Calibrated Interim Scrutiny of the Waqf (Amendment) Act, 2025: Tribunal primacy in title disputes, capped non‑Muslim representation, and conditional suspension of the five‑year practice clause

Citation: 2025 INSC 1116 | Court: Supreme Court of India | Bench: B.R. Gavai, CJI; Augustine George Masih, J. | Date: 15 September 2025

Matters: Writ Petition (Civil) No. 276 of 2025 and connected petitions and one transfer petition

Introduction

A large batch of petitions challenged multiple provisions of the Waqf (Amendment) Act, 2025 (the “impugned Act”) which amends the Waqf Act, 1995 (retitled the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995). The challenges invoked Articles 14, 15, 19, 21, 25, 26, 29, 30 and 300A of the Constitution, contending the amendments were discriminatory, arbitrary, and infringed religious freedom and property rights.

While the Union initially suggested the interim focus should be narrow (on “Waqf by user”, government property, and Board compositions), the Court heard the parties at length on all interim issues. The petitioners, led by senior counsel including Kapil Sibal, Dr. Rajeev Dhavan, Dr. A.M. Singhvi, C.U. Singh and Huzefa Ahmadi, attacked key provisions: Section 3(r) (redefining “waqf”, deleting “waqf by user”, adding a five‑year practice of Islam requirement), new Sections 3C (government property), 3D (protected monuments), 3E (Scheduled Tribes land), changes in composition and selection for the Central Waqf Council and State Waqf Boards (Sections 9, 14, 23), mandatory deed and registration with a consequential bar on enforcement (Section 36(10)), deletion of Section 104 (non‑Muslim donations), application of the Limitation Act (Section 107), and omission of evacuee property and override clauses (Sections 108 and 108A).

The Union, through the Solicitor General, defended the amendments as constitutionally valid, grounded in long-standing legislative efforts to curb misuse, protect public/tribal lands, and rationalize secular administration of auqaf, emphasizing the strong presumption of constitutionality and the narrow scope for interim stays.

Summary of the Judgment

The Supreme Court declined to stay the impugned Act as a whole but issued targeted interim directions to balance equities pending final adjudication:

Section 3(r) (redefinition of “waqf”): The requirement that a waqf donor be “practising Islam for at least five years” is stayed until rules prescribe a mechanism to determine such practice (Rule‑making under Section 109). The ownership requirement and anti‑contrivance clause were not stayed.
Section 3C (government property):
- The proviso to Section 3C(2)—which treated any property under inquiry as non‑waqf until the designated officer’s report—is stayed.
- Sections 3C(3) and 3C(4)—authorizing the designated officer to directly correct revenue records and the State to direct Board corrections—are stayed.
- Interim protective regime: Upon initiation of a Section 3C inquiry, no dispossession, no change in revenue/Board records, and no creation of third‑party rights until final determination by the Waqf Tribunal (Section 83), subject to appeal to the High Court.
Sections 9 and 14 (composition of Central Waqf Council and State Waqf Boards):
- Pending final decision, the Court directs that the Central Waqf Council shall have no more than 4 non‑Muslim members out of 22, and a State Waqf Board no more than 3 non‑Muslim members out of 11.
Section 23 (Chief Executive Officer): Not stayed; however, the Court advises that, as far as possible, the CEO (ex officio Secretary) be appointed from the Muslim community.
Deletion of “waqf by user” (Section 3(r)(i) prior law): No stay; deletion operates prospectively.
Section 3D (protected monuments): No stay; declarations of waqf over protected monuments/areas are void, but customary religious observances remain protected under the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
Section 3E (Scheduled Tribes lands): No stay; bar on declaring ST lands as waqf sustained at the interim stage.
Section 36 (mandatory deed and registration; bar on enforcement in Section 36(10)): No stay; six‑month window and “sufficient cause” proviso noted.
Section 107 (Limitation Act applies): No stay; parity with other property claims; prospective application.
Section 104 deletion (non‑Muslim donations) and Section 108/108A omissions: No stay; deletions held consistent with amended definition and legislative competence (evacuee law repealed; override clause existed only since 2013).

