Editorial 1: SC order on Waqf Act
Context:
On September 15, 2025, the Supreme Court of India delivered an interim order on the Waqf (Amendment) Act, 2025, which had recently come into force after being passed by Parliament in April 2025. While the apex court refused to stay the entire legislation, it temporarily suspended certain provisions, particularly those altering the composition of Waqf boards. This development has reignited debates around the regulation of Waqf properties, minority rights, and the balance between state authority and religious autonomy.
Definition of Waqf:
- A Waqf is a permanent endowment of movable or immovable property by a Muslim, designated for religious, charitable, or pious purposes recognized by Islamic law.
- Once property is dedicated as Waqf, it becomes inalienable: it cannot be sold, inherited, or transferred, and it is administered by a mutawalli (manager). It is considered to be vested in the God.
- Historically, Waqf properties have played a crucial role in funding mosques, madrasas, dargahs, graveyards, orphanages, and other religious or community welfare activities.
Key Features of the Waqf (Amendment) Act, 2025:
Written Deed for New Waqf Creation:
- Earlier, properties could be declared Waqf by long-term use for religious or charitable purposes, even without formal documentation (“Waqf by use”).
- The Amendment mandates that all new Waqf properties must have a written deed, ending the scope of oral or customary declarations.
- This was aimed at preventing misuse, where private or government land was claimed as Waqf after years of occupation.
New Powers for District Collectors:
- A new section (32-C) empowers state governments to designate a District Collector (or higher officer) to enquire if the Waqf property is suspected to be a government property.
- When enquiry begins, the property cease to be treated as a Waqf. This section also allows the designated officer to directly order corrections in land and revenue records if it is concluded to be a government property.
Inclusion of Non-Muslims in Waqf Boards:
- The Act opened Waqf Boards and Tribunals to non-Muslims, enabling their nomination to administrative posts. The government argued this would enhance transparency and accountability.
“Five-Year Rule” for Creating Waqf:
- Any person seeking recognition of property as Waqf must demonstrate that they have been practicing Islam for at least five years.
Applicability of the Limitation Act:
- The 2025 law brought Waqf property disputes under the Limitation Act, 1963, setting deadlines for claims. Earlier, claims could be made decades later, causing prolonged uncertainty.
Reasons for challenging the Act:
- The Amendment faced opposition from multiple quarters, including Muslim organizations, opposition parties (Congress, TMC, AIMIM, SP, JD(U), RJD, etc.), and civil rights groups. The main grounds of challenge were:
- The law violates the Article 26 of the constitution, which allows every religious denomination the right to establish and manage institution for religious and charitable purposes, and the right to manage its own affairs in the matters of religion.
- The powers given to District collector encroach on the powers of judiciary by allowing revenue officer to decide complex question of titles, which is the function of a court or a tribunal.
- The nomination of non-Muslims to Waqf boards violates the right to administer their own religious and charitable institution.
- Abolition of “Waqf by use” principle will make many properties, which were serving as Waqf for many years without any formal deeds, disputed.
- The “five year rule” was discriminatory and arbitrary, with no clear procedure to establish one’s religious practice.
Provision stayed by the SC:
Powers of the District collector:
- It stayed the provision that allowed the suspension of Waqf property on the commencement of the enquiry. It also stayed the power of designated authority to correct land and revenue records
- SC declared that these provisions were against the principle of separation of powers
- However, it held that no third-party rights can be created on such properties until the Waqf property gives the final decision.
Nomination of Non-Muslims to Waqf boards:
- To prevent domination of non-Muslims, their number is capped to four member (out of 22) in Central Waqf Council and three (out of 11) for State Waqf Boards.
Five year rule:
- It also stayed the “five year principle” till the government frames rules and procedure to establish how a person’s religious practice over five years is to be verified.
Broader Implications:
- For Minority Rights: The case will decide the extent of autonomy Muslim institutions enjoy in managing religious property.
- For Governance: The reforms, if upheld, may set precedents for regulating other religious endowments.
- For Politics: With strong opposition from Muslim organizations, the issue may acquire political salience, especially in states with significant minority populations.
- For Judiciary: The SC’s final verdict will shape the balance between secular state regulation and minority cultural rights.
Way Forward:
The Supreme Court’s interim order on the Waqf (Amendment) Act, 2025 reflects a cautious approach: it has not struck down the Act, but restrained provisions that may cause immediate harm to minority rights. The final judgment will have far-reaching consequences for constitutional law, secularism, and minority protection in India.