The Supreme Court of India has once again entered into territory that critics say belongs only to Parliament: the domain of lawmaking. On September 14, the apex court stayed several crucial provisions of the Waqf (Amendment) Act, 2025.

This law was passed earlier in the year after Parliament engaged in a marathon debate, stretching over 12 hours in the Lok Sabha and followed by an equally intense 14-hour discussion in the Rajya Sabha. The amendments were designed to bring accountability and transparency into the functioning of Waqf Boards, which remain among the largest landholders in the country after the Indian Railways.

What the Supreme Court Said

Chief Justice BR Gavai, while announcing the stay order, openly admitted that “only in the rarest of rare cases a legislation can be stayed.” Yet, the bench proceeded to do just that. The Court examined the controversial 5-year condition for a Muslim practitioner before creating waqf. It accepted that the condition was not arbitrary, but raised concerns that without a verification system it might be misused. On this ground, the provision was stayed until state governments come up with rules to implement it effectively.

The bench also looked into the burning question of government land being claimed as waqf property. The order made it clear that “permitting the Collector to determine the rights of the properties is against the doctrine of separation of powers as the Executive can’t be permitted to determine the rights of citizens.” This means the government cannot derecognize land claimed as waqf unless a tribunal or higher court decides the matter. Until then, no third-party rights can be created, but the encroacher continues to hold the disputed property.

In addition, the Court placed restrictions on how many non-Muslim members could be included in Waqf Boards and emphasized that wherever possible, the Chief Executive Officer of a Board should be Muslim. The bench explained this as an interim “protective” measure until the constitutional challenge against the law is resolved.

This ruling has triggered sharp concerns. Many observers are asking whether the judiciary is turning into the largest obstacle in the government’s effort to reclaim illegally occupied land and bring greater accountability to Waqf Boards. Let it be remembered that the court has not struck down the entire Act. Instead, it has suspended only selected provisions, citing arbitrariness and the principle of separation of powers. However, this selective stay sets a dangerous precedent: whenever vested interests feel threatened, they can use the courts to halt executive action.

For decades, Waqf Boards have functioned like a parallel land authority, often escaping public scrutiny. They have claimed vast stretches of land, including government property, as “waqf land.” The 2025 amendments were the first serious attempt in years to restore transparency. Yet, this intervention by the judiciary risks diluting the reform process.

Why These Observations Are Problematic

The Court’s legal reasoning may appear sound on the surface, but its real-world impact is troubling. Consider the issue of the Collector’s role. Across India, revenue officers are the first line of authority in any land dispute, whether between individuals, corporations, or even citizens and the government. Why then should waqf-related land disputes suddenly be treated differently? By excluding the executive from this process, the judiciary has made it nearly impossible for the government to defend its land without entering long and costly litigation.

Similarly, regarding the 5-year condition, the Court itself noted that opportunistic conversions to Islam could happen simply to misuse waqf protections. Yet, instead of letting the law operate, the provision was suspended until rules are framed. In other words, the judiciary has declared: “Yes, the Parliament was right in principle, but we will not allow the law to run until we micromanage its rule-making.” This comes across as judicial babysitting of the legislature, undermining the democratic process.

Government Land as Waqf Property? Court’s Stay Strengthens Encroachers

Among the most important safeguards in the Act was a clause preventing disputed government land from being declared waqf property until the matter is resolved. This provision was rooted in common sense: How can government-owned land suddenly become “Allah’s property” just because a Waqf Board claims it?

Yet, the Supreme Court stayed this safeguard. The reasoning? Allowing the Collector to make such a determination violates the doctrine of separation of powers. That means until a tribunal or court passes a final ruling—a process that may take decades—the Waqf Board’s claim remains valid.

This effectively gives encroachers a legal shield. They can sit on disputed government property indefinitely, confident that the court process in India is painfully slow. As critics point out, the decision incentivizes encroachment: occupy land, resist local orders, and drag cases through endless litigation. This is less about protecting rights and more about encouraging land squatters.

Parliament Passes, Judiciary Pauses

The bigger question here is about constitutional propriety. Parliament, after lengthy debate, passed the law. The executive began implementation, citing urgent need to curb misuse. Yet, the judiciary stepped in, not after a full hearing, but through an interim suspension of selected parts. This is not mere interpretation; it is assuming legislative and executive authority.

This pattern is not new. We saw similar judicial intervention with farm laws, the Citizenship Amendment Act, and now waqf reforms. The courts have gradually taken upon themselves the power to decide not just what a law means, but whether it can even function. This is a direct challenge to the balance of powers in a democracy.

When the courts begin to “pause” laws passed by elected representatives, they essentially put themselves above Parliament. That is not what the Constitution ever intended.

Selective Sensitivity

What makes this more troubling is the judiciary’s selective sensitivity. The same courts that often emphasize judicial restraint suddenly act swiftly when issues involve “minority sentiments.” Today, Waqf Boards control more land than several state governments, yet their operations remain largely opaque. The 2025 amendments sought to end questionable practices like “waqf by user,” to prevent declaring heritage monuments and Scheduled Areas as waqf, and to ensure Waqf Boards follow the Limitation Act like everyone else.

Most of these measures were left untouched. But the moment the government tried to stop public land from being swallowed by waqf claims, the judiciary intervened. Why should taxpayer-owned land be treated as less important than the claims of a religious body?

A Dangerous Precedent

The Supreme Court itself has repeatedly said that staying laws must be the “rarest of rare” exception. Ironically, in the case of waqf, it ignored its own warning. If every contested clause of a law can be suspended merely because petitioners oppose it, then Parliament’s power is hollow. Tomorrow, every reform—be it the Uniform Civil Code or temple management laws—could be dragged into the courts, not for a final verdict, but to cause endless delay.

This is the real risk of the September 14 ruling. It sends a message to vested interests: if you cannot stop a law in Parliament, you can stall it in the courts.

The Modi government has taken on the tough challenge of reclaiming India’s land from encroachers and dismantling parallel legal systems. The Waqf (Amendment) Act 2025 was a bold attempt in that direction. By staying vital provisions, the Supreme Court has not only encouraged encroachers but has also weakened Parliament’s authority.

The larger issue at stake is not just waqf property—it is the very principle of separation of powers. If unelected judges continue to act as lawmakers, India risks sliding into what many call a “juristocracy,” where governance is dictated by the judiciary rather than the elected legislature.

The people of India elect their representatives to make laws. The role of the courts is to interpret those laws, not to interfere with them. The sooner this balance is restored, the stronger India’s democracy will be.