The Court reiterates the stringent standard for interim stays on statutes: a strong presumption of constitutionality, narrow grounds (legislative competence, clear infringement of Part III or constitutional principles, manifest arbitrariness), and a duty to prefer constructions that preserve validity.

Analysis

Precedents Cited and Their Role

Charanjit Lal Chowdhury v. Union of India (1950); State of Bombay v. F.N. Balsara (1951); Ram Krishna Dalmia v. Tendolkar (1959); Mohd. Hanif Quareshi v. State Of Bihar (1958): Reaffirm presumption of constitutionality, the legislature’s domain to classify and address evils, and the narrow window for invalidation. The Court relies on these to set the interim threshold.
Hamdard Dawakhana (1959), Bengal Immunity (1955), Chamarbaugwalla (1957), Mahant Moti Das (1959): Guide the Court’s approach to examine the statute’s true character, history, purpose, the mischief addressed, and the remedy—especially relevant to the century‑long history of waqf regulation and abuse.
Dr. Jaya Thakur v. Union of India (2023): Modern restatement of the high bar for striking down statutes and the presumption of constitutionality, including manifest arbitrariness as a limited ground.
State of Andhra Pradesh v. A.P. State Waqf Board (2022): Example of massive government land notified as waqf and later quashed; supports the Legislature’s decision to abolish “waqf by user” prospectively and to create a government‑property filter (Section 3C).
Viceroy Hotels Ltd. v. Telangana State Waqf Board (TS HC, 2024): Illustrative of inconsistent administrative determinations on waqf status; underpins need for clarity and tribunal primacy.
Privy Council in Ilahi Bakhsh (1912) and Syed Mohd. Salie Labbai (1976); M. Siddiq (Ram Janmabhumi) (2020): Cited on historical recognition and judicial use of “waqf by user”. The Court acknowledges the concept but privileges contemporary legislative concerns of misuse and encroachment.
ST land protection cases: Amrendra Pratap Singh (2004), P. Rami Reddy (1988), R. Chandevarappa (1995), Lingappa (1985): Uphold special legal regimes protecting Scheduled Tribes’ land; relied upon to sustain Section 3E at the interim stage.
Mulla’s Principles of Mahomedan Law and Quranic principles: Used to affirm that only an owner can dedicate property to waqf (charity of one’s own wealth), supporting the ownership requirement in the new definition.

Legislative History and Its Influence

1923 Mussalman Wakf Act: Enacted to curb widespread mismanagement, misuse to defeat creditors, and concealment; introduced compulsory registration and penalties.
1934 Bengal Wakf Act: First statutory recognition of “waqf by user”.
1954 Muslim Wakfs Act: Retained “waqf by user”, mandated registration, surveys, Board oversight, and penalties.
Wakf Enquiry Committee (1969–76): Noted deliberate non‑registration; recommended barring suits by unregistered waqf (mirroring Bombay Public Trusts Act); led to 1984 amendments (Section 55E) that were never brought into force.
1995 Waqf Act: Consolidated regime; Section 87 initially barred enforcement for unregistered waqf until deleted in 2013 amendments; administrative failures and encroachment concerns persisted.
2025 amendments: Represent a renewed attempt to restore discipline (mandatory deed/registration with enforcement bar), protect public/tribal lands, rationalize secular governance, and end “waqf by user” prospectively.

Legal Reasoning by Provision

1) Definition of waqf (Section 3(r))

Five‑year practice of Islam requirement: The Court accepts the Legislature’s aim to avert contrived conversions and misuse (as evidenced since 1923), but stays this limb until rules specify a fair mechanism for determining practice; otherwise it is unworkable.
Ownership and anti‑contrivance: Consistent with Islamic law and basic charity principles; a donor can only dedicate what they own; not stayed.
Deletion of “waqf by user”: Not stayed; applied prospectively; Legislature may respond to misuse and encroachment (e.g., A.P. case). The Court notes that for three decades even “waqf by user” could be registered without a deed by narrating origin/nature/objects; longstanding non‑registration cannot found an equity against reform.

