Until the matter is finally heard, which may take several years, the management of Waqfs will be severely impeded and several properties which should rightfully belong to the Waqf Boards will be wasted.
Syed Akmal Razvi
THE Supreme Court’s interim order on the Waqf (Amendment) Act, 2025 is replete with significant errors. Its decision to stay certain provisions of the Act while upholding others has raised concerns about the potential impact on the Muslim community’s rights and the management of Waqf properties.
In its 128-page judgment delivered on September 15, the Supreme Court stayed key provisions, including the powers granted to district collectors to determine Waqf property titles, citing a violation of the separation of powers doctrine. However, the court did not stay the provision allowing non-Muslims to be appointed as Chief Executive Officers of Waqf Boards, instead suggesting that efforts should be made to appoint Muslims to the position whenever possible.
Here I would dissect the order and the court’s nuanced approach, balancing religious autonomy with administrative oversight which may have far-reaching consequences for the Muslim community.
The court has ordered that:
(i) Any person showing or demonstrating that he is professing Islam for at least five years before making a waqf 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) Regarding disputed properties claimed to be belonging to the government the Act provided that designated officer of the government will conduct enquiry and submit his report and it further provided that the property until the dispute is settled shall not be treated as Waqf property and 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 and the state government shall, on receipt of the report of the designated officer, direct the Board to make appropriate correction in the records has been stayed
(iii) The Supreme Court directed that unless the issue with regard to title of the waqf property 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.
(iv) The court directed that the Central Waqf Council shall not consist of more than 4 non-Muslim members out of 22.
(v) The court directed that 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;
(vi) The court directed 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
Even though the court has made it clear 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 provisions 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.
However, a closer look at the reasons given by the court for refusing stay or granting partial stays shows several errors in the application of the constitutional scheme and law.
The court identified the following three issues for consideration at the interim stage:
(i) Challenge to Section 3(r) of the Amended Waqf Act, which de-recognises ‘Waqf by User’ prospectively;
(ii) Challenge to special provision for Government Properties under Section 3C of the Amended Waqf Act; and
(iii) Changes in the composition of the Central Waqf Council and State Waqf Board under Section 9 and 14 of the Amended Waqf Act, respectively which theoretically could have resulted in the non-Muslims forming a majority.
The petitioners’ contention was that “The stated objective for the amendment is that it has been enacted to “protect” Waqfs, but the real intention behind it is to take away or expropriate the Waqf properties.
Until the amendment of 2025, the registration of a Waqf was not mandatory even though under the Mussalman Waqf Act, 1923, and later on the Waqf Act 1995 which was continued till 2013, there was provision for registration of a Waqf, however, no consequences were provided for non-compliance except the removal of the Mutawalli.
Prior to 1954, registration of a “Waqf by User” was not necessary. However, by the amendment the provision of “Waqf by User” has been deleted and Section 3(r) of the amendment act now requires the existing “Waqf by User” registered on or before the commencement of the amendment Act alone to be valid.
The requirement that one has to “show or demonstrate” that he is practicing Islam for at least five years for the declaration of any movable or immovable property as Waqf is totally discriminatory and arbitrary. No such provision is there insofar as other religions are concerned. Such a requirement is in clear violation of Right to Equality and Right to Practice and Profess Religion.
The amendments to provisions contained in Sections 9, 14 and 23 of the Original Waqf Act have a direct impact on the Muslim community as majority of the members in the Waqf Council and Waqf Boards could be non-Muslims and they would be permitted to interfere in the affairs of the Waqfs, thereby directly affecting the rights of the Muslims to independently manage the affairs of their religious practice.
Under Section 23 of the Amended Waqf Act, the Chief Executive Officer of the Board was earlier required to be a Muslim but now he will now have to be a person not below the rank of joint secretary to the state government and not necessarily be a Muslim. Not only that the mode of constituting the Board has now been changed from election to nomination by the government.
The Waqf Act 1995, provided for an elaborate procedure for conducting a survey of the auqaf. However, by Section 6(c) of the amended act, the said procedure has been deleted.
