Waqf (Amendment) Act, 2025: Supreme Court Declines a Wholesale Stay but Freezes the Five-Year Islam Condition and the Collector's Title Power

The Waqf (Amendment) Act, 2025 drew one of the largest constitutional challenges in recent years — petitions by parliamentarians, organisations and individuals (the lead among them filed by Asaduddin Owaisi) attacking its conditions on creating waqfs, the executive's role in title disputes, the composition of waqf bodies and the abolition of waqf-by-user. After extensive interim hearings, the Court passed its detailed order on 15 September 2025.

The Key Question Before the Court

Pending final adjudication, which provisions of the amended waqf regime are so prima facie problematic that they cannot be allowed to operate?

What Was Stayed

Three interventions stand out. First, Section 3(1)(r)'s condition that a person must show five years' practice of Islam to create a waqf was stayed until State governments frame rules providing a mechanism for that determination — without one, the condition is unworkable and arbitrary in operation. Second, the proviso to Section 3C(2) and Sections 3C(3) and (4) — empowering the Collector or a designated officer to decide whether property claimed as waqf is government property — were stayed: until the Waqf Tribunal decides title under Section 83, waqfs are not to be dispossessed and revenue and Board records are to remain unchanged, with no third-party rights created during an inquiry. Third, the Court capped non-Muslim membership — at most 4 of 22 on the Central Waqf Council and 3 of 11 on State Waqf Boards.

What Was Allowed to Operate

The Court refused to suspend the Act wholesale. The registration requirement for waqfs continues; the prospective abolition of waqf-by-user was not stayed; and Section 23's provision for a Chief Executive Officer who may be non-Muslim survives, with the Court observing that the effort should be to appoint from the Muslim community as far as possible. The balance the order strikes is explicit: the presumption of constitutionality holds the statute up, while targeted stays prevent irreversible consequences — chiefly dispossession of waqf properties by executive decision — before the challenge is decided.

What the Court Actually Held (Interim)

• No wholesale stay of the Waqf (Amendment) Act, 2025.
• Section 3(1)(r)'s five-year-practice-of-Islam condition stayed until States frame rules with a determination mechanism.
• Proviso to Section 3C(2) and Sections 3C(3)–(4) stayed; no dispossession or record changes until the Waqf Tribunal decides title; no third-party rights meanwhile.
• Non-Muslim membership capped: 4 of 22 (Central Waqf Council), 3 of 11 (State Waqf Boards).
• Registration requirements and the abolition of waqf-by-user not stayed; CEO appointments preferably from the Muslim community as far as possible.

Why This Order Matters

• It preserves the status quo on waqf properties against executive dispossession — the most consequential interim protection in the batch.
• The composition caps rewrite, for now, the most contested identity provisions of the Act.
• It is a model of calibrated interim relief in statute challenges: presumption of constitutionality, but surgical stays where operation would be irreversible.
• The final hearing will decide the Act's fate; until then, this order is the operative waqf law of India.

What Should Advocates Take Away From the Order?

For Waqf Boards and Mutawallis

• Resist any Section 3C dispossession or record mutation by invoking the stay; title questions belong to the Waqf Tribunal under Section 83 for now.

For State and Revenue Authorities

• Hold Section 3C inquiries in abeyance to the extent stayed, create no third-party rights, and frame rules under Section 3(1)(r) if the five-year condition is to revive.

Key Takeaways

Frequently Asked Questions

No. This is an interim order: the Act's constitutionality remains to be finally decided, and the Court expressly declined a wholesale stay.

Not under the stayed provisions — until the Waqf Tribunal decides title, there can be no dispossession and no change in revenue or Board records, nor creation of third-party rights.

No. The Act's prospective abolition of waqf-by-user was not stayed; existing registered waqfs remain protected by the general status quo on dispossession.

Conclusion