THE SUPREME COURT’S INTERIM JUDGEMENTon Waqf (Amendment) Act, 2025 pronounced by the Division Bench of Chief Justice of India BR Gavai and Justice Augustine Masih on September 15, 2025 is problematic on almost all counts – issue framing, adjudicatory reasoning, legal interpretation, and the ratio.
Context of the Interim Judgment
Solicitor General Tushar Mehta had contended that only three issues were up for consideration at the interim stage – Section 3(r) (waqf by user), Section 3C (special provision for government properties) and Sections 9 & 14 (changes in the composition of waqf council and board). The contention was disputed by Senior Advocate Kapil Sibal. The Court thereupon agreed to consider all the issues raised by the parties on the question of interim relief (at Para 4). It roughly addressed the following questions:
Is practice of Islam necessary for the creation of waqf?
How would surveys by the designated authorities determine the status of a waqf property?
Could non-Muslims be made members of the waqf bodies?
How far should faith determine the appointment of Chief Executive Officer (‘CEO’)?
What should be the status of “waqf by user” under the statutory law?
Could tribal Muslims create waqf?
Should the Ancient Monuments Act, 1958 affect the waqf law post amendment?
Could non-Muslims create waqf?
Would the Limitation Act, 1963 be applied over waqf property?
The Stay Order addressed questions 1 to 4 in detail. Questions 5 to 9 did not find space in the conclusion, even though the Court discussed them within the judgment. The most glaring absence being the Court’s omission of “waqf by user” from the conclusion.
The Court’s reasoning in almost all the matters it discussed fell flat. There are two categories of such issues, as already indicated, the ones where the Court went ahead to include them in the conclusion, and the ones where the Court did not.
I will analyse the Court’s reasoning as it emerges from the first category.
Practice of Islam
On the question of the practice of Islam for a minimum period of five years, the Court referred to the Mussalman Waqf Act, 1923 to argue that it was enacted to prevent mischief where waqf was used as a “clever device” to tie property and defeat creditors (Para 136). The Court took cue from instances where people convert to Islam to marry again while escaping the offence of bigamy (Para 138). It went ahead to read “conversion” as one of the reasons behind the enactment of the 1923 Act. It held the provision valid while suggesting that the Central government make rules to ascertain “practice” of Islam, before the provision could be enforced.
The Court was wrong in its reading of mischief around the enactment of the 1923 Act. The Mussalman Wakf Validating Act, 1913, a precursor to the 1923 Act, had recognised family waqf (waqf alal aulad) as an institution. The debate around the 1920s centered around mismanagement of the waqf properties, lack of identification of such properties and the need to streamline their governance. The “mischief” was with respect to these aspects and more specifically instances where waqf rights (which did not allow alienation of property) and inheritance rights (which allowed distribution of property) were found to contradict each other. The Court’s reading of “conversion to Islam” into mischief and to quote bigamy to validate its argument is wrong.
It is also wrong for the Court to suggest that the Central Government make rules to ascertain the practice of Islam for the purpose of waqf creation. What is the meaning of the term “practice” here? How would such a practice be ascertained by the Government? Would this not violate the Constitution which allows the people “freedom of speech and expression” (Article 19(1)(a)), to “freely profess, practice and propagate religion” (Article 25) and the right of a religious denomination to “manage its own affairs in matters of religion” (Article 26).
Moreover, is the Court not complicating the understanding of religious practice by opening doors to discuss “practice” while the question of “essential religious practice” is itself pending before another bench of the Supreme Court in the Sabarimala Review ?
Finally, even if the government should make such rules (which cannot be allowed in the first instance), it would be the State Government and not the Central Government. Allowing the Central Government to interfere is a clear violation of Section 4 of the Muslim Personal Law (Shariat) Application Act, 1937.
Survey of the Waqf property
Amendment to Section 3 provided that any property identified or declared as waqf property is not to be deemed waqf property. It additionally provided that till the designated officer submits his report on the status of the property, the property shall not be treated as a waqf property. The Court agreed with the first but not the second, calling it arbitrary.
The reasoning of the Court hinged around the importance of protecting government property. It argued that the government holds the property of the public in trust and anyone who holds wrongful possession of such property cannot be permitted to claim it as his own property (Paras 155 and 157). While the argument has merits, its basis does not. On what basis has the Court assumed that there has been wrongful possession of the public property? Are there any verified studies and/or reports demonstrating that?
Let us assume there was wrongful possession of public property in a particular instance. How could that incident (or even hundreds of similar instances) create presumption of wrongful possession on account of the waqf? Does the requirement of the survey not imply that unless proven, wrongful possession cannot be established?
