The Supreme Court of India, while hearing a batch of petitions challenging the Waqf (Amendment) Act, made strong observations regarding the potential consequences of undoing the long-standing practice of 'waqf by user'.
The court, however, refrained from passing any interim orders at this stage and decided to continue the hearing on Thursday.
A bench led by Chief Justice Sanjiv Khanna was addressing 73 petitions questioning the constitutional validity of the newly passed Waqf (Amendment) Act.
One of the central concerns raised during Wednesday’s hearing was the removal of the ‘waqf by user’ provision, which has historically recognised properties as waqf based on their consistent use for religious or charitable purposes, even in the absence of formal documentation.
The Chief Justice remarked that denotifying such properties could have "huge consequences", particularly for religious structures built centuries ago, which naturally lack sale deeds or registered titles.
The court questioned how such properties, especially mosques constructed between the 14th and 16th centuries, could now be expected to produce legal documentation for registration.
"You still haven’t answered the question. ‘Waqf by user’ will be declared or not? That will be undoing something that’s been established. How will you register in the case of ‘waqf by user’? You can’t say there will be no genuine,” the bench observed.
The bench also raised concerns over the feasibility of complying with the amended law’s requirements in such cases.
It noted that requiring proof of ownership through registered deeds would effectively erase the historical context of such properties, many of which have served religious functions for generations.
The new legislation does include a clause that the changes will not apply to properties under dispute or those situated on government land.
However, the court noted that the Act also contains a provision which allows the collector to conduct an inquiry to determine whether a property is government land. During this period of inquiry, the property in question is not to be treated as waqf, a condition the bench found problematic.
Additionally, the court expressed its reservations about provisions allowing the inclusion of non-Muslims on state waqf boards and the Central Waqf Council. It asked whether the same courtesy would be extended to include Muslims on boards managing Hindu religious endowments.
Solicitor General Tushar Mehta, appearing for the Centre, attempted to defend the law by stating, “There’s a shop, temple of waqf. The Act doesn’t say its usage will stop. It says it won’t get benefit unless we decide it.”
In response, Chief Justice Khanna asked, “What will happen then? Where will rent go? Why have that provision then?” To this, Mehta clarified that the Act does not interfere with the current usage of a property as waqf but only with the entitlement to its benefits until a decision is made.
The Supreme Court made these observations while addressing a series of petitions that have sparked national debate. The changes to the Waqf Act have triggered protests in various parts of the country, particularly in Muslim-majority areas.
In West Bengal’s Murshidabad district, located on the Bangladesh border, protests against the amended Act turned violent, reflecting the unrest it has caused within the community.
The top court has decided to resume hearing the matter on Thursday. It declined to issue interim orders for now, following objections raised by the Solicitor General and several state counsels.
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