Syllabus:
GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Context:
Recently, the Supreme Court refused to stay the entire law but issued an interim order suspending the operation of several provisions of the new Waqf (Amendment) Act, 2025, passed by Parliament in April.
Background
- The Waqf Act, 1995, as amended in 2013, provided the statutory framework established the statutory framework for administering such properties and for establishing State Waqf Boards.
- Parliament passed the Waqf Amendment Act, 2025 in April renaming the Act, ending the concept of Waqf by user for future properties, increasing government control over Waqf management, and adding non-Muslim members to Waqf Boards.
- Several petitioners challenged the law, on the ground that it violated the Muslim community’s fundamental right under Article 26 of the Constitution to manage its own religious affairs.
Provisions Stayed by Supreme Court
• Powers of the District Collector:
- Section 3C: It empowered the District Collector to probe disputed Waqf properties, suspend the Waqf status of such properties during inquiry, and amend revenue and Waqf Board records post-inquiry.
- Court’s Stay: The Court stayed the clauses that suspend Waqf status during inquiry and permit officials to alter revenue or Waqf Board records, calling such powers arbitrary and against separation of powers, while ordering that Waqfs not be dispossessed and no third-party rights created until the Tribunal’s final decision.
• Inclusion of non-Muslims in Waqf boards:
- Petitioners Argument: The new law permits a non-Muslim majority in Waqf Boards and the Central Waqf Council which violates their right to manage their own religious affairs.
- Supreme Court Direction: Court ordered that the Central Waqf Council, which has 22 members, shall not consist of more than four non-Muslim members and State Waqf Boards, with 11 members, shall not have more than three non-Muslim members.
• The practising Islam for 5 years rule:
- Petitioners Argument: The 2025 Act amended the very definition of ‘Waqf’, stating that it could only be created by a “person showing or demonstrating that he is practising Islam for at least five years”.
- Supreme Court Order: The Court stayed this provision until the government frames rules and a mechanism to determine a person’s religious practice over five years is framed.
Provisions not stayed by the Supreme Court
- Doing away with ‘Waqf by use’: Petitioners opposed the scrapping of “Waqf by use,” which recognized long-used land for religious or charitable purposes as Waqf. The government argued that it had been misused for encroachments. The Supreme Court however, refused to stay its prospective abolition.
- Applicability of the Limitation Act: The Supreme Court upheld the removal of the provision in the Waqf Act that exempted Waqf properties from the Limitation Act. This means Waqfs now have a time limit to file lawsuits against encroachments, a change the court observed removes previous discrimination.