NEW DELHI: The Supreme Court on Monday stayed a few of the key provision of the recently passed Waqf (Amendment) Act, but held the constitutionality of the law.A bench of CJI BR Gavai and justice Augustine George Masih, in its 128-page interim order said, “Presumption is always in favour of constitutionality of a statute and intervention (can be done) only in the rarest of rare cases.”“We do not find that any case is made to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected,” it added.The orders comes after a flurry of PILs were submitted in the apex court challenging the amended law which was notified by the Centre on April 8 after receiving President Droupadi Murmu’s assent on April 5.The Waqf (Amendment) Bill, 2025 itself had cleared the Lok Sabha on April 3 and the Rajya Sabha a day later, setting the stage for the current legal challenge.Provisions which were stayed by the top courtIn order to “protect the interest of parties” and “balancing the equities”, the top court stayed some of the provisions of the law. This includes:
- The apex court put a hold on a clause that only those practising Islam for the last five years could create Waqf.
- “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,” the bench said.
- “Since no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practising Islam for at least five years or not, such a provision cannot be given effect to immediately,” it added.
- It further stayed a provision which said a property should not be treated as “waqf property till the designated officer submits his report”.
- In addition, another provision stating, in case the designated officer determines the property to be a government property, he should make necessary corrections in revenue records and submit a report to the state government, was also stayed.
What it directed the Central Waqf Council
- The bench directed the Central Waqf Council not to have more than four non-Muslim members in the total composition of 20 besides asking state waqf boards to have not more than three such members in the total of 11.
- Till the final determination about the title of a disputed property by the tribunal and subject to further orders of the high court in an appeal, the bench held, no third-party rights would be created.
What it did not stay
- The bench did not stay Section 23 (appointment of chief executive officer and his term of office and other conditions of service) of the amended law.
- It, however, directed the authorities “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 the Muslim community.
- The bench clarified its directions were prima facie and interim in nature, and would not prevent the petitioners or the government from advancing full arguments on the constitutional validity of the law during the final hearing.
- On registration of waqf, it said if mutawallis (caretaker of waqf) have chosen not to get it registered for 30 long years, then they couldn’t be heard to say the provision which now required the application to be accompanied by a copy of the waqf deed was arbitrary
- The verdict underlined courts’ acceptance of the legal position of presumption always being in favour of constitutionality of an enactment and the burden being on the person who “attacks it” to show a clear transgression of the constitutional principles.
- The legislative intent was to prevent misuse of waqf provisions and safeguard public property, it said.
- Referring to the precedents, the court said, “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.”
- “Since the menace of mismanagement of the wakf properties was noticed by legislature, an enactment was found to be necessary as early as in the year 1923,” it added.
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