with extreme caution. The Court’s suspension (pending rules) acknowledges those concerns while not precluding a carefully designed mechanism — leaving open the possibility that a less arbitrary, evidence-based rule could survive later challenge. Critics fear that any such mechanism risks wrongful state intrusion into conscience and conversion rights.
Political and social fallout (short note):
The order produced mixed political reactions: the Centre and some ruling politicians hailed the Court for not staying Parliament’s law; opposition leaders and Muslim organisations said the interim order did not go far enough in safeguarding waqf autonomy. Several community bodies (eg. AIMPLB) have called the order “incomplete” and remain concerned about the parts of the Act allowed to operate. Expect political debate and mobilisation around rule-making and implementation.
Likely next steps (what to watch for):
Framing of rules: if the Centre chooses to implement the five-year requirement, it must draft rules setting out objective verification procedures — those rules will themselves be vulnerable to challenge. The Court specifically delayed operation until such rules exist.
Merits hearing on the petitions: a fuller hearing will address constitutionality on the merits — the final judgment may strike down, modify, or uphold more provisions.
Waqf tribunals / High Courts: disputes already in the pipeline will continue to be heard by tribunals and higher courts; the interim order ensures no immediate executive dispossessions.
Legislative/administrative responses: political actors may seek amendments, different rule framing, or policy clarifications depending on the Court’s final decision and political pressure.
Conclusion:
The Supreme Court’s Sept 15, 2025 interim order is a cautious, calibration-type response: it recognises the legislature’s competence to reform waqf governance but draws lines where reforms risk immediate, irreversible harms — especially when executive power can change property records or when state action would intrude on religious choice without a clear procedure. For minority rights, the order is protective but not definitive: it prevents certain executive actions now, but many of the amendments remain effective and may be tested again. The ultimate shape of waqf governance will depend on the rules the Centre frames (if any) and the Court’s final ruling on the constitutional challenges.