Section 36 of the Amended Waqf Act registration of every Waqf with the Board has been made mandatory. It has been further provided that on or after the commencement of the amended waqf act, no Waqf shall be created without execution of the Waqf Deed. Under the Islamic law, a Waqf can be created even by an oral gift. This provision adversely affects the rights of practicing Muslims to create a Waqf by an oral gift.
The procedure for registration under the amended act provides that on receipt of an application for registration, the Board shall forward the application to the collector to inquire into the genuineness and validity of the application and in case, the collector, in his report, mentions that the property, wholly or in part, is “in dispute” or is a “government property”, the Waqf shall not be registered unless the dispute is decided by a competent court.
Under Sub-sections (7) and (7A) of Section 36 of the Amended Waqf Act, a Waqf which is not registered has been rendered remediless inasmuch as it bars any suit, appeal or other legal proceedings for enforcement of any right of the Waqf. This is a “wholesale takeaway” of the entire community’s rights since malafide disputes can be raised to deny registration and then by the time the dispute is settled the waqif would no longer be alive.
A survey, which is a prerequisite for giving effect to the provisions of the amended Act, has not been carried out. The government itself admitted that the survey was conducted only in five out of the 28 states.
Under Section 107 of the Waqf Act 1995, the provisions of the Limitation Act 1963 were not applicable for any suit for possession of immovable property comprised in any Waqf or for possession of any interest in such property. However, the amended act has made the provisions of the Limitation Act, 1963 applicable to all waqf properties.
The government’s contention was that the amendments to the provision with regard to “Waqf by User” is prospective in nature. All Waqfs which are registered as on 8th April 2025, shall stand protected except in those cases where the Waqf property, in full or in part, is in dispute or which is a government property.
The government argued that Sajjada nashin is different from Mutawalli. According to the government it is Sajjadanashin who undertakes religious activities concerned with the Waqf. However, Mutawallis are only concerned with the administrative activities of the Waqf, and their functions have no bearing on the religious activities. Therefore, the amendments are not violative of any of the rights guaranteed under Article 25 and 26 of the Constitution i.e. freedom to practice and profess one’s religion and freedom to manage the religious affairs.
The government argued that the contention regarding provisions for removal of Mutawallis is concerned, it cannot be said to be discriminatory. Similar provisions can be found in various acts concerning removal of a Mathadipati (head or leader of a monastery) in the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987
Surprisingly the government first made a comparison with the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 to argue that removal of Muthawalli is akin to removal of Mathadipati and when confronted with the fact that only Hindus are permitted to be members of almost all Hindu Endowments and Limitation Act 1963 is not applicable to some of the Hindu Endowments, argued that the Constitution has a federal structure. Therefore, there can be no comparison of a parliamentary law with certain state laws on Hindu religious endowments.
All laws passed by the government can be challenged and declared unconstitutional only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted and/or that such an enactment is in contravention of any of the fundamental rights of the Constitution or any other provision of the Constitution and lastly on the ground of manifest arbitrariness.
The Supreme Court traced the legislative history of Waqf enactments and relied on the statement of objects and reasons to erroneously deny the interim stay of several provisions.
Mussalman Wakf Act, 1923 was the first enactment regarding the Waqfs. The statement of Objects and Reasons of the said Act, reads:
“….. For several years passed, there has been a growing feeling amongst the Mahomedan community, throughout the country that the numerous endowments which have been or are being made daily by pious and public spirited Mahomedans are being wasted or systematically misappropriated by those into whose hands the trust may have come in the course of time. Instances of such misuse of trust property are unfortunately so very common that a wakf endowment has now come to be regarded by the public as only a clever device to tie up property in order to defeat creditors and generally to evade the law under the cloak of a plausible dedication to the Almighty. In some case, the mutawallis are persons who are utterly unfit to carry on the administration of wakf ……. It is believed that the feeling is unanimous that some step should be taken in order that incompetent and unscrupulous mutawallis may be checked in their career of waste and mismanagement, and that the endowments themselves may be appropriated to the purposes for which they had been originally dedicated. ….. There are numerous wakf properties all over the country unknown to the public which the mutawallis are treating their own private property and dealing with in any way they think fit or necessary. It, therefore, seems that there should be a system of compulsory registration requiring a mutawalli to notify to some responsible officer not merely about the fact of the wakf, of which he is the mutawalli, but also the nature and extent and other incidents of the endowment. …… …. Lastly, there appears to be a general consensus of opinion amongst the Mahomedans throughout the country that there should be some responsible officer, who may go about and find for himself whether the various wakf properties scattered throughout the country are being properly managed or not. ……….”