2) Government property filter (Section 3C)

Designated officer’s inquiry (3C(2)): Permissible to initiate a law‑bound inquiry by a senior officer to protect public lands; public property is held in trust for citizens. However, the proviso deeming such property non‑waqf pending report is stayed as arbitrary—existing waqf status cannot be erased pre‑determination.
Mutation and record correction (3C(3) and 3C(4)): Stayed as contrary to separation of powers: title determination is a judicial/quasi‑judicial function; revenue officers maintain records but cannot conclusively decide title.
Interim regime and tribunal primacy: Title questions go to the Waqf Tribunal (Section 83) with High Court appeal; during pendency of Section 3C proceedings, there shall be no dispossession or change in records and no creation of third‑party rights.

3) Protected monuments (Section 3D)

No stay. The provision voids waqf notifications over protected monuments/areas under the 1904 and 1958 Acts. The Court notes the ASI’s difficulties and alterations affecting authenticity. Crucially, Section 5(6) of the 1958 Act preserves customary religious observances, so religious practices are not extinguished.

4) Scheduled Tribes’ lands (Section 3E)

No stay. The bar on declaring ST lands as waqf is a constitutionally cognizable classification tied to the Fifth and Sixth Schedules and a long doctrinal line protecting ST land tenure. The JPC flagged real threats to tribal cultural integrity in such areas.

5) Central Waqf Council and State Boards (Sections 9 and 14)

The Court reads the text as permitting a potential non‑Muslim majority, but in view of the Union’s assurance on advisory and secular functions and to avoid ambiguity, it directs interim caps: not more than 4 non‑Muslims in the Central Waqf Council (22 members) and not more than 3 non‑Muslims in a State Board (11 members).
This preserves the minority’s autonomy concerns while allowing expertise and inclusive oversight over secular administration.

6) Chief Executive Officer (Section 23)

Not stayed. CEO is a senior State officer (not below Joint Secretary), ex officio Secretary, functioning under the Board’s overall control. The Court suggests, where possible, appointing a Muslim CEO to minimize concerns of religious interference.

7) Mandatory deed and registration; bar on enforcement (Section 36 and 36(10))

Not stayed. Aligns with century‑old policy to curb concealment/misuse. The bar on suits by unregistered waqf existed from 1995–2013; the 2025 clause restores parity with analogous public trust regimes. A six‑month grace period and “sufficient cause” proviso temper rigour.

8) Limitation (Section 107)

Not stayed. Applying the Limitation Act, 1963 to waqf property claims removes exceptionalism and promotes finality; the JPC envisaged only prospective operation.

9) Non‑Muslim donations (Section 104 deleted) and evacuee/override clauses (Sections 108, 108A deleted)

Not stayed. The amended definition confines creation of waqf to Muslims (with five‑year clause subject to rules); non‑Muslims can still donate via secular trusts. Evacuee law has been repealed; the 2013 override clause was recent and within the Legislature’s power to remove.

Impact

Immediate procedural guardrails for land disputes:
- No dispossession, no mutation, and no Board‑record alterations during Section 3C proceedings until the Tribunal’s final decision (with appeal to the High Court).
- No creation of third‑party rights pending adjudication—this freezes the status quo and deters strategic transfers.
- States must ensure Waqf Tribunals are functional and capacitated; an uptick in tribunal litigation is likely.
Governance composition settled pro tem: Capped non‑Muslim participation in the Council and Boards balances inclusivity with denominational autonomy, reducing the risk of perceived religious interference in secular administration. Expect revised notifications aligned with the cap.
Registration discipline and litigation strategy: All auqaf must promptly register and ensure a deed exists. The six‑month window and “sufficient cause” proviso should be strategically used to save pending enforcement actions.
End of “waqf by user” prospectively: Future claims cannot rely on mere long‑standing religious use; documentation and deeds will become pivotal. This will significantly reduce claims over government lands based on usage.
ASI and protected monuments: Clear primacy of monument protection with preserved customary worship should ease ASI operations while maintaining community observances.
Tribal land protection: Section 3E strengthens constitutional and statutory shields over ST land; members of STs practising Islam cannot dedicate ST land as waqf. This is a bright‑line rule likely to be watched closely for edge cases at final hearing.

