'Interim stay violates separation of powers': Centre to SC on Waqf Act

The Centre tells the Supreme Court that it will defend Waqf (Amendment) Act, 2025, saying an interim stay would violate the separation of powers and that the law was passed after thorough debate

The Centre on Friday informed the Supreme Court that it would contest any move to halt, in whole or part, the implementation of the recent Waqf (Amendment) Act, 2025, while they are under judicial review.

 

In its submission, the Centre stated that legal precedent establishes that courts lack the authority to suspend statutory provisions, whether directly or indirectly. "There is a presumption of constitutionality that applies to laws made by Parliament, and an interim stay is against the principle of balance of powers," the Centre said. It added, "The law has been made on the recommendations of a Joint Parliamentary Committee... followed by an extensive debate in both Houses of Parliament."

 

 

It further said that while the Supreme Court may review a law’s constitutionality, issuing an interim injunction at this stage would disrupt "the delicate balance of power between the different branches of the State". 

 

  The Centre also noted that the petitions do not cite individual grievances warranting interim relief.

 

The Supreme Court is hearing petitions challenging new Waqf laws, including mandatory non-Muslim representation and restrictions on donations. Petitioners claim these violate fundamental rights. The court questioned the government, asking whether Muslims would be permitted on Hindu endowment boards under similar circumstances.

 

During the previous hearing, the top court indicated it was weighing an interim stay in light of violent incidents, including reported deaths in Bengal and unrest in Lucknow, linked to the new law. However, the decision was deferred after the government requested additional time to respond.

 

In its response to petitions questioning the Waqf (Amendment) Act, the Centre clarified that the concept of "waqf by user" has only been recognised through official registration since the enactment of the first Waqf Act in 1923, not through verbal declarations. "Hence, the amendment aligns with consistent practice," the Centre argued before the Bench.

 

What is 'waqf by user'?

 

'Waqf by user' refers to properties that are considered waqf due to their longstanding use for religious or charitable purposes, even if no official declaration was made by the original owner.

 

Under the amended Act, properties previously categorised as 'waqf by user' will maintain their waqf status, unless there is a dispute or they are designated a government property. This provision seeks to protect historical designations while limiting future claims.

 

The Ministry of Minority Affairs explained that the amendment is intended to prevent unauthorised or incorrect property claims. However, it continues to safeguard religious and burial sites, such as mosques, dargahs, and graveyards, unless a counterclaim is made. The amended Act also simplifies the waqf registration process by officially recognising only those properties that have been formally declared as waqf, aiming to minimise legal disputes while acknowledging long-standing usage.

 

Supreme Court raises concerns on 'waqf by user' removal

 

Earlier this month, the apex court raised concerns regarding the amendments, particularly the removal of 'waqf by user', the inclusion of non-Muslims in waqf boards, and the role of the Collector in determining the status of waqf on disputed government land. 

 

  Chief Justice of India Sanjiv Khanna emphasised the top court's usual reluctance to stay legislation unless under exceptional circumstances. He said, “We do not stay a legislation normally at this stage of the challenge unless in exceptional circumstances. This appears to be an exception. Our concern is that if waqf-by-user is de-notified, there could be huge consequences.”

 

Inclusion of non-muslims in Waqf Council

 

On the issue of including two non-Muslims among the 22 members of the Waqf Council, the Centre defended the move, describing it as a step towards inclusivity rather than an encroachment on waqf administration.

 

(With agency inputs)