The Supreme Court erroneously noticed that the wakf endowment came to be regarded by the public as a “clever device” to tie up property in order to defeat creditors and generally to evade the law under the cloak of a plausible dedication to the Almighty to reject the interim prayer to stay the provision regarding deletion of Waqf by User.
The Supreme Court failed to notice that Under Section 4 of the 1954 Act, the state government was required to appoint a Commissioner of Wakfs who was tasked with conducting an inquiry and submit a report in respect of wakfs existing at the date of the commencement of the said Act, giving the particulars as prescribed under the provisions of the said Act. The state government under sub-section (6) of Section 4 of the 1954 Act was also empowered to direct the commissioner to make a second or subsequent survey of wakf properties in the state.
The failure of the commissioner of Waqfs who was a responsible government servant is the failure of the State. It is settled position of law that the State cannot hide behind its failure to the disadvantage of a citizen. The State failed in its duty to conduct an enquiry and report the waqfs and now that failure is being used to deny the beneficiaries the benefits of Waqf by user.
The observation by the Supreme Court that “Therefore, the possibility of any person not belonging to Muslim community, converting to the Islamic religion only in order to take benefit of the protection of Waqf Act so as to defeat creditors and evade the law under the cloak of a plausible dedication cannot be ruled out.” is surprising to say the least.
It is settled position of law that all creditors who have been prejudiced by the alienation made with intent to defraud them, may get the gift set aside by approaching the courts.
It is a settled position of law as provided by Section 53 of the Transfer of Property Act which treats such transfers as fraudulent transfers:
53. Fraudulent transfer. — (1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors.
The Supreme Court observed that while considering the challenge to the validity of a statutory provision, the court is entitled to take into consideration the matters of common knowledge, matters of common report and the history of the times.
However the Supreme Court while passing the interim order has without any plausible reason held that “it will, therefore, not be out of place to mention that many persons, who, under the relevant personal laws, are not entitled to marry with a second woman during the subsistence of their first marriage and who are liable to be prosecuted for the offence of bigamy in such a case, in order to avoid the rigour of criminal offence, convert themselves into Islamic religion”.
This has been held in complete ignorance of the judgement of the Supreme Court in Smt. Sarla Mudgal, President, Kalyani & … vs Union of India & Ors (AIR 1995 SUPREME COURT 1531) where it was held that conversion to Islam does not invalidate the previous marriage and the person converting would be guilty of bigamy.
The Supreme Court alluded to the fraudulent second marriage example to support its prima facie view that the provision which requires a person practicing Islam for 5 years for creating a waqf cannot be said to be arbitrary.
It is definitely arbitrary since it interferes with the constitutionally guaranteed right to life and dignity to enjoy the property as one deems fit including his right to enjoy it in the manner that he deems fit.
The Supreme Court held that only an “owner” of a property can create a waqf. It further, relied on the key Qur’anic verses, specifically in Surah Al Baqarah, to hold that the very concept of creation of waqf is based on charity i.e., to spend one’s own wealth in the way of Allah. There is no doubt that a charity cannot be done by a person of a property or money owned by a third person or a property owned by the government.
However, the Supreme Court erred in not noting that the settlement of property as Waqf is subject to the proof that he was the owner and in case of dispute an elaborate legal procedure is prescribed to find the actual ownership. The waqf would stand if it is proved that the waqif was the owner and would fail if he is not the owner.
The Supreme Court denied interim stay on the compulsory registration of Waqf properties on the erroneous ground that in all the enactments, right from 1923, there was a requirement of registration of waqfs. “We are, therefore, of the view that if Mutawallis for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered,” the court said. It ignored the fact that the law required that the State was also mandated to carry out the survey and register all the waqf properties and they cannot now take advantage of their failure.
