How the Supreme Court ruling on Waqf act puts properties in administrative limbo

The Supreme Court’s interim ruling on Monday on a batch of petitions challenging the Waqf (Amendment) Act, 2025, stayed some of the law’s most draconian provisions But, by neglecting the cumulative effect of the amendments as a whole, it has left the foundational pillars of waqf administration vulnerable to a deeply flawed piece of legislation.

The judgment, while attempting a balancing act, ultimately creates a state of administrative limbo for waqf properties – endowments under Islamic law dedicated to a religious, educational or charitable cause.

The constitutional questions at the heart of this challenge are yet to be answered. Until they are, the verdict will serve as a judicial stamp for the “land jihad” conspiracy theory peddled by Hindutva forces, claiming that Muslims use the instrument of waqf to usurp land belonging to the public and to Hindus.

A legislative overhaul

To understand the verdict’s implications, one must first grasp the seismic shifts introduced by the 2025 Amendment Act. As the petitioners argued, the law radically unsettles the existing system by introducing several alarming changes.

It grants sweeping new powers to the Collector, an executive officer of the state, to effectively determine the ownership of properties, creating a glaring conflict of interest in cases where the government itself is a claimant.

The act introduced an expansive and vague definition of “government property”, which, when read with new provisions, creates a presumption that any “disputed” property belongs to the government retrospectively.

It also abolished the category of “waqf by user” – a centuries-old, judicially recognised Islamic principle whereby properties used for religious purposes over a long period are deemed waqf, even without a formal deed.

Furthermore, it altered the composition of the Central Waqf Council and State Waqf Boards to allow for a potential non-Muslim majority, a stark contrast to the governance structures of religious endowments of other communities. It was this comprehensive legislative assault that prompted petitioners to seek a stay on the act’s implementation as a whole.

A judgment of half-measures

The Supreme Court, acknowledging the gravity of some of these provisions, did offer crucial interim relief.

First, the court has stayed the provision requiring a person to prove they have been practising Islam for at least five years to create a waqf.

Secondly, it put a hold on the immediate consequences of an inquiry under the new Section 3C: it stayed the provisions that would have allowed a government-designated officer to unilaterally alter revenue records based on his own report, declaring a waqf property as government land. It directed that no waqf can be dispossessed, nor its records changed, until the matter is fully adjudicated by the Waqf Tribunal.

Thirdly, the court capped the number of non-Muslim members on the central council at four and on state boards at three.

These stays prevent an immediate, executive-led expropriation of properties. However, they fail to address the fundamental flaws that remain embedded in the act.

Problems that remain

First, while the consequences of a Collector’s inquiry into ownership of a property are stayed, the process is not. A designated officer can still initiate an inquiry into any waqf property, casting a cloud of uncertainty over its status.

The judgment then creates a paradoxical situation: it protects the waqf from dispossession but simultaneously freezes its assets by barring the creation of any third-party rights (such as leases or development agreements) until the dispute is finally resolved.

This could lead to administrative paralysis, preventing a waqf from generating income for its charitable objectives while it is forced into a protracted legal battle initiated by the government itself.

Second, the court upheld the prospective deletion of “waqf by user”. Even though the court has clarified that the order will not come in the way of the final challenge to the constitutionality of the provisions of the act, it has made several concerning observations on the deletion of the “waqf by user” category.

The court has reasoned that if mutawallis – managers and caretakes of waqfs – failed to register for over a century, they cannot complain about the deletion of the provision now.

This argument is misplaced because a waqf is held to be a divine endowment dedicated to charity, and its legal and religious character is not dependent on the actions of its temporary manager. To the contrary, identifying and surveying waqf by user properties was a statutory obligation on the states.

But according to the statistics of the Joint Parliamentary Committee on The Waqf (Amendment) Bill that were shown to the court, surveys had been conducted in only five out of 28 states and four out of eight Union territories. The biggest states by area – Gujarat, Jharkhand, Rajasthan, Uttar Pradesh (Sunni) and Uttarakhand – had not reported any surveys.

Deleting the provision altogether effectively punishes the entire community of beneficiaries and nullifies a pious endowment due to administrative neglect of the state governments, which is a fundamentally unjust and disproportionate outcome.

The very essence of “waqf by user” is that its status is established through long, uninterrupted dedication to religious use, often without a formal deed or a single date of creation. These properties, such as ancient masjids, dargahs and cemeteries, have existed for centuries as community property. The court’s decision to emphasise the failure to register overlooks this historical reality.

While the court correctly notes that the previous law allowed registration even without a deed, this only strengthens the argument that the solution should have been to enforce or streamline that existing process – not to use non-compliance as a pretext to abolish the entire legal category.

The court seems to conflate registration requirements with registration being a precondition to create the waqf itself, contrary to the settled legal position that a lack of registration does not invalidate the status of the property as a waqf.

Failing to draw a link

Even more surprising is the fact that the court does not analyse how the stated object of the act – to prevent mismanagement of endowments – has any reasonable link to the religious composition of the board. During the hearings, the government had justified the measure by stating that the waqf properties owned by Muslims are routinely in conflict with “other communities”.

It is wrong to portray waqf disputes, which are among individual parties, mostly with mutawallis, as disputes between communities. Second, merely having a property contested by parties belonging to different religious communities is still no reason to establish a right of non-Muslims to have a seat on the state-level administrative board.

Any maladministration can be properly dealt with by the state government. In fact, section 99 of the Waqf Act allows the board to be fully taken over by the state government after due inquiries.

The premise for introducing non-Muslim members is rather the repeated insinuation that Muslims cannot be trusted with waqf administration. The court has vindicated this trope by mediating a compromise to accept four members in the council and three members in the board though the petitioners had at length argued that even one is too many. This, they said, constituted an intrusion into the right of minorities to administer their own institutions.

Today, at a time when the Muslim community is facing repeated threats on its dignity, institutions and property, the most affected will be the most marginalised who depend on madarsas, community parks, hospitals and graveyards – all of which are waqf.

The interim reliefs are welcome bandages, but the deep wounds inflicted by the Amendment Act remain.

Faizan Ahmad is an advocate practicing at the Supreme Court of India and former Weidenfeld-Hoffmann Scholar at the University of Oxford. He writes on Indian constitutionalism, minority rights and discrimination law.