Waqf by practising Muslim: SC stays provision for want of rules, but says it is not discriminatory

The Supreme Court on Monday stayed a provision of the Waqf law which provides that only those practising Islam for five years can dedicate a property as Waqf, saying it cannot be put into effect immediately in the absence of rules, but did not find the provision arbitrary or discriminatory.

A bench comprising Chief Justice B R Gavai and Justice Augustine George Masih put on hold a few key provisions of the Waqf (Amendment) Act, 2025, including a clause that only those practising Islam for the last five years could create Waqf, but refused to stay the entire law outlining the presumption of constitutionality in its favour.

The top court dealt with the contention that the condition requiring that a waqf can be created only by a person showing or demonstrating that he is practising Islam for at least five years is totally discriminatory and arbitrary.

"Prima facie, we are of the view that such a provision cannot be said to be arbitrary or discriminatory," it said. "We are, therefore, prima facie of the view that such a provision which requires a person practising Islam for 5 years for creating a waqf cannot be said to be arbitrary. As already discussed hereinabove, it cannot be said that it has no nexus with the object sought to be achieved. "However, we are of the considered view that 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 5 years or not, such a provision cannot be given effect to immediately," the order said. The bench said it was of the considered view that unless the rules are made by the central government, the provision of Section 3(r) of the Amended Waqf Act "requiring a person to show or demonstrate practice of Islam for at least 5 years in order to dedicate a movable or immovable property for the purpose of creating a waqf cannot be given effect to." It also dealt with the validity of another provision which deals with "wrongful declaration of waqf". "It cannot be gainsaid that the property of the Government is a property of the public i.e., the citizens of India. The Government holds the property in trust for its citizens. Any person who has wrongful possession of such property cannot be permitted to claim the same as his own property," it said. It said a provision, by way of which even before an inquiry is conducted by the designated officer as to whether any property is a government property or not and even before the designated officer submits his report to the state government, providing that such a property cannot be treated as waqf property in the interregnum, is, at least, prima facie arbitrary. "If a property is already identified as a waqf property or is declared as waqf property, then without determination of the question as to whether such a property is a government property or not and treating the said property not as a waqf property, in our prima facie view, is arbitrary," it said.

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