The Court has itself accepted this logic—that till proven otherwise (through survey) the property remains the waqf property (Para 158). Why is the Court then countering its own logic by presuming wrongful possession in the first instance (Paras 155 and 157)?
The Court also held that through the amendment introduced in Section 3C, the revenue officer cannot be entrusted to determine the title of the property post survey. This is both prima facie arbitrary and violation of the constitutional principle of separation of powers. The amendment, the Court noted, therefore, should be stayed (Paras 166-167). It further noted that the determination of the title should be done by the Tribunal and till the time it is finally adjudicated, the Mutawallis should not be allowed to create any third-party rights in respect of such properties (Para 167).
The Court’s reading here seems far more balanced. However, the presumption that the property is public property continues to run in the background, which, nevertheless, makes the provision problematic.
Membership of Waqf Council and Waqf Board
During the hearings, the Solicitor General had argued that the amendments in Sections 9 and 14 with regards to the Central Waqf Council and State Waqf Boards, allowed a maximum 4 and 3 non-Muslim members, respectively. Additionally, he had argued that the function performed by the Council and the Board is “secular” in nature and for such a function having non-Muslim members is not problematic (Para 181).
In the “plain reading” by the Court, the amendment allowed 12 non-Muslims out of 22 members in the Waqf Council and 7 non-Muslims out of 11 members in the Waqf Boards (Paras 182-183). The Court stated, “We, however, do not wish to go into the question qua inclusion of non-Muslim members amounting to interference in religious practices, at this stage” (Para 184). However, in the very next paragraph it proposed that the Central Waqf Council and the State Waqf Board should not have more than 4 and 3 non-Muslim members.
There are three problematic developments happening here.
First, the Court is reading the function of the Waqf bodies as “secular”. It is doing this—by pushing the determination of the religious practices argument to the merits stage; and accepting the argument that non-Muslims indeed could be made members of these bodies.
Second, the Court is adopting the argument of the Solicitor General to have 4 and 3 members in the respective waqf bodies, having already highlighted that a plain reading of the judgment does not give rise to such an understanding.
Third, the Court is reading a “lie” into “law”. How could an interpretation that does not align with the language of the statute, in the Court’s own estimation, be read into law? In what manner such reading could “avoid any ambiguity” in law as the Court reasoned (Para 185)?
Chief Executive Officer
The petitioners argued that the amendment to Section 23 allowed a non-Muslim to be appointed as the Chief Executive Officer (‘CEO’) of the Board. This amounted to a non-Muslim directly interfering with the religious affairs of the “minority community” (Para 188). The Court observed two things – first, ordinarily it would be a Muslim who normally occupies the post of the CEO; and second, even if the CEO were a non-Muslim, it would not have much effect as majority of the members in the Board (8 or more out of 11) will be Muslims (Para 189).
How could the Court assume that the CEO would normally be a Muslim? What if a non-Muslim is appointed as the CEO? Would such an appointment violate any rule? If no rule is violated, is the Court not supporting the argument that such an appointment is valid? The Court also affirms such understanding by emphasizing that Muslims anyways would constitute the majority of the Board.
What needs to be understood here is that waqf is a religious institution governed by the Muslim Personal Law (Shariat) Application Act, 1937. Would it not be wrong to allow non-Muslims to be its members? Are religious institutions public institutions in a manner where anyone from the public could gain membership?
The question after all is not the “effect” of non-Muslim membership on the functioning of the Waqf Board. Rather it is whether such membership could be allowed at all. This understanding must also inform the appointment of the CEO.
I will now analyze the reasoning of the Court from the second category of issues.
Waqf by User
The issue of waqf by user was not properly addressed by the Court. It used a two pronged argument to agree with waqf by user’s prospective abolition – first, that Mutawallis (caretakers of the property) have already enjoyed a long time and their inability to register the property must be punished; second, that there are numerous claims where through the waqf by user huge number of Government properties have been encroached upon.
The Court went against the logic of the existing law which provides punishment in the form of fine in case a Mutawalli fails to apply for the registration of the waqf (Section 61(1)(a)). The law did not convert a waqf property into a non-waqf property on account of its lack of registration. The argument that an unregistered waqf by user would cease to exist due to lack of registration is alien to the prevailing logic of the law. More importantly, what is the basis of the understanding that non-registered waqf is more likely a government property?
The logic of waqf law is to safeguard the waqf property and not to dismantle the institution of waqf. This aligns with the logic of property law as well—where possession presumes ownership and someone who seeks to challenge the presumption must demonstrate better title. This means that the presumption here falls in favour of the waqf and it is the Government, instead of the waqf, which must demonstrate its title to the property.
