Poonam Sharma
In a major ruling today, the Supreme Court of India declined to suspend Section 3D of the Waqf (Amendment) Act, 2025, nullifying any declaration or notification of a waqf over any property that was a “protected monument” or “protected area” under the Ancient Monuments Preservation Act, 1904, or the Ancient Monuments and Archaeological Sites and Remains Act (AMASR), 1958, at the time of declaration or notification. Live Law
The judgment followed petitions that attacked Section 3D on the basis of it depriving Muslim communities of their religious rights by prohibiting them from using or declaring religious endowments (waqfs) over monuments that are under the protection of the Archaeological Survey of India (ASI).
Live Law
A bench of Chief Justice of India B. R. Gavai and Justice A. G. Masih held that the petitioners had failed to establish a case for the stay of the provision subject to further hearing.
Significantly, the Court referred to Section 5(6) of the AMASR Act, 1958, which permits continuation of customary religious practices even over protected monuments. Therefore, reasoned the Court, even subsequent to the introduction of Section 3D, religious worship could not be completely stifled if such practice is traditional. Live Law Key Legal Provisions & Arguments
Section 3D of the Waqf (Amendment) Act, 2025 states that any declaration or notification of a waqf (under the 2025 Act or under the earlier laws) is invalid if, on the date of the declaration, the concerned property was a protected monument or an area under the Ancient Monuments Preservation Act, 1904, or the AMASR Act, 1958.
Live Law
Petitioners contended that Section 3D would violate Muslims’ right to form waqfs over religious sites, which could also be historic or archaeological sites. It was feared that mosques, cemeteries, tombs, and other religious buildings within ASI protected sites would no longer be treated as waqfs, and therefore fall under the sole regulatory authority of heritage law, which could vitiate the control of the Mutawallis (waqf administrators) and the practice of community endowment.
Live Law
The Provision was justified by the Union Government on the premise that a number of waqf notifications on protected monuments have resulted in hindrance of conservation and preservation work by ASI. Mutawallis in most cases allegedly hindered ASI officials from executing statutory obligations. Section 3D therefore aimed to clarify and avoid contradictions between waqf law and protection of heritage.
Live Law
Reasoning of Supreme Court
The Court noted that religious use is protected by the AMASR Act itself: Section 5(6) of the AMASR Act provides for customary religious uses in protected monuments or sites.
That is, even if a monument is officially protected, the law still permits religious custom which has been practiced.
The existence of this exception discredits the claim that Section 3D would completely prohibit mosque prayers, traditional worship, or religious rituals simply because a location is designated as a protected monument. Live Law Since this protection exists, the Bench concluded that petitioners had failed to establish sufficiently serious harm or urgency warranting a stay of Section 3D forthwith. The petitioners’ argument that performing religious rituals would be withheld was not accepted in its entirety since the legal system already maintains such rituals where traditional. Live Law
Implications
For the conservation of heritage: The move reinforces the powers of ASI and heritage law to prevent monuments or protected areas from being converted or pronounced as waqfs in a manner that would undermine their conservation. It nips any retrograde or continuing pronouncements of such protected buildings as waqf properties in the bud.
For Muslim community religious rights: Although the ruling does not kill all waqf claims on properties with religious use, it marks a limit. Properties already being protected as monuments or officially notified protected areas cannot, as of the date of their protection, be designated as waqfs. But religious practice continuance is still possible under AMASR law.
For legal clarity: The ruling makes it clear that the legislative intent in Section 3D is not to extinguish religious use within protected monuments, but to avoid clashes in management and conservation. Also, it emphasizes that where a law (like AMASR) permits religious use, such use persists even after protection status has been granted.
Critical Views & Unresolved Questions
Others might protest that the “protected monument or protected area” is vaguely defined and that numerous religious properties might have been classified under AMASR with little regard for their waqf history.
The ruling is not yet complete in how to decide cases in which waqf declarations have already been issued over properties subsequently declared protected, or vice versa. Litigation on such cases may now rise to determine what was first in time, the waqf declaration or the protection notice.
Also pending is the question of whether state or central government regulations can influence how “customary religious practice” is interpreted and applied in particular contexts, particularly where there is contest between heritage law and religious governance.
Conclusion
The denial of the Supreme Court of stay of Section 3D of the Waqf (Amendment) Act, 2025, is a turning point in weighing heritage preservation against religious rights.
In holding its decision to the existing provisions in the AMASR Act which allow customary religious practice, the Court has supported the legislature in its action of preventing the protected monuments from being declared waqfs, yet still ensuring religious customs are not unreasonably curtailed.
The judgment clears the way for ASI’s preservation efforts, but also signals that religious endowments must be established and administered with due regard to the heritage status of the property in question.
