Waqf Act: Why govt agreed to put key provisions on hold

Two important provisions of the recently enacted Waqf (Amendment) Act, 2025 won’t be implemented for the time being, the Central government told the Supreme Court on Thursday, April 17.The provisions that won’t be implemented include formation of the Central Waqf Council and Waqf Boards and the provision on de-notifying properties already declared or registered as waqf.This commitment, in the form of Solicitor General Tushar Mehta’s statement recorded by the court, was necessitated after the inclination expressed by the bench comprising Chief Justice of India Sanjiv Khanna and Justices PV Sanjay Kumar and KV Viswanathan to pass an interim order granting a stay on certain provisions of the Act.Though Mehta tried convincing the bench that the issues raised by the petitioners did not merit a stay as the precedent says that there is always a presumption in favour of a legislation, the bench, refused to accept his request and observed that they were inclined to maintain status quo as far as the three provisions of the Act were concerned.Centre relents – for nowThe hearing started with Mehta making a request to the bench to not pass any stay order and said that it would be a rare event if the bench had to grant a stay on the operation of a legislation cleared by both Houses of Parliament.“I am respectfully urging, the questions [raised by the petitioners] are pertinent but the difficulty is, I am putting it candidly, there are not issues My lords consider staying on prima facie reading of some provisions, Mylords have to consider the history...we as government are answerable to people. Villages and villages are taken as waqf. It is a considered piece of legislation.”Justice Kumar, however, observed that the court was not passing a final order as of now. To which Mehta said that the step that the bench was inclined to take was a harsh one and sought a week’s time to file a reply opposing the petitions.CJI Khanna recorded in the order: “During the course of the hearing, SG Mehta states that the respondents would like to file a short reply within seven days and assured that till the next date, no appointment shall take place to board and councils under the 2025 Act. He also assures that waqfs, including waqf by user, already declared by notification or gazetted, their status shall not be changed,” and kept the case for hearing on interim orders on May 5.The court had objected to provisions under which appointments could be made to the Central Waqf Council and Waqf Boards because they allowed appointment of non-Muslims.The bench also asked the over 70 petitioners to decide which five petitions should be heard in detail and who would be the five counsels who would argue those petitions.The backgroundOn the first day of hearings, the bench had raised concerns over the provisions mentioned above and expressed inclination to stay their operation.The court had questioned whether Muslims, by the same token, could now join Hindu religious trusts.It also questioned how the long-standing concept of ‘waqf by user’ could suddenly be invalidated.‘Waqf by user' refers to the practice where a property, such as a mosque, dargah, graveyard, or community kitchen, is treated as waqf not because of a formal written deed, but because it has been consistently and openly used for religious or charitable purposes over a long period.The court also expressed concern over the clause that says a property could lose its waqf status as soon as a Collector initiates an inquiry into its classification.CJI Khanna said that the court’s interim order would aim to maintain balance. The court proposed that any property already declared or recognized as waqf—whether by court judgment, declaration, or usage—must not be de-notified or treated as non-waqf.While a collector could proceed with the investigations, the clause stating that such properties automatically lose waqf status would not be enforced. If necessary, the Collector could request the Supreme Court to modify the order.So far as the composition of Waqf Boards and the Central Waqf Council is concerned, the court suggested that while ex-officio members could be appointed irrespective of religion, all other members must be Muslim.The court recognized that although staying a legislation is not the norm, this case was exceptional due to the significant impact of the provision that allowed arbitrary denotification of ‘waqf-by-user’ properties.Arguments so farSenior advocate Kapil Sibal opened the arguments from the petitioners’ side and submitted that certain amendments infringe upon Article 26 of the Constitution by interfering with essential aspects of Islamic faith. He highlighted the following concerns:• Section 3(r) imposes a condition requiring individuals to prove they have practiced Islam for five years to create a Waqf, which he deemed unnecessary for born Muslims.• Section 3A (on Waqf-Al-Aulad) allows the State to interfere in inheritance matters during a person's lifetime, unlike the Hindu Succession Act, which applies after death.• Section 3C denies Waqf status to properties identified as Government property, with disputes being decided by a Government officer. This is deemed unconstitutional as it creates conflict of interest.• Section 3D prohibits Waqf creation over ASI-protected monuments. Sibal questioned its impact, citing Jama Masjid as an example, but CJI clarified that most ancient mosques wouldn’t be affected unless designated as protected monuments after Waqf creation.• Section 3E bars Waqf creation over Scheduled Tribes’ properties, which Sibal argued conflicts with existing tribal property laws.Sibal also flagged provisions allowing non-Muslims on the Central Waqf Council and State Waqf Boards, contrary to Article 26. He criticized mandatory registration and the application of the Limitation Act, which he said could enable adverse possession claims by encroachers.Centre's argumentsSolicitor General Tushar Mehta explained that the amended Waqf Act was enacted after extensive deliberations by the Joint Parliamentary Committee (JPC), which consulted stakeholders across the country. He emphasized that the legislation was passed in both houses of Parliament after a thorough debate.The bench, however, asked whether the concept of ‘waqf-by-user,’ even when established by court judgments or without disputes, is now rendered void under the amended law. In response, Mehta elaborated on the Islamic concept of 'Waqf,' describing it as the dedication of property to Allah for charitable purposes, managed by a ‘muttawali’ (caretaker).Court's observationsThe court raised concerns about the treatment of waqf properties under dispute with the government, questioning why such properties should not retain their status as waqf until disputes are resolved. The court proposed that such matters be decided by civil courts.The CJI further questioned the feasibility of registration requirements, noting that many masjids were established centuries ago, predating registration systems. Justice Viswanathan questioned the implications of Section 3C, which allows the government to claim land as government property, thereby halting waqf benefits during investigations. CJI deemed it unfair, asking what happens to generated rents during disputes. Mehta assured that aggrieved parties could seek remedies through the Tribunal and writ courts, with orders subject to judicial review.The CJI, however, remained skeptical, stressing the difficulty of registering waqf-by-user properties due to a lack of historical documentation and pointing out that many such properties are genuinely waqf, despite potential misuse. He referenced judgments from the Privy Council as evidence and expressed concern over the implications of denotifying waqf-by-user properties.The court also raised concerns about a particular provision which exempts trust properties from the Act, regardless of court judgments. The bench emphasized that while the legislature can amend laws, it cannot nullify or disregard court rulings. In response, Mehta expressed uncertainty about the inclusion of such wording and suggested ignoring that part. He noted that many Muslims prefer charitable actions through trusts rather than being governed by the Muslim Board.The court also raised concerns about provisions that allow non-Muslims to be nominated to the Central Waqf Council and State Waqf Boards.The CJI asked Mehta whether minorities, including Muslims, could similarly be included in Boards governing Hindu religious endowments.Mehta’s comment comparing the inclusion of non-Muslims in Waqf Boards to judges of all faiths hearing cases irked the bench. The CJI clarified that judges are secular in their adjudication, but religious boards deal with specific faith-based matters.Mehta said that non-Muslims would constitute a minority on the Boards, but Justice Kumar pointed out that the statute does not specify a limit on non-Muslim members, challenging the Solicitor General’s interpretation.Mehta assured the court that he will file an affidavit and that the current board composition would remain unchanged until the end of their term.