On September 15, the Supreme Court observed that it is not arbitrary to restrict the creation of waqfs to Muslims, noting that non-Muslims can still dedicate property for charitable purposes through the creation of trusts.
A bench led by Chief Justice B.R. Gavai and Justice A.G. Masih passed an interim order staying certain provisions of the Waqf (Amendment) Act, 2025, including Section 3(1)(r), which requires a person to have practiced Islam for at least five years before dedicating property as waqf.
However, the Court declined to stay the deletion of Section 104 of the Waqf Act, 1955. Addressing the petitioners’ arguments, the Court pointed out an inherent contradiction: while they contended that waqf is religion-specific to Islam, they also sought to allow non-Muslims to dedicate property as waqf. The bench stated:
“If waqf is indeed specific to Islam, then the removal of the provision permitting non-Muslims to donate property for waqf cannot be considered arbitrary.”
The Court clarified that non-Muslims are not left without options. If they wish to dedicate property for charitable or religious causes, they can do so by creating or donating to a charitable trust. The bench also remarked that the 2025 amendment appeared to align with the revised definition of waqf under Section 3(r), which now restricts waqf creation to practicing Muslims of at least five years.
Concluding its interim observations, the Court stated that it does not prima facie find the deletion of Section 104 arbitrary, as alternative legal mechanisms for charitable property transfers remain available.
