5-year Islam practice clause put on hold: Supreme Court imposes partial stay on Waqf Act; 3 key provisions stayed

NEW DELHI: The Supreme Court on Monday refused to put the entire Waqf law on hold, citing the "presumption" of constitutionality in its favour, but stayed the operation of key provisions -- including the clause requiring a person to have practised Islam for five years to create a waqf.

However, the top court said, "some sections need some protection." It also directed that, as far as possible, the Chief Executive Officer of the Waqf Board should be a Muslim, but allowed the amendment that permits a non-Muslim to be appointed as CEO.

Here are the three key provisions that SC stayed -

• Five-year practice rule: The court stayed the requirement that a person must have practised Islam for at least five years before creating a waqf. The court noted that, without rules framed by state governments to determine such eligibility, the clause could lead to arbitrariness.

• Non-Muslim representation cap: The court restricted the presence of non-Muslims in Waqf bodies. It ruled that the number of non-Muslim members in the Central Waqf Council cannot exceed four, and imposed similar limits on State Waqf Boards. However, it did not stay the provision allowing a non-Muslim to serve as CEO of a State Waqf Board, though it said a Muslim should be appointed “as far as possible.”

• Encroachment disputes freeze: The court froze the clause empowering the government to derecognise Waqf land while a dispute over encroachment is pending before a government officer. Calling such powers contrary to the separation of powers, the court said that disputed Waqf land will remain protected until title is decided by a tribunal or court, and no third-party rights should be created during this period.

The court further said that a government official’s report on whether a property is valid Waqf land would not change the title of the property without approval from the high court. During this process, the Waqf Board cannot create third-party rights over the disputed property.

A bench of Chief Justice BR Gavai and Justice AG Masih said courts should normally treat laws passed by Parliament as valid and should only grant a stay in very rare cases.

CJI BR Gavai , writing the interim order, said that although the Supreme Court is not issuing a binding direction, it would be appropriate for the Centre not to nominate more than three non-Muslims to the 11-member Central Waqf Council and to ensure that the ex-officio chairperson is from the Muslim community.

On May 22, a bench led by CJI Gavai had reserved interim orders after extensive hearings from both sides.

Earlier, on April 25, the Union ministry of minority affairs submitted a massive 1,332-page affidavit defending the law, urging the court not to grant a “blanket stay” on a statute that carries the presumption of constitutionality because it was enacted by Parliament.

The Centre had notified the amended law on April 8 after receiving President Droupadi Murmu’s assent on April 5. The Waqf (Amendment) Bill, 2025 itself had cleared the Lok Sabha on April 3 and the Rajya Sabha a day later, setting the stage for the current legal challenge.