Understanding the Supreme Court's Limited Interim Stay on Waqf Amendments
- Lenin Raj
- Sep 15
- 5 min read
As a litigator who's spent years navigating the intricacies of constitutional challenges, I followed the Supreme Court's proceedings in In Re: The Waqf Amendment Act, 2025, with keen interest. The judgment, delivered on September 15, 2025, by a Bench headed by Chief Justice B.R. Gavai, refuses to blanket-stay the controversial 2025 amendments to the Waqf Act, 1995. Instead, it opts for targeted interim directions, staying specific provisions while allowing the bulk of the law to operate. While the ruling demonstrates judicial restraint—rooted in the presumption of legislative validity—it leaves room for concern. In my view, the Court may have understated the potential for immediate harm, particularly to longstanding waqf properties and minority religious autonomy. Let me unpack this step by step, drawing from the hearings and the judgment itself.
The Facts and Legislative Odyssey of Waqf Regulation
The case stems from a batch of writ petitions challenging the Waqf (Amendment) Act, 2025, which overhauls the 1995 framework governing Islamic endowments (auqaf). Petitioners, including Muslim organisations and individuals, argued that the amendments violate core constitutional rights under Articles 14 (equality), 15 (non-discrimination), 25 (religious freedom), 26 (management of religious affairs), and 300A (property rights). The Act's key changes include mandating deed-based waqf creation, abolishing "waqf by user," empowering revenue officials to probe government land claims, barring waqf declarations on tribal lands or protected monuments, and allowing non-Muslims on waqf councils and boards.
To appreciate the stakes, one must trace waqf law's turbulent history—a saga of good intentions repeatedly undermined by mismanagement. It began with the Mussalman Wakf Act, 1923, enacted amid colonial-era concerns over "wasted or systematically misappropriated" endowments. The Statement of Objects and Reasons lamented how waqfs had become a "clever device to tie up property to defeat creditors and generally to evade the law under the cloak of a plausible dedication to the Almighty." Compulsory registration was introduced, but penalties were mild, targeting only mutawallis (managers).
Post-Independence, the Waqf Act, 1954, expanded oversight with surveys, boards, and tribunals, formally recognising "waqf by user" properties dedicated through long-standing religious use, even without deeds. Yet, as the Court noted, quoting the 1976 Wakf Enquiry Committee, "deliberate concealing of wakfs and wilful failure to have them registered [was] a deeply prevalent malady." The Committee, comprising eminent Muslims, recommended barring unregistered waqfs from enforcing rights in court, mirroring provisions in the Bombay Public Trusts Act, 1950.
Amendments followed: the 1984 changes (never notified) echoed this bar, but faced backlash. The 1995 Act, a comprehensive reboot, mandated registration within three months and imposed penalties for concealment, yet dropped the suit bar in 2013. Fast-forward to 2025: Parliament, citing rampant encroachments on government and private lands under the guise of "waqf by user" (e.g., the Andhra Pradesh Waqf Board's claim over 1,654 acres, struck down in State of Andhra Pradesh v. Andhra Pradesh State Wakf Board, 2022), introduced stricter rules. The Joint Parliamentary Committee (JPC) heard stakeholders, including the Archaeological Survey of India (ASI), which flagged waqf notifications hindering monument preservation.
This backdrop framed the petitions: challengers argued the amendments weren't reforms but a veiled assault on Muslim religious institutions, enabling state overreach.
The Imperative for Interim Stay: Why the Amendments Demanded Caution
Petitioners, led by Kapil Sibal, urged a full stay, invoking the triple test of prima facie case, balance of convenience, and irreparable injury. They painted a grim picture: without suspension, unregistered waqfs many oral or user-based, would lose enforceability after six months, per the new Section 36(10). Government inquiries under Section 3C could unilaterally derecognise properties as "government land" without due process, potentially evicting mutawallis mid-probe. Non-Muslim quotas on councils (up to 12/22) and boards (up to 7/11) risked secular interference in religious affairs, violating Article 26. Bars on tribal land waqfs (Section 3E) and monument declarations (Section 3D) were deemed discriminatory under Article 15, targeting only Islamic endowments.
From the courtroom, these pleas resonated. Sibal highlighted how pre-2025 laws preserved religious practices in monuments (citing 1904-1958 statutes), yet the amendments voided waqf status outright. Dr. Rajeev Dhavan invoked Islam's charitable tenets, arguing that the Act eroded cultural preservation under Article 25. Dr. A.M. Singhvi called it a "Catch-22": mandatory registration clashed with collector vetoes on disputed land, leaving waqfs remediless. In essence, the amendments risked chaos, dispossessions, endless litigation, and erosion of minority trust before constitutional merits were tested. A full stay was necessary, petitioners contended, to prevent fait accompli: once records are altered or third-party rights created, reversal becomes illusory.
The Court's Analysis: Prudent Restraint or Overlooked Risks?
The judgment meticulously applies settled law: statutes warrant "slow" interim stays unless manifestly arbitrary or unconstitutional (Charanjit Lal Chowdhury, 1950). Citing Ram Krishna Dalmia (1958) and Dr Jaya Thakur (2023), the Bench presumed validity, burdening petitioners to prove "glaring" violations.
Upholding most provisions, the Court found:
The five-year Islam-practice rule (Section 3(r)) deters "sham" waqfs but stayed its enforcement pending verification rules, acknowledging procedural gaps.
Deletion of "waqf by user" is prospective, curbing encroachments without retroactively voiding registered waqfs.
Monument (3D) and tribal land (3E) bars protect heritage and vulnerable groups, with existing laws allowing customary worship.
Limitation Act application (107) equalises waqf suits, removing prior "discrimination."
Non-Muslim quotas were capped at 4 (Council) and 3 (Boards) via directions, mitigating dominance fears.
Registration bar (36(10)) provides a six-month window and condonation, aligning with historical anti-abuse measures.
Yet, subtly, the ruling stayed problematic parts of Section 3C: the proviso halting waqf treatment during inquiries, and automatic revenue corrections by collectors. The Court insisted title disputes belong to Tribunals (Section 83), not executive officers, invoking the separation of powers. It barred dispossession or mutations pending adjudication, and froze third-party dealings during probes.
What might the Court have missed? The judgment's faith in Tribunals assumes swift justice, but backlogs could prolong uncertainty, causing de facto harm. By not staying non-Muslim inclusions outright despite petitioners' Article 26 pleas, it underplays the symbolic erosion of autonomy, especially when similar Hindu endowment boards remain community-exclusive. The prospective-only lens on "waqf by user" ignores unregistered historical sites, potentially orphaning them. Subtly, the ruling's deference to legislative wisdom (Mohd Hanif Quareshi, 1957) may overlook ground realities: JPC consultations notwithstanding, amendments like 3C risk executive bias, as Sibal argued, without "detailed guidelines." A fuller stay could have preserved the status quo, preventing misuse while the merits are argued.
Conclusion
This verdict embodies judicial minimalism intervening surgically rather than halting reforms wholesale. It's appreciable for upholding parliamentary prerogative while erecting safeguards. Yet, as an observer, I wonder if bolder relief was warranted to avert interim prejudice. The directions offer breathing room, but stakeholders must now push for fair inquiries and swift tribunal resolutions. Ultimately, the final hearing will decide if these amendments truly "protect" waqfs or, as critics fear, undermine them. For now, it's a reminder: constitutional courts must sometimes lean protective to prevent irreversible wrongs.
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