What is ‘waqf by user’ and why was it flagged by Supreme Court?

Representative image (AI-generated)

NEW DELHI: The Supreme Court on Wednesday questioned the Centre’s move to remove the concept of “waqf by user” from the Waqf Amendment Act, 2025, warning that such a change in the legislation could potentially erase the status of thousands of longstanding religious properties across India. However, the Centre opposed the court’s directive and sought a hearing.
The top court’s bench said, “The properties declared by courts as waqfs should not be de-notified as waqfs, whether they are by waqf-by-user or waqf by deed, while the court is hearing the challenge to the Waqf Amendment Act 2025.”

Supreme Court’s observation

The CJI-led bench asked the Centre how waqf properties established through uninterrupted religious or charitable use — but lacking formal documents – would now be treated. “How will you register such waqfs by user? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also,” the court observed, citing legal precedents that have so far recognised such waqfs.
The court also questioned the exclusivity of waqf board membership, mentioning, “All members of the waqf boards and Central Waqf Council must be Muslims, except ex-officio members,” and asked whether Hindus would be allowed to participate in their own religious trusts, highlighting questions of parity in religious administration.

What is waqf?

A waqf is a permanent dedication of movable or immovable property by a Muslim for religious, pious, or charitable purposes recognised by Islamic law. It is typically managed by a ‘mutawalli’ (caretaker), and cannot be sold or transferred.

What is ‘waqf by user’?

‘Waqf by user’ refers to the practice where a property, such as a mosque, dargah, graveyard, or community kitchen, is treated as waqf not because of a formal written deed, but because it has been consistently and openly used for religious or charitable purposes over a long period.
This concept was legally recognised through court rulings and codified in the Waqf Amendment Act, 2013, passed by the UPA government.
It allowed properties to be recorded as waqf even in the absence of documentary proof, based on community usage and long-standing public acceptance.
The idea was to protect heritage structures that predated modern land registration systems.

The Waqf Amendment Act, 2025, introduced by the NDA government, removed or majorly limited the concept of ‘waqf by user’. It made documentary ownership a requirement, stating that only a “practising Muslim for at least five years” who is the legal owner of a property can declare it as waqf.
The Centre argued that the 2013 law led to “misuse and wrongful classification” of lands — including government or private property — as waqf, often without valid proof.
Critics, however, fear that the amendment could jeopardise “centuries-old Islamic institutions” that lack formal records but have served as religious spaces for generations.
The 2025 law does offer some protection by stating that already “registered” waqf-by-user properties will remain so — unless challenged or identified as government property. But concerns remain over thousands of sites that may be “unregistered or under dispute”.

India has a long legislative history concerning waqf, dating back to British rule:

The Supreme Court has not yet issued a formal order but will resume hearing the matter on April 17. A battery of senior lawyers, including Kapil Sibal, Abhishek Manu Singhvi, and Solicitor General Tushar Mehta, are representing various petitioners and the Union government.