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The interim order passed by the the three-judge bench of the Supreme Court led by Chief Justice of India, Sanjiv Khanna, on the constitutionality of the Waqf (Amendment) Act, 2025, focusses on two aspects of the amended legislation and imposes a de facto stay on their operationalisation till the next date of hearing fixed on May 5, 2025.

The first condition, as per the recorded assurance of the solicitor general, is that no appointments are to be made under Sections 9 and 14 of the 1995 Waqf Act. These two sections involve appointments to the central Waqf Council and the state waqf boards, whose compositions have been altered by the 2025 amendments; replacing elected members from electoral colleges by nominated members and expanding the scope of nominating multiple non-Muslim members.

Second is that till the next date of hearing, no waqf, including a waqf by user, shall be de-notified, nor will their character or status be changed. This involves amendments like the deletion of the waqf by user principle as well as the reallocation of powers of survey, determination, registration and notification of waqf properties from survey commissioners and state waqf boards to district collectors and the Union government. 

These provisions have been challenged by the petitioners as being violative of Article 26 of the Indian constitution, which confers every religious denomination the fundamental right to establish and maintain religious institutions, manage its own affairs in matters of religion and own as well as administer property in accordance with law. The petitions have also alleged violations of Article 25, which grants the right to freely profess, practice and propagate any religion, Article 14, which guarantees equality before law and Article 15 which prohibits discrimination on grounds of religion.

There are several other aspects and provisions in the lengthy amendment legislation of 2025 whose constitutional validity have been challenged. For instance, the provision that from now on an waqf endowment can only be made by those who are able to demonstrate that they have been practising Muslims for the preceding five years and that no “contrivance” is involved in their endowment, has already drawn widespread criticisms for being outrightly discriminatory towards one religious community. 

The constitutionality of such provisions of the amendment law are expected to be thoroughly debated and resolved in the apex court in the days to come. However, there are several more contentious provisions in the amended law that need a closer look as well. 

Centralised waqf portal and database

There is another serious constitutional issue vis-à-vis the amended legislation related to the principle of federalism, which has received less attention in the debate so far. 

Section 4(vi) of the Waqf (Amendment) Act, 2025, defines “portal and database” as “the waqf asset management system or any other system set by the Central Government for the registration, accounts, audit and any other........

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