The principle is as old as the Common Law. According to many commentators, including F.W. Maitland (Law Quarterly Review, 1886), this principle (that possession is a mark of ownership) is the very basis on which common law developed. The principle was adopted in India in the form of Section 9 of the Specific Relief Act, 1877 (later Section 6 of the Specific Relief Act, 1963).
Section 40 of the Waqf Act, 1995 embodied this principle in statutory language. It allowed the challenge to the presumption that the property belonged to waqf. However, the question for determination was not whether a property is Government property or not. It was instead - whether a property is a waqf property or not.
The Court, however, has turned the argument on its head by holding that instead of ascertaining whether a property is a waqf property or not, what is more important is to ascertain whether a property is a government property or not. It is difficult to understand how this logic entered the reading of law.
Perhaps the new logic gains entry through the Amendment which omitted Section 40. As it turns out, the Supreme Court has validated the omission of Section 40 without even going into the merits of the case.
Tribal Muslims and Waqf
Section 3E of the Amended Waqf Act bars declaring any land belonging to the Scheduled Tribes coming under the Fifth Schedule or the Sixth Schedule of the Constitution, as waqf. The reasoning provided by the Government was that the Constitution mandates safeguarding the rights of Scheduled Tribes based on their specific culture. It was argued that “a declaration of waqf in these areas was creating a serious threat to the existence of these cultural minorities, whose religious practices are distinct and who do not follow religious practices prescribed under Islamic religion” (Para 177).
The Court accepted these contentions and observed that the provision was indeed “enacted with the avowed object of safeguarding the interest of … Scheduled Tribes” (Para 178). It cannot, therefore, be held as being arbitrary.
Member of Parliament from Lakshadweep, Hamdullah Sayeed, moved a petition challenging the Amendment Act before the Supreme Court. It was one of the more than fifty odd petitions that were filed. The former Chief Justice of India, Sanjiv Khanna’s Court agreed to hear only five petitions - Arshad Madani v. Union of India (W.P.(C) No. 276/2025); Muhammad Jameel Merchant v. Union of India (W.P.(C) No. 314/2025); Mohammed Fazlurrahim & Anr. v. Union of India & Ors. (W.P.(C) No. 284/2025); Sheikh Noorul Hasan v. Union of India & Ors. (W.P.(C) No. 331/2025) and Asaduddin Owaisi v. Union of India (W.P.(C) No. 269/2025). The Stay Order is based on hearings in these petitions only.
Sayeed’s petition, inter alia, challenged the constitutional validity of Section 3E. It argued that by prohibiting Muslim members of Scheduled Tribes from declaring their land as Waqf, the provision was violating their fundamental rights under Articles 14, 15, 25, 26, 29, and their constitutional right under Article 300A.
Since Sayeed’s petition was not heard in the Court, it is understandable that his arguments would not inform the Court’s understanding on the issue. However, that does not mean that the Court would accept the arguments from the Government without scrutinizing them at any level. How could the Court accept the argument that Waqf was a serious threat to cultural minorities? How would Waqf by a Muslim member from the ST community be a cultural threat to others in his vicinity?
Is the Government not copy-pasting its logic from the Assam NRC, while extending it to argue that indigenous Muslim population could also pose a threat to its own cultural geography? It is difficult to comprehend what else informed the understanding of the Court if not the argument of the Government.
Application of Ancient Monuments Act, 1958
Section 3D of the Amended Act provides that any property declared or notified as waqf shall be void if at the time of such declaration or notification it is a protected monument or protected area under the Ancient Monuments Preservation Act, 1904 or Ancient Monuments and Archaeological Sites and Remains Act, 1958. The Government based its understanding on the Archaeological Survey of India’s (‘ASI’) argument that the Mutawallis were “not permitting the ASI officials to take steps for the protection and preservation of these monuments” (Para 170).
The petitioners argued that the provision deprived the persons practicing Islam from performing their religious practices (Para 171). However, the Court found the argument fallacious because Section 5(6) of the 1958 Act permitted customary religious practices even if the area is a protected monument (Para 172).
What the Court failed to understand was that the Government’s argument raised an administrative and not a substantive issue. If the ASI is unable to carry out its function, measures should have been taken to streamline the process and not to turn a waqf property into a non-waqf property (in other words, the property of the community into state owned public property). How could the Court allow a change in the nature of the property?
Waqf by Non-Muslims
The Amendment deleted Section 104 which provided that in case a non-Muslim transfers certain property to support a waqf, the property will become part of the waqf property. The petitioners found the deletion arbitrary. However, the Court found the petitioner’s stand self-contradictory as waqf in their contention was understood as a religious institution specific to Islamic religion (Para 197).