It was brought to the notice of the Supreme Court that no waqf deeds would be available in many cases. However, the Supreme court held that under the Original Waqf Act, for filing an application for registration, the accompaniment of a copy of the waqf deed was not mandatory. Under the Waqf Act 1995, it was provided that if no such deed has been executed or a copy thereof cannot be obtained, the application could have been made by giving full particulars as far as they are known to the applicant with regard to the origin, nature and objects of the waqf.
The Supreme Court erroneously held that if for 30 long years, the Mutawallis had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary. They ignored the responsibility of the State to carry out the survey and prepare the list of Awqaf.
The Supreme Court erroneously took the view that if the legislature, in 2025, finds that on account of the concept of “Waqf by User”, huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary. Apart from the Andhra Pradesh case decided by the Supreme Court in respect of 1,654 acres and 32 guntas of land out of more than nine lakh acres of land belonging to the waqf there was no data to justify the sweeping statement that government properties have been encroached by Waqf.
The Supreme Court refused to stay Section 3D i.e. declaration of protected monument or protected area as waqf to be void. Any declaration or notification issued under this Act or under any previous Act in respect of waqf properties shall be void, if such property was a protected monument or protected area under the Ancient Monuments Preservation Act, 1904 (7 of 1904) or the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), at the time of such declaration or notification.”
The Supreme Court held that the Ancient Monuments Preservation Act, 1904 and the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (collectively referred to as ‘Ancient Monuments Acts’) have been enacted for the avowed purpose of protection of ancient monuments. Such monuments are a vital part of the cultural heritage of our country and therefore need to be protected.
The court relied on the statements of Archaeological Survey of India (ASI) that Mutawallis were not permitting its officials to take steps for the protection and preservation of these monuments. It was also stated that, on account of notification(s) issued under the Ancient Monuments Acts and the notification(s) issued under the various Waqf Acts, the ASI was finding it difficult to carry out its function inasmuch as the Mutawallis were parallelly running the affairs.
The Supreme Court held that the religious practice is protected under Section 5(6) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Sub-section (6) of Section 5 of the said Act permits citizens to continue with their customary religious practices even if such an area is a protected monument. However, the Supreme Court ignored the fact that the management of the religious affairs requires the supervision of the Waqf Board and unless the said site is declared as a Waqf the Waqf Board would have no jurisdiction to supervise the affairs and therefore the right to religious practise would be a mirage.
The Supreme Court rightly held that upon a plain reading of Section 9 of the Amended Waqf Act, it, prima facie, appears that insofar as the council is concerned, 12 out of 22 members can be non-Muslims. Similarly, insofar as the Board under Section 14 of the Amended Waqf Act is concerned, prima facie, it appears that seven out of 11 members can be non-Muslims.
The Supreme Court did not go into the question regarding inclusion of non-Muslim members amounting to interference in religious practices, at the stage of passing the interim order.
However, in order to avoid any ambiguity, it issued a direction that the Central Waqf Council should not have non-Muslim members exceeding four in number and three non-Muslim members insofar as Board is concerned.
The Supreme Court in one breath held that there should be parity with regard to suits instituted for the enforcement of rights of waqf on par with other trusts governed by other similar statutes. However, it ignored the fact that only Hindus are permitted to be member of several Hindu endowments.
The Supreme Court while denying the interim stay on the deletion of the clause making Limitation Act 1963 not applicable to Waqf properties held that the Limitation Act, 1963, which is applicable to any other proceedings with regard to any claim or interest pertaining to immovable property, and which is now being made applicable to the claim or interest pertaining to immovable property comprised in a waqf can be said to be arbitrary. However, it did not take notice that several Hindu endowments have a clause which exempts them from the Limitation Act, 1963.
Until the matter is finally heard, which may take several years, the management of Waqfs will be severely impeded and several properties which should rightfully belong to the Waqf Boards will be wasted.
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Syed Akmal Razvi is a lawyer practising in the Karnataka High Court. The views expressed here are the author’s own, and Clarion India does not necessarily subscribe to them. He can be contacted at akmalrazvi@yahoo.com
