What is ‘Waqf by user’ that SC raised concerns about, Singhvi admits 4 out of 8 lakh properties are under this category: Waqf Amendment Act hearing

On 16th April, the Supreme Court of India began hearing a batch of petitions challenging the constitutional validity of the Waqf (Amendment) Act, 2025. Solicitor General Tushar Mehta appeared for the Union Government, and a three-judge bench comprising Chief Justice of India Sanjiv Khanna, Justice P.V. Sanjay Kumar and Justice K.V. Vishwanathan heard the matter. The petitions were represented by a score of advocates including Senior Advocate Kapil Sibal, Senior Advocate Rajeev Dhawan, Senior Advocate AM. Singhvi, Senior Advocate C.U. Singh and others. Focus on whether SC or HCs should hear the matter The bench was hearing over 70 petitions. There were two threshold questions the court needed to decide on. First, if the Supreme Court should hear the matter or remit it to the High Courts, and second, what exact issues the petitioners wish to argue. CJI: 2 aspects we need answer: Whether we should entertain or send it to HC? Second what are the points you intend to argue. Second question will decide the first issue also.#WaqfAmendmentAct— Bar and Bench (@barandbench) April 16, 2025 Sibal opened his arguments challenging several provisions of the Act on the grounds of violating Article 26 of the Constitution, which gives Indian citizens the right to manage religious affairs. He criticised Section 3R of the Unified Waqf Management Act, asserting that it empowers the state to question a person’s faith by requiring proof of practising Islam for five years in order to create a waqf. Sr Adv Kapil Sibal: Let me broadly address what the challenge is about. Through a parliamentary legislation what is sought to be done is to intervene in an essential and integral part of a faith. I refer to article 26 and many provisions of the act violates article 26 pic.twitter.com/cZ0bhfINXX— Bar and Bench (@barandbench) April 16, 2025 Heated debate over collector’s role and ‘waqf by user’ Sibal further objected to the provisions that allow government officials, particularly collectors, to unilaterally determine if a property is waqf. He claimed that such provisions amount to “a judge in his own cause”. He argued that ‘waqf by user’ is a long-recognised practice and it was upheld in the Ayodhya judgment as well. However, the law now effectively abolishes the provision of ‘waqf by user’. Sibal: now it says… On and from the commencement of the Waqf (Amendment) Act, 2025, no waqf shall be created without execution of a waqf deed.”CJI: what's the problem ? Sibal: There is a concept of waqf by user. Suppose I have a property and I want an orphanage there. What…— Bar and Bench (@barandbench) April 16, 2025 However, CJI Khanna questioned what the problem was in registering the property. He asserted that registration helps to protect genuine claims. Simultaneously, he also acknowledged, “If you undo ‘waqf by user’, then there will be a problem.” The Court queried whether waqfs that have been declared by courts could now be denotified, while raising concerns over the provision. Singhvi argued, if waqf by user is abolished, 4 lakh to 8 lakh properties that have been declared waqf by user will face an uncertain future. CJI pointed out there were reports that Delhi High Court is on waqf land and hinted that the court is concerned about the dubious claims under waqf by user. Sr Adv AM Singhvi: 4 out of 8 lakhs are waqf by user .. imagine this nowCJI: When we were in Delhi HC we were told that the land is a waqf land!! Don't misunderstand us.. we are not saying all waqf by user is wrongly registered.. Singhvi: we have heard parliament is also on…— Bar and Bench (@barandbench) April 16, 2025 Notably, SG Mehta pointed out that it has been mandatory to register waqf properties as per the previous Acts as well. He said, “Registration of waqf was always mandatorily required. Even waqf by user had to go through waqf by registration. In the 1995 Act also it is compulsory.” He pointed out the provision of punishment is only if the person or the Muttawali fails to register the property, even if seen as per the provisions of 1995. What is ‘Waqf by user’ The concept of Waqf by user was first introduced in the 1954 Act. It allowed properties to be considered waqf based on long-term usage for religious or charitable purposes without formal dedication. It was particularly relevant for public properties like graveyards and mosques. In 1995, the concept was expanded leading to the possibility that waqf property would remain waqf even if its usage stopped. The 2013 amendments reinforced the waqf board’s authority to determine and enforce this status, solidifying control over such properties. Inclusion of non-Muslims in Waqf Boards questioned Another major point of contention during the hearing was the new provision that allows non-Muslims to be members of Waqf Boards. Sibal and others argued that it was a violation of religious autonomy. Justice Vishwanathan clarified that ex-officio non-Muslim members were limited, but Sibal claimed, “Even one [non-Muslim] is too many.” The Court questioned SG Mehta, appearing for the Centre, if similar logic should apply to Hindu endowment boards. CJI: so only 2 ex officio members will be Non muslimsSibal: no no.. it says excluding ex officio members..2 is the minimum. All of them have to be Muslim as per article 26 and here only 10 out of 22 are Muslims. Here even one is too many. Justice PV Sanjay Kumar: So 8 are…— Bar and Bench (@barandbench) April 16, 2025 SG Mehta clarified that the Waqf Council is an advisory body. The supervision by non-Muslims is not unprecedented. He, however, agreed to record in an affidavit that apart from two ex-officio members, only two non-Muslims will be part of the Waqf Boards. Notably, Sibal claimed in the court that any number of non-Muslims can be part of the Board according to the amendments enforced by the Act. The issue of registering waqf only if person is Muslim for over five years Wilson and Ahmadi expressed concerns over the provision that allows registration of property as waqf only if the person is Muslim for five years or more. While Wilson claimed that the government provides a “provision period of 5 years for a person to prove that he is a Muslim”, Ahmadi claimed if a person is not following Islamic practices like offering namaz five times a day, he might be deemed a non-Muslim. Interim relief and broader implications While concluding the hearing for the day, CJI Khanna noted that there is a need to balance equities and issued a tentative interim relief stating that properties declared as waqf by court, including waqf by user, will not be denotified. Proceedings by collectors may continue. However, they shall not be given effect to. Furthermore, only Muslims, barring ex-officio members, may be appointed to the board. CJI: so only 2 ex officio members will be Non muslimsSibal: no no.. it says excluding ex officio members..2 is the minimum. All of them have to be Muslim as per article 26 and here only 10 out of 22 are Muslims. Here even one is too many. Justice PV Sanjay Kumar: So 8 are…— Bar and Bench (@barandbench) April 16, 2025 CJI also expressed concerns over the violence that has been happening in Murshidabad. He remarked, “One thing is very disturbing is the violence that is taking place. If the matter is pending here it should not happen.” The matter is scheduled to continue on Thursday at 2 PM.