I. Challenged and Stayed Provisions of Amended Act:

1. 5-years of practice as a Muslim – Section 3(r):

• Status: STAYED.
• Challenged Aspect: The requirement that a person must “show or demonstrate that he is practicing Islam for at least five years” to create a Waqf.
• Court’s Reasoning: The Court found this provision prima facie not arbitrary or discriminatory, given the historical misuse of Waqf for evading creditors. However, it cannot be given effect immediately because no mechanism or rules have been provided by the Central Government to ascertain or determine this criterion.

2. Government Property Ceases to be Waqf till report – Section 3C (2):

• Status: STAYED.
• Challenged Aspect: This provision states that if a question arises whether a property is government property, “such property shall not be treated as waqf property till the designated officer submits his report”.
• Court’s Reasoning: The Court deemed this provision prima facie not sustainable in law and arbitrary. It strips the Waqf status of a property before any inquiry is conducted or a report is submitted, which is considered arbitrary.

3. Government Property: officer making corrections in revenue records – Section 3C(3) and 3C(4):

• Status: STAYED.
• Challenged Aspect: These provisions allow the designated officer, after determining a property to be government property, to make necessary corrections in revenue records. and Section 3C(4) then directs the State Government to, upon receiving the report, instruct the Board to make appropriate corrections in its records.
• Court’s Reasoning: The Court found these provisions prima facie arbitrary. Entrusting a revenue officer with the determination of property title is seen as infringing the principle of separation of powers. Regarding title determination, the Court held, “it must be performed by a judicial or quasi-judicial authority, such as the Waqf Tribunal under Section 83”.

II. Challenged Provisions with Specific Directions (Not a complete Stay):

1. Composition of Central Waqf Council and State Waqf Boards – Amendments in Sections 9 and 14:

• Status: Not stayed, but specific directions were issued to limit non-Muslim members.
• Challenged Aspect: Petitioners argued that amendments allowed for a majority of non-Muslim members in both the Central Waqf Council (12 out of 22 members) and State Waqf Boards (7 out of 11 members), leading to direct interference in Muslim religious affairs.
• Court’s Reasoning/Direction: While the Court acknowledged the prima facie argument regarding a potential non-Muslim majority, it relied on the Solicitor General’s categorical statement that non-Muslim members would not exceed 4 in the Council and 3 in the Board.
• To avoid ambiguity, the Court directed that the Central Waqf Council shall not consist of more than 4 non-Muslim members (out of 22), and State Waqf Boards shall not consist of more than 3 non-Muslim members (out of 11).

2. Appointment of Chief Executive Officer of the Board – Amendments in Section 23:

• Status: Not stayed, but a direction was issued.
• Challenged Aspect: Petitioners argued that allowing a non-Muslim to be the Chief Executive Officer (CEO) would interfere with the religious affairs of the Muslim community.
• Court’s Reasoning/Direction: The Court found no prima facie case to stay this provision. It reasoned that even if a non-Muslim is appointed CEO, their functions are under the administrative control of the Board, which will comprise a majority of Muslim members (8 out of 11, after the Court’s direction for Section 14). The Executive Officer appointed under Section 38, who has direct control over Waqf, is still required to be a Muslim. As the Court, directed that an endeavour should be made to appoint the Chief Executive Officer from amongst the Muslim community.

III. Challenged but Not Stayed Provisions:

1. Definition of Waqf: Ownership requirement – Part of Section 4(ix)(a) amending Section 3(r):

• Status: NOT STAYED.
• Challenged Aspect: The restriction that only property owned by the dedicator can be Waqf property.
• Court’s Reasoning: The Court found this prima facie not arbitrary, reasoning that charity inherently involves donating one’s own wealth, consistent with Islamic law and the very concept of Waqf.

2. Deletion of “Waqf by User” – Section 4(ix)(b) amending Section 3(r):

• Status: NOT STAYED.
• Challenged Aspect: The deletion of “Waqf by User,” which petitioners argued is a recognized concept in Muslim law and its deletion is arbitrary.
• Court’s Reasoning: The Court found the deletion of “Waqf by User” prima facie not arbitrary. It noted the historical requirement of mandatory registration from 1923 onwards and cited rampant misuse of “Waqf by User” for encroachment of government and private properties. The amendment is prospective in nature.

