Key Highlights From Supreme Court's Interim Order In WAQF And SG Tushar Mehta's Arguments

New Delhi: The Supreme Court on Monday refused to put the entire Waqf law on hold but stayed the operation of key provisions, including the clause requiring a person to have practised Islam for five years to create a WAQF.

Representing the Centre, Solicitor General Tushar Mehta submitted that the present proceedings were in the nature of a Public Interest Litigation and the legislative competence of the Parliament to enact the impugned Act was not disputed. He had submitted that by virtue of the amendment in the definition of “Waqf” under Section 3(r) of the Original Waqf Act, only a person practising Islam for at least five years and having ownership of such property can create a WAQF. "Since in view of the amendment to Section 3(r), non-Muslims cannot create a waqf, the provision under Section 104 of the Original Waqf Act enabling non-Muslims to create a waqf was deleted as a consequence in order to avoid conflicting provisions under the Act," he said.

Without ruling out the possibility of a non-Muslim converting to Islam to take benefit of the protection of the Waqf Act, the Supreme Court bench comprising Chief Justice of India BR Gavai and Justice AG Masih said, "Prima facie, we are of the view that such a provision cannot be said to be arbitrary or discriminatory.... As early as in 1923, the legislature had noticed that it was common that a Waqf endowment had come to be regarded by the public as only a “clever device” to tie up property in order to defeat creditors and generally to evade the law under the cloak of a plausible dedication to the Almighty. Therefore, the possibility of any person not belonging to Muslim community, converting to the Islamic religion only in order to take benefit of the protection of Waqf Act so as to defeat creditors and evade the law under the cloak of a plausible dedication cannot be ruled out."

With no mechanism in place to ascertain if a person has been practising Islam for five years, the court said, "...Such a provision cannot be given effect to immediately. We are, therefore, of the considered view that unless the rules are made by the Central Government by exercising its rule-making power under Section 109 of the Amended Waqf Act, 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."

The Solicitor General also submitted that the amendment to the provision with regard to “Waqf by User” was prospective in nature. He submitted that Section 36 of the Original Waqf Act required every WAQF created before or after the commencement of the said Act to be registered. "...If Mutawallis for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered," he said. 

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To this, the court said, “We are of the view that if... the Mutawallis had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary. Further, if the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the impugned Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary... if the legislature, in 2025, finds that on account of the concept of “Waqf by User”, huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary.” The SC said that after noticing certain instances of misuse, if the legislature found that the concept of “Waqf by User” had to be abolished and that too prospectively, the same could not prima facie be said to be arbitrary.

With respect to the argument qua inclusion of non-Muslims in the Waqf Council, the Solicitor General submitted that the Central Waqf Council, primarily, had an advisory role and could not be treated as a religious interference. The Solicitor General contended that the number of non-Muslim members insofar as the Central Waqf Council is concerned cannot exceed four and insofar as the Board is concerned, cannot exceed three. "The functions being exercised by the Council and the Board are largely secular in nature and their powers and duties are not related to day-today functioning of the waqfs but only with regard to laying down general policy on non-religious/secular activities," he submitted.

Clearing the ambiguity over the issue, the SC said, “We do not wish to go into the question qua inclusion of non-Muslim members amounting to interference in religious practices, at this stage, inasmuch as the learned Solicitor General has made a categorical statement that the number of non-Muslim members in the Council as provided under Section 9 of the Amended Waqf Act would not exceed four and they will not exceed three in the Board as provided under Section 14 of the Amended Waqf Act. However, in order to avoid any ambiguity, we propose to issue a direction that the Central Waqf Council should not have non-Muslim members exceeding four in number and three non-Muslim members insofar as Board is concerned.”