Supreme Court’s Stance on ‘Waqf by User’ Raises Concerns Over New Law

The Supreme Court's recent inclination to uphold the original concept of "waqf by user" has emerged as a significant point of concern for the central government, according to senior government sources. The Centre fears that such a position could potentially undermine key provisions of the newly enacted Waqf (Amendment) Act, 2025. A robust defence of the law is expected from the government when proceedings resume before the apex court on Thursday.

On Wednesday, the Supreme Court proposed a directive that would prevent the de-notification of properties classified as waqf, including those under the "waqf by user" category. The Centre, however, expressed reservations over the move, urging the court to allow a detailed hearing before issuing any such interim order.

The 2025 amendment to the Waqf Act, which received Presidential assent on April 5, stipulates that “waqf by user” properties registered on or before the commencement of the Act will continue to be recognised as waqf, unless the property in question is disputed or belongs to the government.

During the hearing, the Supreme Court sought further clarity from the government on this clause. The bench observed that many mosques constructed since the 14th century lack formal sale or registration deeds, raising questions about the feasibility of mandating such documentation. The court also asked how such properties would be treated if the government were to assert ownership.

Senior advocate Kapil Sibal, representing the petitioners, contended that the new legislation effectively abolishes the concept of "waqf by user" by insisting on documentation, thereby threatening the status of several religious properties. Another petitioner, advocate RK Dhawan, highlighted the historical and cultural significance of preserving the "waqf by user" framework.

The bench acknowledged the potential for widespread legal complications if the concept were to be removed, and asked the government to submit a detailed response outlining the rationale for the changes introduced in the amendment.

Trinamool Congress MP Mahua Moitra, one of the petitioners in the case, revealed that the court is contemplating an interim order stating: “The existing properties declared as Waqfs should not be de-notified as Waqfs, whether they are by waqf-by-user or waqf by deed.”

On the other side of the debate, advocate Vishnu Shankar Jain challenged the constitutionality of “waqf by user,” calling it a “draconian concept” and pointing out that no similar provision exists for Hindu temples. He argued that the amendment serves to protect citizens from what he termed as the arbitrary authority of Waqf Boards.

The Waqf (Amendment) Act, 2025, passed amidst vigorous debate, was cleared in the Lok Sabha with 288 votes in favour and 232 against, and later secured approval in the Rajya Sabha with 128 votes to 95. To date, 72 petitions have been filed challenging various aspects of the law, with prominent petitioners including AIMIM chief Asaduddin Owaisi, the All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, the DMK, and Congress MPs Imran Pratapgarhi and Mohammad Jawed.

As the matter continues to unfold in the Supreme Court, all eyes remain on the Centre’s response and the broader constitutional implications of the court’s forthcoming decision.