September 18, 2025
SC Interim Order on Waqf Act 2025: Collector’s Powers and 5-Year Rule Stayed
Waqf (Amendment) Act, 2025 – Supreme Court Interim Stay
On September 15, 2025, the Supreme Court, in an interim order, refused to suspend the entire Act but stayed certain contentious provisions, pending final adjudication.
The Bench was led by Chief Justice B.R. Gavai and Justice A.G. Masih.
What is Waqf?
- Under Islamic law, waqf refers to a charitable endowment where property is permanently dedicated for religious or philanthropic purposes, such as:
- Mosques, graveyards, madrasas, or charitable institutions.
- Governed by the Waqf Act, 1995, administered through State Waqf Boards and the Central Waqf Council under the Ministry of Minority Affairs.
Key Features of the Waqf (Amendment) Act, 2025:
The 2025 amendment introduced major changes, including:
District Collector’s Powers:
- Empowered to decide if a property claimed as waqf is actually government land and alter revenue records accordingly. (Section 3C)
Five-Year Practice Rule:
- Only individuals who have practised Islam for at least five years can create waqf property.
Non-Muslim Members on Waqf Boards:
- Allowed non-Muslims to be appointed to the Central Waqf Council and State Waqf Boards.
Removal of “Waqf by User” Doctrine:
- Earlier, land used for Muslim religious purposes over a long period automatically became waqf.
- The 2025 amendment abolished this doctrine to prevent misuse.
Mandatory Central Digital Registration:
- All waqf properties to be registered on a centralized digital portal for transparency.
Application of Limitation Act, 1963:
- Waqf Boards must reclaim encroached property within the 12-year limitation period, similar to private property disputes.
Grounds for Challenge:
Multiple petitioners, including MPs Asaduddin Owaisi, Mahua Moitra, and Manoj Kumar Jha, challenged the law, citing violation of Fundamental Rights:
| Ground | Constitutional Provision Invoked | Key Argument |
|---|---|---|
| Right to Manage Religious Affairs | Article 26 | District Collectors deciding ownership interferes with internal management of religious institutions. |
| Religious Freedom | Article 25 | Five-year practice rule is arbitrary and infringes upon religious freedom. |
| Minority Rights | Article 30 | Allowing non-Muslims on Waqf Boards undermines the autonomy of Muslim religious institutions. |
| Separation of Powers | Basic Structure | Vesting executive officers with judicial powers violates independence of judiciary. |
Supreme Court’s Interim Order: Key Highlights
A. Provisions Stayed:
The Court stayed contentious provisions, stating they may cause “serious consequences” to property rights and minority protections.
| Provision | Court’s Reasoning |
|---|---|
| Section 3C – District Collector deciding ownership and altering records | Questions of title must be decided by judicial or quasi-judicial bodies, not executive officers. |
| Automatic divestment of waqf status once inquiry starts | Prima facie arbitrary and violates due process. |
| Five-year practice rule (temporarily suspended) | Cannot operate until the Centre creates a mechanism to verify compliance. |
| Cap on Non-Muslim Members | Central Waqf Council limited to 4 non-Muslims (out of 22), State Boards capped at 3 non-Muslims (out of 11). |
B. Provisions Allowed to Continue:
Some provisions were upheld as necessary for accountability and transparency:
| Provision | Why Upheld |
|---|---|
| Abolition of “Waqf by User” Doctrine | Prevents fraudulent claims on government land as waqf. |
| Central Digital Registration of Properties | Ensures transparency and curbs mismanagement. |
| Application of Limitation Act, 1963 | Provides uniformity with general property law. |
| Only owner can create waqf | Based on classical Islamic principles of charity – cannot donate someone else’s property. |
Implications for Minority Rights:
| Positive Implications | Concerns Raised |
|---|---|
| Greater transparency and digital tracking of waqf properties. | Five-year rule allows state to police personal faith, restricting religious freedom. |
| Reduction in fraudulent land claims through “waqf by user.” | Inclusion of non-Muslims may dilute minority control over religious institutions. |
| Judicial oversight ensured by staying Collector’s powers. | Risk of executive overreach into religious affairs if checks are not implemented. |
Expert View:
- Faizan Mustafa (VC, Chanakya National Law University) cautioned that allowing the state to verify a person’s religious faith may lead to “policing private religious choices”, violating Articles 25 and 26.
Way Forward:
- Final Adjudication: Supreme Court to decide constitutionality in detail.
- Clear Verification Rules: If five-year rule remains, transparent and non-invasive verification is needed.
- Judicial Primacy: Title disputes must be adjudicated only by courts or tribunals, not executive officers.
- Balanced Representation: Non-Muslim representation should ensure inclusivity without compromising minority autonomy.
Conclusion:
The Waqf (Amendment) Act, 2025, represents a significant shift in the governance of religious endowments.
While the Supreme Court’s interim stay protects minority rights and judicial oversight, the final verdict will determine the delicate balance between state regulation, religious autonomy, and constitutional freedoms.
September 17, 2025
September 16, 2025
September 15, 2025
September 9, 2025
