Paromita Das
New Delhi, 16th September: Few issues in Bharat carry as much historical and emotional weight as the governance of Waqf properties. These endowments, rooted in centuries of religious and charitable traditions, have long required careful regulation. Over the decades, Parliament has attempted to streamline Waqf management, but every amendment has sparked legal and constitutional debates.
On Monday, the Supreme Court entered this complex terrain once again. In its interim order on the Waqf (Amendment) Act, 2025, a bench led by Chief Justice BR Gavai and Justice AG Masih struck a careful balance—preserving the overall validity of the law while pausing specific provisions that raised serious constitutional concerns. The decision illustrates not only the judiciary’s restraint but also its vigilance in safeguarding both individual rights and institutional integrity.
Constitutional Presumption and Judicial Prudence
At the heart of the order lies a crucial principle: laws passed by Parliament are presumed constitutional unless proven otherwise. Chief Justice Gavai reminded that staying an entire statute is an extreme measure, justified only in the rarest of circumstances. The petitions challenging the 2025 Act sought to strike it down wholesale. Yet the Court was clear—the broader law stands, but some contested sections must be scrutinized more closely.
This nuanced approach highlights the judiciary’s reluctance to override legislative authority while ensuring that no individual rights are compromised pending a final decision.
Property Rights and the Collector’s Authority
Among the most contentious provisions was Section 3C, which allowed district Collectors and designated officers to decide ownership claims over Waqf properties. Critics argued this blurred the separation of powers by transferring judicial functions to administrative hands.
The Court agreed, noting the dangers of such an arrangement. Until the Waqf Tribunal—the body legally empowered to adjudicate disputes—rules on ownership, no third-party rights can be created. Just as importantly, Waqf institutions cannot be dispossessed until adjudication is final. This safeguard ensures that property disputes remain within judicial forums rather than administrative offices, preserving both due process and community trust.
Faith and Eligibility: The Five-Year Rule
Another provision the Court stayed was Section 3(r), which required a person to be practicing Islam for at least five years before creating a Waqf. On paper, the clause sought to ensure sincerity and continuity. In practice, however, it lacked a mechanism to determine compliance, raising the risk of arbitrary exclusions.
By keeping this rule inoperative until clear regulations are framed, the Court ensured continuity in Waqf declarations while leaving space for Parliament or the executive to bring clarity. This approach balances the need for authenticity with the risk of discrimination.
Board Composition and Representation
Representation was another flashpoint. The 2025 Act introduced a provision allowing up to four non-Muslims on Waqf Boards and Councils, a move critics said undermined the community-led nature of these institutions.
The Court’s response was measured: Boards cannot have more than three non-Muslim members, while Councils can include up to four in total. Moreover, the ex-officio officer under Section 23 must be a Muslim. This compromise allows limited external oversight without diluting the faith-based administration central to Waqf institutions.
A Journey Through Legislative History
In its deliberations, the bench referred to the long history of Waqf legislation, beginning with the 1923 Act. Over a century, successive amendments have sought to adapt Waqf governance to changing social and administrative realities. The 2025 amendment was no different—it aimed to improve transparency, streamline property management, and widen participation.
Yet history shows that every such reform must navigate a delicate intersection of religious freedom, property rights, and constitutional safeguards. The Court’s interim order acknowledges this legacy, ensuring reforms move forward without trampling on core principles.
Selective Stay, Broader Law Intact
What emerges is a model of judicial restraint. Instead of suspending the law wholesale, the Supreme Court selectively stayed provisions that posed immediate risks. The broader framework remains functional, respecting Parliament’s legislative will. At the same time, vulnerable clauses have been paused until a full hearing settles their constitutionality.
This careful calibration reassures all stakeholders: Parliament that its authority is respected, petitioners that their concerns are heard, and the public that rights will not be casually infringed.
A Lesson in Judicial Balance
The Court’s order demonstrates why judicial restraint is often the judiciary’s greatest strength. By avoiding sweeping interventions and focusing only on specific provisions, the bench has sent a strong message—democratic institutions work best when they check each other, not when one dominates.
The ruling also underscores the need for Parliament to draft laws with clarity, anticipating how provisions might be tested against constitutional standards. For the Waqf (Amendment) Act, some clauses aimed at reform may have unintentionally crossed lines. The interim stay offers lawmakers a chance to revisit and refine them.
The Road Ahead
The Supreme Court’s interim order on the Waqf (Amendment) Act, 2025, is neither a victory nor a defeat for any side—it is a reminder that in a constitutional democracy, every law must pass the test of fairness, proportionality, and balance.
By keeping most of the Act intact while staying contentious provisions, the Court has preserved continuity in Waqf administration while preventing potential harm. The final hearings will determine whether the challenged sections can be salvaged through regulation or must be struck down entirely.
In the meantime, the order stands as an example of the judiciary at its best—restrained yet protective, pragmatic yet principled. For a nation as diverse as Bharat, where law, faith, and rights often collide, such balance is not just desirable, it is essential.
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