The Supreme Court’s recent judgment on Waqf Amendment Act, 2025, has come as a shot in the arm for the government. The apex court has refused to strike down the enactment, thereby endorsing the constitutionality of the statute and Parliament’s competence to legislate on this concurrent list subject. The two-judge Bench comprising Chief Justice BR Gavai and Justice Augustine G Masih, however, granted interim stay on certain provisions of the Act. This includes Section 3 C (1)-(2) under which collector (revenue officer) had been given power to determine the status of a property as waqf or otherwise. The court found it violated the principle of separation of powers enshrined in the Constitution.

Section 3(r), which required a waqif (settler) to be a practising Muslim for five years, has been stayed until the rules are framed under the statute. The court did not find provision arbitrary per se, citing that people could convert to Islam out of ulterior motives like to marry a woman by escaping bigamy laws applicable to other religion, or escape expropriation of property by creditors by declaring it as waqf.

The apex court proved this rightly by referring to the Statement of Objects and Reasons of the now impugned Mussalman Wakf Act, 1923. It says inter alia: “Instances of such misuse of trust property are unfortunately so common that a waqf endowment has now come to be regarded by the public as only a clever device to tie up the property in order to defeat creditors and generally evade the law under the cloak of a plausible dedication to the Almighty".

As the colonial-era court records would show, waqf properties were frequently embroiled in legal disputes, a few of which even reached the Privy Council in London. These disputes often pertained to sale/purchase and mortgage, wherein the property in question would suddenly be discovered/declared as waqf as to evade expropriation/ possession by the creditor/buyer. In some cases, the heirs would have borrowed money from lenders, by deliberately suppressing the status of the property as waqf, and would disclose the same when the time came to pay off.

A dispute over two bigha (1¼ acre) plot in Machua Bazar, Calcutta (now Kolkata) reached the Privy Council in the 1890s. Ismail Ariff had purchased this plot in 1885 from one Anna Baba Saheb, who had previously purchased the same from the descendants of one Sheikh Khubulla. After the purchase, Ariff was surprised to find that one Mahomed Ghous, a rank outsider, was serving notices........

© News18