3. Government Property not deemed Waqf & Officer Inquiry, excluding the proviso – Section 5 amending Section 3C(1) and 3C(2):

• Status: NOT STAYED.
• Challenged Aspect: Section 3C(1) states that government property declared as Waqf shall not be deemed Waqf property. Section 3C(2) allows the State Government to designate an officer to conduct an inquiry to determine if a property is government property.
• Court’s Reasoning: Section 3C(1) is prima facie not arbitrary, as government property belongs to the public (citizens) and cannot be wrongfully claimed as Waqf. Section 3C(2) is also prima facie not arbitrary as it establishes a mechanism for inquiry to determine government ownership.

4. Protected Monument/Area as Waqf to be void – Section 5 amending Section 3D:

• Status: NOT STAYED.
• Challenged Aspect: Petitioners argued this infringes citizens’ rights to religious practices, violating Articles 14, 15, 25, and 26.
• Court’s Reasoning: The Court found no prima facie case to stay this provision. It noted that the Ancient Monuments Acts (1904 and 1958) aim to protect cultural heritage and that Section 3D addresses difficulties faced by the Archaeological Survey of India (ASI) due to Waqf declarations over protected monuments. Religious practices are protected under Section 5(6) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, so no deprivation occurs.

5. Bar on declaration of land in the Scheduled/Tribal Area as Waqf – Section 5 amending Section 3E:

• Status: NOT STAYED.
• Challenged Aspect: Petitioners argued this is a direct attack on religious freedom of Scheduled Tribes practicing Islam, violating Article 15(1), 25 and 26, and has retrospective application.
• Court’s Reasoning: The Court found no prima facie case to stay this provision. It noted that the provision safeguards the interests of marginalized and vulnerable Scheduled Tribes, requiring special protection, especially regarding land ownership. It has a clear nexus with protecting their constitutional rights and cultural identity, aligning with existing statutes and constitutional provisions for tribal areas.

6. Mandatory Registration and Bar for Unregistered Waqfs – Section 21 amending Section 36:

• Status: NOT STAYED.
• Challenged Aspect: Petitioners argued that mandatory registration (especially requiring a Waqf deed) is contrary to Islamic law (oral gift), and Section 36(7A) (Collector stopping registration if property is in dispute/government property) creates a “Catch 22” situation as Section 36(10) bars remedies for unregistered Waqfs.
• Court’s Reasoning: The Court found this prima facie not arbitrary or discriminatory. Mandatory registration has a long legislative history, present in Waqf enactments since 1923, aimed at preventing misuse. The provision for a 6-month grace period for registration and the “sufficient cause” proviso in Section 36(10) ensure ample time and remedy, and it brings parity with other trusts.

7. Deletion of Section 104 – Application of Act to Properties Donated by Non-Muslims – Section 43:

• Status: NOT STAYED.
• Challenged Aspect: Petitioners argued that deleting the provision that allowed non-Muslims to donate property for Waqf support violates Part III of the Constitution.
• Court’s Reasoning: The Court found no prima facie substance in the challenge. It reasoned that if Waqf is specific to Islam (as petitioners contended in other arguments), then restricting its creation to Muslims is logical. Non-Muslims can still create other trusts for charitable purposes. The deletion also aligns with the amended definition of Waqf in Section 3(r), which requires the dedicator to be a practicing Muslim.

8. Section 107 – Application of Limitation Act, 1963 – Section 44:

• Status: NOT STAYED.
• Challenged Aspect: Petitioners argued that making the Limitation Act applicable to Waqf properties, which was previously exempted, is arbitrary and violative of Article 14.
• Court’s Reasoning: The Court found no prima facie case to stay this provision. It reasoned that applying the Limitation Act to Waqf properties removes a previous discrimination and brings parity with other immovable property claims, which is not arbitrary. It aims to reduce litigation and simplify property recovery. The amendment is prospective.

9. Deletion of Section 108 – Special Provision for Evacuee Waqf Properties – Section 45:

• Status: NOT STAYED.
• Challenged Aspect: Petitioners argued that deletion prohibits Waqf from being created out of evacuee properties and, combined with Section 107, would bar proceedings.
• Court’s Reasoning: The Court found no prima facie substance in the challenge. The Administration of Evacuee Property Act, 1950, which Section 108 referred to, has itself been repealed. Therefore, Section 108 became redundant, and its deletion is a logical consequence.

10. Omission of Section 108A (Overriding Effect):

• Status: NOT STAYED.
• Challenged Aspect: Petitioners challenged the deletion of the provision that gave the Waqf Act an overriding effect.
• Court’s Reasoning: The Court found no prima facie substance in the challenge. Section 108A was introduced only in 2013 and existed for a short period. The legislature is competent to both introduce and delete provisions from the statute book.

The Road Ahead