Monday's is only an interim order. The final verdict must be fought for – in the courts and on the streets – to defend justice and the Constitution.
Published Sep 15, 2025 | 8:17 PM ⚊ Updated Sep 15, 2025 | 8:17 PM
Waqf Board Representational Image
Synopsis: Modi’s amendment deliberately designed Waqf bodies where Muslims could become minorities. The interim order has only prevented Muslims from becoming an outright minority, but it has still legitimised the unconstitutional idea that non-Muslims can be members of a Muslim religious body.
On the petitions (WP (C) 276/2025) that sought to strike down the Hindutva-driven “Waqf (Amendment) Act, 2025” brought by the Narendra Modi government, the Supreme Court Bench of Chief Justice BR Gavai, also comprising Justice Augustine George Masih, has delivered an interim verdict.
Legal news portals and mainstream media reported it under the headline, “Stay on Key Provisions of the Act.”
But if one carefully reads the detailed reports, a disappointing fact emerges: the Supreme Court has not struck down or even questioned the four most blatantly unconstitutional, Hindutva-inspired provisions of Modi’s amendment:
The most dangerous part of the interim order is that the Supreme Court has accepted the constitutionality of Modi government’s provision mandating compulsory inclusion of non-Muslim members in the Central Waqf Council and state Waqf Boards.
Such provisions have never existed in any Waqf Act or in laws governing other religious institutions. Even today, laws clearly prohibit non-Hindus from being members of Hindu religious bodies like Tirupati or Kashi Vishwanath. Christian and Sikh bodies too have only members of their own faith. Article 26 of the Constitution guarantees that religious communities can administer their own institutions. Any law that denies this right is unconstitutional.
By insisting only on Muslim Waqf bodies to include non-Muslims compulsorily, Modi’s law aimed to bring Muslim institutions under Hindutva control.
Instead of striking down this unconstitutional rule outright, the Supreme Court merely limited the extent: in the 20-member Central Waqf Council, no more than 4 can be non-Muslims, and in state Waqf Boards of 7 members, no more than 3 can be non-Muslims.
Originally, the 2025 Act allowed only 10 out of 22 council members to be Muslims, with the rest potentially non-Muslims – reducing Muslims to a minority in their own Waqf Council. Similarly, in state Waqf Boards of 11 members, only 4 had to be Muslims, while 7 could be government-appointed non-Muslims.
Thus, Modi’s amendment deliberately designed Waqf bodies where Muslims could become minorities. The interim order has only prevented Muslims from becoming an outright minority, but it has still legitimised the unconstitutional idea that non-Muslims can be members of a Muslim religious body.
The Court did not strike down the provision that the Waqf Council CEO could be a non-Muslim; it only “advised” that Muslims should preferably hold the post. Since governments routinely ignore such “advice,” this is a dangerous green signal to Hindutva politics.
Another highly problematic clause in Modi’s amendment required that only Muslims can create a Waqf, and such a Wakif must demonstrate that they have been practicing Islam for at least five years.
This is unconstitutional. In India, any person of any faith can donate property for religious or charitable purposes.
Restricting Waqf only to Muslims violates Article 15 (prohibiting religious discrimination). Further, Article 300 allows every citizen to decide how to use their property. Denying non-Muslims the right to create Waqf violates their fundamental rights.
The Supreme Court merely suspended the “five years of Islamic practice” requirement – not by declaring it unconstitutional, but only until state governments frame rules. In effect, the Court has authorised governments to intrude into the most intimate matters of religious practice, violating Articles 19 and 26. This opens a very dangerous door.
Modi’s amendment also introduced tough conditions for Waqf registration, such as mandating the name and date of the original donor. Failure to provide these could even result in punishment for mutawallis (managers).
Lawyers pointed out that many centuries-old Waqfs have no such records. The Court has not yet struck this down but promised to address it in its final order. Whether it will acknowledge the genuine difficulties remains to be seen.
The Court refused to stay the entire Act, arguing that this is done only in the “rarest of rare” cases. It added that since laws are made by democratically elected governments, courts generally presume them to be constitutional.
While this reasoning is acceptable in normal times, in the case of the Modi government – which has repeatedly acted unconstitutional by professing and implementing Communal Policies and the Acts anti-thetical to the values enshrined in the Constitution – such a presumption amounts to judicial compliance in undermining the Constitution.
The Court did hold that disputes between Waqf institutions and the government cannot be decided by government officers, as this violates the separation of powers.
Such disputes must be decided by tribunals or High Courts, and until then, the Waqf status continues without interference. This is the only truly constitutional and welcome aspect of the interim order.
The Supreme Court’s interim order on the Waqf (Amendment) Act, 2025 is, except for one narrow relief, highly problematic, constitutionally troubling, and supportive of Modi government’s Hindutva politics.
But this is only an interim order. The final verdict must be fought for – in the courts and on the streets – to defend justice and the Constitution.
(Views expressed are personal. Edited by Majnu Babu).
