Barring Non-Muslims From Creating Waqfs Not Arbitrary Prima Facie : Supreme Court

The Supreme Court today(September 15) observed that it is not arbitrary if non-Muslim citizens can't donate property to be considered as waqf, as they can still do so by creating a charitable trust.

A bench comprising Chief Justice BR Gavai and Justice AG Masih passed an interim order staying certain provisions of the Waqf (Amendment) Act, 2025, including Section 3(1)(r), which requires a person to be practising Islam for at least five years to dedicate a property as waqf.

However, it refused to stay the deletion of Section 104 from the parent Waqf Act, 1955, on grounds that the arguments made by the petitioners are self-contradictory. It said that on one hand, they argued that waqf is specific to the Islamic religion. But on the other hand, they want a provision allowing non-Muslims to also donate properties to be created as a waqf.

"On one hand, it is the contention of the petitioners that waqf is specific to Islamic religion. If that be so, then the deletion of the provision which permitted the person not professing Islam to give or donate his property for the purpose of waqf cannot be said to be arbitrary inasmuch as even according to petitioners waqf is specific to Islamic religion."

The Court said that, anyway, the non-Muslim citizens can still donate the property to a trust.

"In any case, if such a person desires to donate his property, he can do so by giving or donating it to a trust or creating a trust for any of the purposes which were included in Section 104 of the Original Waqf Act. Further, it appears that the said amendment has been brought to make it consistent with the definition of waqf under Section 3(r) of the Amended Waqf Act, which provides that waqf can be created only by a person showing or demonstrating that he is practicing Islam for at least five years. We, therefore, prima facie do not find the deletion of Section 104 of the Original Waqf Act to be arbitrary."