Waqf (Amendment) Act 2025 was passed by the Parliament in April 2025. The legislation amended the 1995 Waqf Act, which governs properties dedicated for religious or charitable purposes under Islamic law, assets that by some estimates, are worth hundreds of thousands of Crores and constitute the third-largest landholding in India after the railways and defence. Yesterday, the Supreme Court declined to stay the Waqf (Amendment) Act 2025 in its entirety but surgically excised several provisions that it deemed prima facie arbitrary.
Here are the key changes the SC has incorporated into the Act:
1 The SC’s most significant intervention concerns Section 3(r), which requires anyone creating a waqf to demonstrate that they have been practising Islam for at least five years. It stayed the provision until the government frames rules for determining religious practice. The court observed that “no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practising Islam for five years or not”. This creates an intriguing precedent; the state may regulate religious dedications but it must first devise transparent mechanisms for measuring faith-a task that would challenge even the most sophisticated bureaucracy.
2 Another constitutionally significant aspect of the verdict concerns Section 3C, which empowered district Collectors to determine whether properties claimed as waqf actually belong to the government. The court stayed the provisions that would strip waqf status from properties even before Collector completes the inquiry, calling it prima facie arbitrary. The court directed that waqf properties can not be dispossessed or have their revenue records altered until the matter is finally adjudicated by the Waqf tribunal and any subsequent appeals. ‘This effectively neuters one of the Act’s most potent provisions for reclaiming alleged government land from waqf boards’.
3 The court addressed concerns about ‘subordination’ of Muslims members in waqf administrative bodies by imposing clear numerical limits on non-Muslim participation. While the amended Act’s language could have permitted up to 12 non-Muslims participation on 22-member Central Waqf Council and 7-11 member in State Waqf Boards, the court capped these at 4 and 3 respectively. Additionally, it directed the Chief Executive Officers of waqf boards should “as far as possible” be Muslim, though stopping short of making this mandatory. ‘This arithmetic compromise attempts to balance government’s stated aim of bringing transparency and inclusivity against minority community’s concern about external interference in religious affairs’.
4 The court upheld the deletion of the ‘waqf by user’ provision, which had allowed properties to be declared waqf based on longstanding religious use without formal documentation. The court noted instances of misuse, including cases where vast government lands have been claimed as waqf property. Crucially, the court clarified that this change applies prospectively- existing waqf-by-user properties registered before April 8, 2025, remain protected. This distinction prevents what petitioners feared would be a “wholesale takeaway”’ of community properties while addressing the government’s concerns about future encroachments.
5 The court declined to interfere with provisions declaring waqf status void for properties that are protected monuments or belong to Schedules Tribes. On monuments it noted that the Ancient Monuments Acts already permit religious observances, suggested no real curtailment of religious freedom. On tribal lands, the court emphasized the constitutional obligation to protect “one of the most marginalized and vulnerable sections” of society, finding the restriction justifies despite its selective application to Muslim dedications.
In the end, the verdict represents neither comprehensive victory for the government might have hoped for nor the complete protection the Muslim community sought. By staying provisions that would have allowed administrative officers to unilaterally alter property rights while upholding measures against future misuse, the court has attempted to protect both public property and legitimate religious endowments. The requirement for the government to frame rules before implementing the five-year practice requirement creates an interesting administrative challenge-how does one codify and measure religious observance in a secular state?
Anil Malik
Mumbai, India
16th September 2025