Complex Concepts Simplified

Waqf: A permanent dedication of property by a Muslim for pious, religious or charitable purposes under Muslim law. The property becomes inalienable, and its benefits are applied to the dedicated purpose.
Mutawalli vs Sajjadanashin: A mutawalli is an administrator/manager of waqf property; a sajjadanashin often holds a spiritual office in a khanqah/dargah. The Act regulates the secular administration (mutawalli), not spiritual functions.
Waqf by user: A doctrine recognizing that continuous religious use could imply dedication even without a formal deed. The 2025 law deletes this concept prospectively.
Waqf Tribunal (Section 83): A three‑member body (District Judge as Chair) with powers akin to a civil court to decide waqf/property disputes, including title, eviction, and rights of lessor/lessee. Appeals lie to the High Court.
Revenue officer’s role vs title determination: Revenue officers maintain land records and can inquire factually, but conclusive title determinations belong to judicial/quasi‑judicial bodies—here, the Waqf Tribunal.
Protected monuments regime: Under the 1958 Act, ASI protects structures of national importance. Customary religious observances can continue even as ASI regulates structural integrity and additions/alterations.
Fifth and Sixth Schedules: Constitutional protections for Scheduled Areas and tribal areas, allowing special restrictions on land transfers to preserve tribal identity and autonomy.
Limitation Act application: Standard statutory time limits now apply to waqf immovable property claims (e.g., recovery of possession), promoting legal certainty.

Open Questions for Final Hearing

Whether the five‑year practice requirement (once rules are framed) can withstand scrutiny under Articles 14 and 15, and how the evidentiary mechanism will avoid arbitrariness.
The constitutional limits on State control over composition and appointments to Waqf Boards vis‑à‑vis Articles 25 and 26, beyond the interim caps now ordered.
The interplay between Section 36(7A) (Collector’s report blocking registration where there is “dispute” or “government property”) and tribunal primacy; the potential need to read in safeguards.
The precise scope of “no contrivance” in Section 3(r) and how it will be applied without chilling bona fide dedications.
Retrospectivity concerns alleged for Section 3E in specific fact‑situations, and whether transitional protections are needed for past dedications by ST members.

Practical Compliance Checklist

Registration and deeds: Audit all auqaf; ensure a registered deed exists; file or cure registrations within six months; preserve reasons for any delay to invoke “sufficient cause”.
Government property notices: If served with a Section 3C inquiry notice, immediately avoid creating encumbrances or third‑party rights; prepare to litigate title before the Tribunal.
Litigation posture: Review ongoing waqf suits for Limitation Act compliance; seek condonation where available; anticipate Tribunal appeals to the High Court.
Governance bodies: Reconstitute the Central Waqf Council/State Boards consistent with the Court’s interim caps on non‑Muslim membership.
Protected monuments: Coordinate with ASI; maintain customary worship within ASI’s regulatory framework; avoid alterations without ASI clearance.
Tribal areas: Avoid waqf declarations on ST lands; consider alternative charitable vehicles where appropriate.

Conclusion

This judgment exemplifies a careful, structure‑preserving approach to interim constitutional review of a complex regulatory overhaul. The Court:

Affirms the presumption of constitutionality and refuses a blanket stay, instead tailoring precise interim restraints where arbitrariness was prima facie evident (Section 3C’s proviso and self‑executing record mutations).
Re‑centres title adjudication in judicial/quasi‑judicial bodies (the Waqf Tribunal) and erects a status‑quo protective regime to prevent dispossession and third‑party dealings pending adjudication.
Shields ASI’s conservation mandate while safeguarding customary worship, and fortifies tribal land protections consonant with the Fifth and Sixth Schedules and prior Supreme Court jurisprudence.
Reinforces long‑standing legislative aims—mandatory registration/deeds and Limitation Act parity—to discipline waqf administration and reduce opportunistic litigation.
Balances denominational autonomy with inclusive administration by capping non‑Muslim representation in governance bodies and advising that CEOs preferably be Muslim, pending final adjudication.

The immediate effect is to stabilize governance and property status while the constitutional questions proceed to final hearing. In the longer term, this decision sets influential interim norms: revenue authorities cannot conclusively decide title, waqf administration must align with transparent registration and limitation regimes, and inclusivity in oversight must not dilute denominational control over religious affairs. The Court’s calibrated directives will guide both State action and waqf administration in the interregnum and shape the contours of final adjudication.