The Waqf Interim Judgement is a smokescreen: A (detailed) critique

THE SUPREME COURT’S INTERIM JUDGEMENTon Waqf (Amendment) Act, 2025 pronounced by the Division Bench of Chief Justice of India BR Gavai and Justice Augustine Masih on September 15, 2025 is problematic on almost all counts – issue framing, adjudicatory reasoning, legal interpretation, and the ratio.

Context of the Interim Judgment

Solicitor General Tushar Mehta had contended that only three issues were up for consideration at the interim stage – Section 3(r) (waqf by user), Section 3C (special provision for government properties) and Sections 9 & 14 (changes in the composition of waqf council and board). The contention was disputed by Senior Advocate Kapil Sibal. The Court thereupon agreed to consider all the issues raised by the parties on the question of interim relief (at Para 4). It roughly addressed the following questions: 

1. Is practice of Islam necessary for the creation of waqf? 

2. How would surveys by the designated authorities determine the status of a waqf property?

3. Could non-Muslims be made members of the waqf bodies? 

4. How far should faith determine the appointment of Chief Executive Officer (‘CEO’)? 

5. What should be the status of “waqf by user” under the statutory law?

6. Could tribal Muslims create waqf?

7. Should the Ancient Monuments Act, 1958 affect the waqf law post amendment?

8. Could non-Muslims create waqf?

9. Would the Limitation Act, 1963 be applied over waqf property?

The Stay Order addressed questions 1 to 4 in detail. Questions 5 to 9 did not find space in the conclusion, even though the Court discussed them within the judgment. The most glaring absence being the Court’s omission of “waqf by user” from the conclusion.

The Court’s reasoning in almost all the matters it discussed fell flat. There are two categories of such issues, as already indicated, the ones where the Court went ahead to include them in the conclusion, and the ones where the Court did not. 

I will analyse the Court’s reasoning as it emerges from the first category.

Practice of Islam

On the question of the practice of Islam for a minimum period of five years, the Court referred to the Mussalman Waqf Act, 1923 to argue that it was enacted to prevent mischief where waqf was used as a “clever device” to tie property and defeat creditors (Para 136). The Court took cue from instances where people convert to Islam to marry again while escaping the offence of bigamy (Para 138). It went ahead to read “conversion” as one of the reasons behind the enactment of the 1923 Act. It held the provision valid while suggesting that the Central government make rules to ascertain “practice” of Islam, before the provision could be enforced.