New Delhi: A 15 September 2025 Supreme Court order on the constitutionality of the government’s modification of a law that tightens its hold on Muslim charitable endowments, or waqfs, must be read not only for what it stayed, but also for what it allowed to stand. 

Refusing to impose a blanket stay, the bench of Chief Justice B R Gavai and Justice A G Masih cited the high bar of “presumption of constitutionality”. Yet, the ruling is more than a case-specific compromise. 

It reflects the clearest expression of a jurisprudence defined by executive deference.

This approach, which has crystallised over recent years (here, here and here), sees the Court yield considerable ground to Parliament’s understanding of a perceived socio-legal ‘mischief.’ 

Within this framework, the Court refrains from questioning the policy itself, the ‘what,’ and confines its scrutiny to the mechanism, the ‘how.’ Even then, intervention is reserved for breaches of foundational constitutional principles, such as the separation of powers.

The presidential assent to the Waqf (Amendment) Act 2025 in April sparked an immediate constitutional storm. 

Critics and civil society groups swiftly denounced its provisions, portraying the law as a direct blow to minority rights and religious freedom. As one of us previously argued in April 2025, the Act strikes at the very core of Dr B R Ambedkar’s vision of a secular republic.

The Supreme Court’s first judicial response to these anxieties  is the perfect archetype of this two-step judicial philosophy.

The Waqf Order As Archetype

First, the Court shows profound deference to the legislature’s diagnosis of the issue. The bench’s analysis of the Act’s most controversial provision, the prospective deletion of “Waqf by User,” is telling. 

The Court fully adopts the union government’s narrative, not as a mere legal submission, but as a historical fact. The judgment traces the menace of systematically misappropriated endowments and encroachment back 102 years to the 1923 Mussalman Wakf Act. 

It then lays the blame for this “menace” squarely on the waqf institutions themselves, noting that if Mutawallis “for a period of 102 years could not get the waqf registered... they cannot claim that they be allowed to continue” (para 147). This is a powerful choice. 

The Court accepts the legislative policy that Waqf by User is a problem to be “cured,” based on a long history of legislative anxiety. 

It even upholds the intent behind the five-year practicing Muslim rule, finding it not arbitrary as it addresses the historical aspect of waqf being a “clever device... to evade the law”, a phenomenon the Court linked to “common knowledge” of individuals converting to Islam to commit bigamy.

Second, having ceded the ‘what’ (policy) to the legislature, the Court confines its intervention to the ‘how’ (mechanism). It stays only those provisions that are procedurally or structurally unconstitutional. 

The court stayed section 3C, which empowered a district collector to determine property titles and unilaterally make necessary corrections in revenue records, holding that this was a prima facie breach of the principle of separation of powers. 

It also put a stay on the proviso to section 3C(2), which stripped a property of its waqf status before an inquiry was complete, deeming it “prima facie arbitrary.” 

Similarly, the Court temporarily halted the operation of the ‘five-year’ rule, not on the ground that the ‘faith test’ was inherently discriminatory, but because the legislature had, as yet, failed to provide any mechanism or procedural framework through which it could be ascertained. 

This approach enables the Court to sidestep a substantive critique, even though external legal analysis has argued that the rule lacks a ‘rational nexus’ to its stated aim of preventing fraud, which could be more effectively addressed through enhanced documentation requirements.

This intervention on process, combined with broad deference on policy, is the core of the Court’s line of reasoning.

A Pattern Of Deference: Recent Parallels

This judicial temporality is not an isolated event. It is part of a consistent pattern seen in other major, politically contentious cases. The most potent parallel is the challenge to the Chief Election Commissioner (CEC) Appointment Act 2023 .

In March 2023, in Anoop Baranwal, a Constitution Bench intervened to create a neutral appointment committee (Prime Minister, the Leader of the Opposition, and the Chief Justice of India), to advise the president on ECI appointments, explicitly stating this was to “insulate” the process from “executive interference”. 

In flagrant violation of the letter and spirit of that order, Parliament passed the Act in December 2023, removing the CJI and replacing the position with a Union Cabinet Minister, giving the executive a 2-1 majority.

When this new Act was challenged, the Supreme Court refused to grant any interim order. This refusal, which allowed the new executive-dominated panel to make appointments just before the 2024 general elections, is the apex of legislative deference. 

The Court declined to intervene even when a binding precedent of its own was legislatively set aside. The Bench reasoned that an interim order, with general elections approaching, might trigger “chaos and a virtual constitutional breakdown.” That caution, however, came at a significant cost: it weakened the independence of one of the Republic’s most vital institutions.

A similar judicial restraint appeared in the challenges to the new criminal codes. In May 2024, the Court refused to entertain PILs questioning the validity of the new codes. Despite arguments that the laws were passed “without any parliamentary debate” while over 140 opposition MPs were suspended, the court showed no appetite for intervening in a legislative scrutiny.

Result Of A Restrained Court

The Waqf judgment, read alongside the CEC and Criminal Code cases, confirms a narrative. The Supreme Court is defining its temporal role as minimalist and post-facto. 

It is moving away from the ‘political question doctrine’ where it avoids contentious issues, and toward what can be called the doctrine of ‘political issue deference,’ where it accepts the legislature’s (and by extension, the executive’s) framing of a problem and its solution, as long as the solution is procedurally plausible.

This judicial restraint, as a philosophy, argues that judges must limit their own power and defer to elected branches. The danger, as critics of this philosophy have long pointed out, is that judicial restraint can perpetuate injustice.

In the Waqf order, this deference meant the Court accepted the government’s ‘menace’ narrative to validate the abolition of Waqf by User, a centuries-old sui generis principle of religious and property law. 

In the CEC case, it meant the Court allowed a partisan and non-neutral mechanism to be re-established. 

The judicial temporality is clear: the Court will police the clear-cut mechanics of the Constitution, but it is no longer in the business of second-guessing the will of the executive.

(Deepanshu Mohan is professor and dean, O P  Jindal Global University, and a visiting professor at the London School of Economics and visiting fellow, University of Oxford. Aman Chain is a senior research assistant with the Centre for New Economics Studies, O P Jindal Global University.)

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