SC ruling on Waqf Act : 'This is a win; draconian parts stayed' | Interview

In this episode of Capital Beat, The Federal spoke to Supreme Court advocate Anas Tanwir on the court’s interim order pausing key provisions of the Waqf (Amendment) Act. He breaks down the stay, its significance, and the road ahead in the ongoing constitutional challenge.

What does today’s interim order mean for you as a lawyer in the case? Is this a victory?

This feels like a victory—an interim one. The court began by noting that courts intervene only in the rarest of rare cases because a statute carries a presumption of constitutionality. Yet it intervened here. Provisions like the five-year “practicing Muslim” requirement and excessive powers to the collector were clearly arbitrary. The most draconian parts that could have altered the course of Waqf administration in India have been stayed. We expected more on some counts, and, as lawyers, we must accept that we may not have convinced the court fully there. Overall, it is a good outcome.

Where did the order fall short of your expectations? What remains unresolved?

The matter is sub judice, so I will be careful. There is concern, especially within the Muslim community, that the waqf by user has not been stayed. Viewed in isolation, that may worry some. But the Act has no retrospective effect on existing waqf; and for future waqf, regulation and proper registration with deeds are welcome if the process is not made a hurdle. Even for an old waqf, any change of nature or dispossession must be through courts—up to the High Court, which is a constitutional court. There will be individual battles, but we have faith in the courts.

Implementation has been a challenge in other matters. Without detailed instructions, could there be ground-level violations despite the stay?

This mechanism is different. There is a rule of law. If the Supreme Court has stayed provisions or curtailed executive powers, officers must comply. Non-compliance would invite contempt. I do not believe any officer will risk that. Where powers are curtailed, they cannot be exercised.

Does this order restore balance for minorities and offer relief after protests over property protections?

It certainly provides relief and restores confidence. There have been moments of disappointment for the community, but we have also seen strong orders on mob lynching, hate speech, and even demolition cases. This order is careful and balanced. We may call it a victory only because the stay comes despite the presumption in favour of the statute. The court deserves credit for a balanced approach that upholds the rule of law.

Could the court’s view on curbing the arbitrary powers of collectors have wider implications beyond waqf?

The order addresses waqf, but the Supreme Court directions have nationwide ramifications. Wherever excessive executive power intrudes on fundamental rights, courts have balanced it. We are governed by the Constitution and the rule of law. Executive power cannot curtail individual or community rights.

Can you explain, one by one, the key provisions the court has paused and why they matter?

On the five-year “practicing Muslim” requirement: the Act required only someone who has practiced Islam for at least five years to declare a waqf. There is no constitutional, objective mechanism to determine who is a “practicing” adherent of any faith. Religion is personal; the State cannot decide who is a better or worse believer. The court has stayed this.

On non-Muslim membership caps: the Solicitor General, Tushar Mehta, suggested limits of three and four non-Muslim members for State Waqf Boards and the Central Waqf Council, respectively. The text allowed far higher numbers—potentially a non-Muslim near-majority. The court capped it at not more than three for boards and not more than four for the council, aligning with that assurance. We still believe waqf administration should be by the community itself, just as other religious institutions have faith-specific frameworks. That argument will be pressed at the final hearing.

On the collector’s powers: the court has curtailed sweeping authority given to collectors to act as final arbiters of title and to stall registration by terming property as government land. Such adjudication belongs to tribunals and courts; separation of powers cannot be breached. While an inquiry proceeds, the property will not cease to be waqf, and no third-party rights can be created.

The court noted a presumption of constitutionality and did not stay the entire Act. How do you view the final challenge ahead?

The presumption weighs more at the interim stage. For final adjudication on constitutionality, everything is open. Our task was harder for the interim stay; it becomes comparatively easier when arguing the Act’s validity on merits.

Is this a setback to a majoritarian push, or simply a constitutional correction?

This is not Muslims versus non-Muslims. It is a constitutional question. In this first battle, the government has suffered a setback because there is a stay despite the presumption favouring statutes. Going forward, we will seek to persuade the court that more provisions are unconstitutional.

What political narrative do you foresee after this order, especially with polls in the offing?

I am speaking as a petitioner’s lawyer, so I will not comment on politics. Naturally, the manner in which this law was introduced and celebrated has met with a judicial check, which may have ramifications. That is for political analysts to assess.

There are many stakeholders claiming credit—lawyers, parties, and protesters. How do you see it?

Over 140 parties appeared. Many have a legitimate claim to this success. People should celebrate. Often, we do not acknowledge victories and only demand more. This is a moment to recognise the work put in by counsel—Kapil Sibal, CU Singh, Muzaffar Ahmed, Sanjay Hegde, Dr Rajeev Dhavan, MR Shamshad, and many others—along with parties I represented, including two Congress MPs, and the petition led by Asaduddin Owaisi, among others. The judgement itself is titled as a constitutional challenge to the Waqf (Amendment) Act, 2025. It was a collective effort.

The content above has been transcribed using a fine-tuned AI model. To ensure accuracy, quality, and editorial integrity, we employ a Human-In-The-Loop (HITL) process. While AI assists in creating the initial draft, our experienced editorial team carefully reviews, edits, and refines the content before publication. At The Federal, we combine the efficiency of AI with the expertise of human editors to deliver reliable and insightful journalism.