Chief Justice BR Gavai said the court could stay a legislation only in the rarest of the rare cases. The court noted that "no case was made to stay the provisions of the entire statute".
Published Sep 15, 2025 | 2:43 PM ⚊ Updated Sep 15, 2025 | 2:43 PM
The Supreme Court of India. (iStock)
Synopsis: The Bench of Chief Justice BR Gavai and Justice Augustine George Masih stayed the stipulation that an individual should be a practitioner of Islam for at least five years. The court said the provision could lead to arbitrariness unless state governments framed rules to provide a mechanism.
Refusing to issue a blanket stay order on the Waqf (Amendment) Act, 2025, the Supreme Court paused certain provisions of the Act on Monday, 15 September.
While issuing the interim order, the Supreme Court noted that the presumption favoured the constitutionality of a law passed by the legislature.
The Bench of Chief Justice BR Gavai and Justice Augustine George Masih stayed the stipulation that an individual should be a practitioner of Islam for at least five years. The court said the provision could lead to arbitrariness unless state governments framed rules to provide a mechanism.
The court also stayed the provisions empowering the government to recognise a Waqf land during the pendency of decision by the government officer on the dispute of encroachment. Allowing the Collector to decide the dispute was against the separation of powers, Live Law quoted from the stay order.
“Permitting the Collector to determine the rights of the properties is against the doctrine of separation of powers as the Executive can’t be permitted to determine the rights of citizens,” Chief Justice Gavai said while issuing the order.
Further, the court directed that the non-Muslim members cannot exceed four in the Central Waqf Council, and three in state Waqf boards. While refusing to stay the provision that allowed a non-Muslim to be the CEO of state Waqf boards, the court said a Muslim person should be appointed as far as possible.
“It is directed that insofar as the Central Waqf Council constituted under Section 9 of the Amended Waqf Act is concerned, it shall not consist of more than 4 non- Muslim members out of 22. Equally, insofar as the Board constituted under Section 14 of the Amended Waqf Act is concerned, it is directed that it shall not consist of more than 3 non-Muslim members out of 11,” the order said.
The court did not interfere with other contentious provisions, such as the condition of registration, abolition of ‘Waqf-by-user, bar on creating Waqfs over Scheduled Areas and protected monuments, condition that only Muslims can create Waqfs, application of the Limited Act to the Waqf Act, etc.
On the condition of registration, the court refused to intervene, saying it was not new and was in existence from 1995 till 2013.
Chief Justice Gavai said the court could stay a legislation only in the rarest of the rare cases. The court noted that “no case was made to stay the provisions of the entire statute”.
The ordered was passed on petitions by AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, Samastha Kerala Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, TMC MP Mahua Moitra, Indian Union Muslim League, All India Muslim Personal Law Board, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, Communist Party of India, DMK, and others.
Earlier, the court had reserved its order in May after hearing the parties over three days.