The Court noted that such transfer of property could be done by “giving or donating it to a trust or creating a trust for any of the purposes which were included in Section 104 of the Original Waqf Act” (Para 197).
It is interesting that the Court is appreciative of the objectives of Section 104. However, it disagrees with the results achieved by the statutory language of the provision. The method it adopts to fill the gap is by complicating the process – where earlier, a simple transfer could have served the function, it now asks one to transfer the property to a trust.
The question is - how could the purposes of a “trust” and a “waqf” be similar in the context of Section 104? Are there any existing trusts that protect - a mosque, idgah, imambara, dargah, khangah or a maqbara (a Muslim graveyard), a choultry or a musafirkhana? When there is hardly any existing precedent, how could one conceptually align trust with waqf, as the Court suggests?
The deletion of Section 104 should be read in the context of addition to Section 2 of the 1995 Act. The proviso holds that the Waqf (Amendment) Act, 2025, will not apply to any trust, whatever be its name, created by a Muslim for any purpose similar to Waqf. This means that even if a Muslim goes ahead and incorporates a trust to protect any of the above categories, the Waqf law would become inapplicable. In other words, a trust for religious purposes falls outside the purview of waqf law.
In essence, the Court is supporting secularization of religious institutions in the garb of the 2025 Amendment.
Application of Limitation Act, 1963
Amendment to Section 107 allows prospective application of the Limitation Act, 1963 upon the waqf property. The Court agreed with the language of the provision, arguing that the amendment removed discrimination embedded in the language of Section 107 (Para 201). The amendment could, therefore, not be stayed.
Section 107 adopted the longstanding understanding of the Indian Courts which allowed the application of limitation law to religious properties. In Masjid Shahidganj v. Shiromani Gurudwara Prabandhak Committee (1940), the Privy Council observed that waqf properties could not be put beyond the purview of the limitation law (pages 507-508. The observation was adopted in Ismail Faruqi v. Union of India (1995) (pages 62-63) and M. Siddiq v. Mahant Suresh Das (2019) (Para 753). What the Court does in its Stay Order is to only validate its ruling by endorsing the deletion of Section 107.
Does the argument that the law of limitation applies to religious properties, also apply to other religions?
The very ruling of the Supreme Court in M. Siddiq goes against this understanding. The string of arguments—that Muslims could not furnish a “specific grant of the land underlying the mosque as a foundation of legal title” (Para 783) and that between 1528 and 1856-1857 Muslims could not provide evidence to establish “possessory control over the disputed site” (Para 786) clears the air on the issue. While making these arguments, the Court indirectly ruled that the law of limitation could not be applied in the case of Ram Janma Bhoomi.
Beyond the Interim Judgment
The Court arrived at the Interim Judgment in a selective fashion. It failed to entertain some of the other pressing issues:
Amendment in Section 2, taking “trust” for religious purposes created by a Muslim outside the purview of waqf law.
Amendment in Section 3(r), removing Muslim law as the law governing waqf.
Amendment in Section 3A, linking waqf alal aulad with inheritance rights of heirs, a question of theology and not statutory law.
Amendment in Section 4, doing away with Survey Commissioner and giving more power to District Collector.
Amendment in Section 5(2B), giving Central Government oversight over the State Government.
Amendments in Sections 6(1), 32, 33, 55A, 65, 67, 72, 73 and 83, diluting the power of the Waqf Tribunal.
Amendment in Section 13 (2A), introducing separate Board of Awqaf for Bohras and Aghakhanis while diluting the separate existence of Sunni and Shia waqf bodies.
Amendment in Section 36, allowing dilution of the power of Waqf Board while enhancing the role of District Collector.
Amendment through omission of Section 40, taking away the jurisdiction of the Waqf Board to determine if any property is a Waqf property.
Amendment in Section 64(1), allowing removal of Mutawalli on account of his membership of an unlawful association under Unlawful Activities Prevention Act, 1967.
Amendment through omission of Sections 108/108A, diluting the overriding effect of Waqf law.
Amendment through insertion of Section 108B, allowing the Central Government to make rules with respect to the Act.
One may argue that these issues require discussing merits of the case. Therefore, criticism of the interim judgment on this basis is not warranted.
It needs to be emphasised that the Court did not give its reasoning why it chose to take on some and no other issues while framing the Stay Order. For instance, provisions that replaced Muslim law with statutory law, removed the office of survey commissioner, diluted the power of the waqf tribunals, gave central government superintendence over state government and enhanced the role of district collector, could very well have been the subject matter of the said Stay Order as well.
Perhaps when the judgment on merits is out, it would be a better time to analyze these other issues in greater detail.