It is definitely in the fitness of things and so also perfectly in order that while taking a progressive, pragmatic and persuasive stand, the Supreme Court in a most learned, laudable, landmark, logical and latest 128-page judgment titled In Re: The Waqf Amendment Act, 2025 (1) in Writ Petition (Civil) No. 276 of 2025 & Connected Matters and cited in Neutral Citation No.: 2025 INSC 1116 that was pronounced most recently on September 15, 2025 in the exercise of its civil original jurisdiction has stayed some provisions of the Waqf (Amendment) Act, 2025 which had generated a lot of dust and din until petitions challenging the amendment’s validity are finally decided but has refused to strike it down entirely as was being demanded. It must be noted that the top court was hearing petitions that had been filed by Muslim groups and so also Opposition parties against the Waqf (Amendment) Act, 2025 that was enacted by Parliament in April 2025. The Apex Court also made it indubitably clear that it did not prima facie find several of the provisions that were under challenge to be arbitrary.
At the very outset, this brief, brilliant, bold and balanced judgment authored by CJI Hon’ble Mr Justice BR Gavai for himself and Hon’ble Mr Justice AG Masih sets the ball in motion by first and foremost putting forth in para 1 that, “The first five writ petitions in this batch of matters being Writ Petition (Civil) Nos. 276, 314, 284, 331 and 269 of 2025 challenge the validity of several of the Sections of the Waqf (Amendment) Act, 2025, (Hereinafter referred to as “impugned Act”) on the ground of they being ultra vires the Constitution of India being violative of Articles 14, 15, 19, 21, 25, 26, 29, 30 and 300A of the Constitution.”
To put things in perspective, the Bench envisages in para 2 disclosing that, “Though the petitioners seek to challenge the constitutionality of almost all the Sections of the impugned Act, from the tenor of the arguments advanced, it is apparent that the main challenge is to the amendments carried out in Section 3(r), 3C, 3D, 3E, 9, 14, 23, 36, 104, 107, 108, 108A of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 (Hereinafter referred to as “Amended Waqf Act”). It is, therefore, clear that the most contentious Sections of the impugned Act are Sections 4(ix)(a), 4(ix)(b), 5, 10, 12, 16, 21, 43, 44 and 45 which have amended the provisions of the Waqf Act, 1995 (Hereinafter referred to as “Original Waqf Act”.).”
Be it noted, the Bench notes in para 73 that, “By now, it is a settled principle of law that the courts should be very slow in granting interim relief by way of staying the provisions of an enactment. Interim relief of such a nature can be granted in rare and exceptional cases; where parties are in a position to point out that either the legislature which enacted the law lacks legislative competence or the provisions are ex-facie in violation of any of the provisions in Part III of the Constitution or constitutional principles or is manifestly arbitrary. Reference in this respect can be made to the following landmark judgments of this Court.”
While citing the relevant case law, the Bench points out in para 74 that, “Right from the 1950 Constitution Bench judgment of this Court in the case of Charanjit Lal Chowdhury v. Union of India and Others (1950) SCC 833, the courts have accepted the legal position that presumption is always in favour of constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. It is an established position that it must be presumed that legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.”
It is worth noting that the Bench notes in para 207 that, “As per Section 108A of the Original Waqf Act, prior to the coming into force of the impugned Act, the provisions of the Original Waqf Act were to have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Original Waqf Act. It can also be seen that the said provision was inserted for the first time by the amendment dated 29th October 2013 which was brought into effect from 1st November 2013.”
Quite significantly, it would be instructive to note that the Bench then hastens to add in para 208 noting that, “It can thus be seen that in the Original Waqf Act, Section 108A was not in the statute book. It had only been brought in the statute book for the first time by Act 27 of 2013 with effect from 1st November 2013. It can thus be seen that the provisions of Section 108A were in existence only for a short period of around 11 years. In the Original Waqf Act, the said provision did not exist from 1995 till 2013. As the legislature is competent to bring any provision in the statute book, it is also competent to delete the said provision from the statute book. We, therefore, prima facie do not find any substance in the challenge in that regard.”
Most significantly, the Bench encapsulates in para 209 what constitutes the cornerstone of this notable judgment postulating precisely that, “In the totality of the circumstances, we do not find that any case is made out to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected. However, while doing so, in order to protect the interest of all the parties and balance the equities during pendency of this batch of matters, we issue the following directions:
(i) The following part of clause (r) of Section 3 of the Amended Waqf Act “any person showing or demonstrating that he is professing Islam for at least five years” shall stand stayed until the rules are framed by the State Government for providing a mechanism for determining the question as to whether a person has been practicing Islam for at least five years or not;
(ii) The proviso to sub-section (2) of Section 3C of the Amended Waqf Act, which reads thus:
“Provided that such property shall not be treated as waqf property till the designated officer submits his report.”
and the provisions of sub-sections (3) and (4) of Section 3C of the Amended Waqf Act, which read thus:
“(3) In case the designated officer determines the property to be a Government property, he shall make necessary corrections in revenue records and submit a report in this regard to the State Government.
(4) The State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate correction in the records.”
shall stand stayed;
(iii) It is directed that unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the Tribunal and subject to further orders by the High Court, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the Board shall be affected. However, upon commencement of an inquiry under Section 3C of the Amended Waqf Act till the final determination by the Tribunal under Section 83 of the Amended Waqf Act, subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties;
(iv) It is directed that insofar as Central Waqf Council constituted under Section 9 of the Amended Waqf Act is concerned, it shall not consist of more than 4 non-Muslim members out of 22. Equally, insofar as the Board constituted under Section 14 of the Amended Waqf Act is concerned, it is directed that it shall not consist of more than 3 non-Muslim members out of 11;
(v) Though, we are not inclined to stay the provision of Section 23 of the Amended Waqf Act, we direct that as far as possible, an effort should be made to appoint the Chief Executive Officer of the Board who is the ex-officio Secretary from amongst the Muslim community; and
(vi) We clarify that what has been observed by us hereinabove is upon our prima facie consideration for the purpose of examining as to whether an interim stay should be granted or not to the impugned Act or the provision(s) contained therein. The observations made hereinabove will not prevent the parties from making submissions with regard to the validity of the provisions contained in the Amended Waqf Act or any of the provision(s) therein.”
Finally, the Bench then concludes by acknowledging with grace in para 210 that, “We place on record our deep appreciation for Shri Kapil Sibal, Dr. Rajeev Dhavan, Dr. A.M. Singhvi, Shri C.U. Singh and Shri Huzefa Ahmadi, learned Senior Counsel appearing on behalf of the petitioners. We also place on record our deep appreciation for Shri Tushar Mehta, learned Solicitor General of India appearing on behalf of the Union of India as well as Shri Rakesh Dwivedi, Shri Ranjit Kumar, Shri Gopal Sankaranarayanan and Shri Guru Krishna Kumar, learned Senior Counsel appearing for the contesting parties. Most importantly, we place on record our appreciation for all the learned counsel for ably assisting the learned Senior Counsel in advancing their submissions.”
Sanjeev Sirohi