Non-Muslims allowed in Muslim Waqf boards as SC stays some provisions in Waqf Amendment Act

The Supreme Court on Monday chose not to stay the provision of the Waqf (Amendment) Act, 2025 that allows non-Muslims to be part of the Muslim-run Waqf Boards and Councils, yet it restricted their number to four in the Central Waqf Council and three in state waqf boards, while a similar inclusion of members of other faiths is non-existing in other religious boards, even as it stayed key controversial provisions in the Act.

The bench led by Chief Justice B.R. Gavai and Justice A.G. Masih stated that while the overall constitutionality of the Act would be presumed, certain clauses required protection, therefore the court stayed the requirement that a person must be a practitioner of Islam for five years to dedicate property as Waqf, while it also suspended the clause that vested district collectors with the power to adjudicate disputes regarding whether a property is Waqf or government land.

The court also suspended the clause that vested district collectors with the power to adjudicate disputes regarding whether a property is Waqf or government land. The bench stayed the provisions allowing the Government to derecognise a Waqf land during the pendency of a decision by the Government officer on the dispute of encroachment. SC said allowing the Collector to decide the dispute is against the separation of powers.

Till the question of title is decided by the Tribunal or the Court, the disputed Waqf land will not be affected. At the same time, the Court said that no third-party rights should be created on such lands till the dispute is decided.

The court observed that the provision on Islamic practice would remain suspended until state governments framed rules to determine who qualifies as a practitioner of Islam. 

In its interim directions, the apex court also refused to impose a stay on the registration requirements that were already part of the Waqf framework, saying that such registration had always existed under law.

The Union government had defended the Act by contending that Waqf was neither a fundamental right nor an essential part of Islam, however several petitioners including opposition leaders, non-governmental organisations and activists challenged the amendment on grounds that it infringed upon Article 26 of the Constitution, which guarantees citizens the freedom to manage religious affairs, and their arguments gained weight in the context of the provisions now kept in abeyance by the court.

The Waqf (Amendment) Act, 2025 was introduced in the Lok Sabha on April 2 and was passed the same day with 288 members of the BJP and its allies supporting it against 232 opposing votes, and on April 3 the Rajya Sabha cleared it after a 14-hour debate with a narrower margin of 128 in favour and 95 against, after which the Bill received presidential assent on April 5.

The passage of the legislation prompted widespread criticism across the political spectrum and among civil society, and protests escalated in several states, most notably leading to violence in Murshidabad in West Bengal, which added urgency to the petitions filed before the court and culminated in the interim order that balanced constitutional presumptions with judicial caution.

The bench had reserved its decision on May 22 after three days of hearings, and by refusing to stay the statute in its entirety while keeping the most contentious clauses on hold, the Supreme Court has signalled that while Parliament’s authority to legislate on Waqf remains intact, its provisions will be subject to closer constitutional scrutiny in the coming months.

The key points of the order are as follows:

Five-year practice requirement stayed

1. The Court stayed the operation of Section 3(1)(r), which imposed a condition that a person must have been a practitioner of Islam for at least five years to create a waqf.
2. The bench observed that the requirement was not in itself arbitrary, as it sought to prevent the misuse of the waqf law by persons converting to Islam merely to evade creditors or the application of other laws.
3. However, in the absence of a mechanism framed by State Governments to determine whether a person had been practising Islam for the prescribed period, the provision was held to be vulnerable to arbitrary application.
4. The condition has therefore been stayed until appropriate rules are formulated by the States.

Government power to de-recognise waqf land curtailed

1. The Court stayed provisions of Section 3C(2), (3) and (4), which permitted a designated officer of the Government, such as the Collector, to determine whether a property claimed as waqf was in fact government land under encroachment, and to direct corrections in revenue records.
2. The bench held that permitting the executive to decide such disputes offended the doctrine of separation of powers, as questions of title could only be determined by a judicial body such as a Tribunal or a Court.
3. It was directed that until the Tribunal under Section 83, or a higher judicial forum, delivers a final determination, the status of the waqf property will not be affected.
4. The Court further clarified that no third-party rights may be created in respect of such disputed properties until the matter reaches finality.

Non-Muslim representation is capped in Waqf bodies

1. The Court directed that in the Central Waqf Council under Section 9, the number of non-Muslim members must not exceed four out of twenty.
2. Similarly, in the State Waqf Boards under Section 14, the number of non-Muslim members must not exceed three out of eleven.
3. These directions came despite the Centre’s earlier assurance to the Court that non-Muslims would not be appointed to these bodies pending adjudication of the challenges. 

CEO appointment provision upheld with advisory

1. The bench declined to stay Section 23, which permits the appointment of a non-Muslim as Chief Executive Officer of a State Waqf Board.
2. However, the Court directed that, as far as possible, efforts should be made to appoint a Muslim person to the post, given the religious nature of the institution.

Registration requirement not interfered with

1. The Court did not disturb the provision mandating registration of waqfs, observing that the requirement was not novel, having been in place between 1995 and 2013.
2. Other contentious provisions—including the abolition of waqf-by-user, restrictions on creation of waqfs over Scheduled Areas and protected monuments, the stipulation that only Muslims can create waqfs, and the application of the Limitation Act to waqf matters—were also left undisturbed at this stage.

Prima facie nature of directions

The Court clarified that its observations were only prima facie in nature, and that all parties would be at liberty to advance their full arguments on the constitutional validity of the provisions during the final hearing.

Background and challenges

1. The petitions before the Court challenged wide-ranging amendments enacted by Parliament earlier this year, which renamed the statute as the Unified Waqf Management, Empowerment, Efficiency and Development Act.
2. One major grievance is the abolition of waqf-by-user, a long-standing principle under which land or property continuously used for a religious or charitable purpose could be treated as a waqf, even without formal declaration or registration. Petitioners contend that its removal would strip many mosques, graveyards and dargahs of recognition.
3. Another concern is the dilution of waqf-alal-aulad (family waqf), which allowed Muslims to dedicate property for the benefit of their descendants, subject to eventual charitable use. Critics argue that limiting this undermines both religious practice and property rights.
4. Petitioners have also challenged provisions barring the creation of waqfs over Scheduled Areas and Archaeological Survey of India–protected monuments, restrictions that they argue disproportionately target Muslim endowments.
5. The requirement of five years’ Islamic practice before creating a waqf, inclusion of non-Muslim members in governing bodies, application of limitation laws to waqf disputes, and the cap of only two women members in councils and boards are further issues flagged as discriminatory and intrusive.

The challenges have been mounted by a broad spectrum of parties cutting across political and ideological lines, including AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Jamiat Ulema-i-Hind, Samastha Kerala Jamiatul Ulema, the All India Muslim Personal Law Board, and MPs from the RJD, SP, TMC and DMK, along with several individuals and civil society organisations.

In contrast, BJP-led States such as Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana and Maharashtra filed intervention applications in support of the law, with Kerala also recently joining the list of States challenging the amendments.

During earlier hearings in April, the Centre had given an undertaking before the Court that non-Muslims would not be appointed to the Central Waqf Council or State Waqf Boards while the matter was pending, and further assured that no waqf, including those recognised by usage or notification, would be de-notified or have its character altered during the pendency of proceedings.