In 2025, the Waqf (Amendment) Act triggered one of the most closely watched constitutional challenges before the Supreme Court of India. Although Parliament passed the law and it received presidential assent, its most controversial provisions, especially the removal of waqf by user and expanded powers to question waqf land, were quickly challenged in court.
The Act was not struck down. It was not fully stayed either. Instead, it entered a phase of judicial scrutiny where the law technically remained in force, but under watch.
The Court refused to grant a blanket stay, reiterating the principle that legislation carries a presumption of constitutionality. At the same time, it issued interim directions to maintain the status quo on existing waqf properties and sought detailed responses from the Centre.
In effect, the law stands, but parts of its operation are shaped by ongoing judicial review. The final constitutional verdict is still awaited, making the issue legally active and politically sensitive.
The Supreme Court’s Intervention
During the hearing last year, the CJI-led bench issued a crucial observation. It stated, “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.” This effectively means that no waqf property, whether documented or recognised through long use, should lose its status until the matter is decided.
The court did not stay the Act but insisted on maintaining the status quo. It also recorded the Centre’s assurance that no appointments would be made to Waqf bodies during the pendency of the case.
Solicitor General Tushar Mehta defended the legislation, arguing that there was widespread public concern over vast areas being declared waqf land. Solicitor General Tushar Mehta told the Supreme Court that “waqf by user is not a fundamental right, it is a creature of statute, and what the legislature creates, it can also take away.”
What Is Waqf, And How Big Is It In India?
A waqf is a permanent dedication of movable or immovable property by a Muslim for religious, pious, or charitable purposes recognised by Islamic law. Once declared waqf, the property cannot be sold or transferred. It is managed by a mutawalli (caretaker).
India has one of the largest waqf property networks globally. According to data from the Waqf Assets Management System of India (WAMSI), 30 states and Union Territories, along with 32 Boards, have reported 8.72 lakh waqf properties, covering more than 38 lakh acres.
These include 1,50,516 graveyards, 1,19,200 mosques, over 1.13 lakh shops, nearly 92,505 houses, 1,40,784 agricultural lands, and 33,492 dargahs and mazars. This scale explains why any amendment to the waqf law carries enormous implications.
Understanding ‘Waqf By User’
‘Waqf by user’ refers to properties treated as waqf not because of a written deed, but because they have been continuously and openly used for religious or charitable purposes over a long period. For example, a mosque or graveyard functioning for centuries without formal land records could still be recognised as waqf.
This principle was recognised through court rulings and later codified in the 2013 amendment to waqf law. It aimed to protect heritage structures that predated modern land registration systems. Importantly, 4.02 lakh out of 8.72 lakh properties are classified as “waqf by user.” That means nearly half of all waqf properties fall under this category, making their removal legally explosive.
Why Is ‘Waqf by User’ Considered Controversial?
The Centre argues that the flexibility of waqf by the user opened the door to “misuse and wrongful classification” of lands, including government or private property, as waqf without valid proof. Can a piece of land be claimed as waqf simply because it has been used for religious purposes for decades?
With over 4 lakh properties in this category, the concern is not small. The 2025 amendment now requires documentary ownership and states that only a “practising Muslim for at least five years” who is the legal owner can declare property as waqf. Supporters say this brings transparency. Whereas critics say it may erase centuries-old institutions that lack paperwork but have deep community legitimacy.
During the hearing before the Supreme Court, Solicitor General Tushar Mehta made the government’s position very clear. He argued that waqf by user does not enjoy constitutional protection. In court, he said, “Waqf by user is not a fundamental right, it is a creature of statute, and what the legislature creates, it can also take away.”
In other words, the Centre is saying this concept exists only because Parliament once decided to recognise it. It is not a religious freedom written into the Constitution. So if Parliament believes the provision is flawed or misused, it has the authority to remove it. This frames the amendment not as an attack on faith, but as a legislative correction.
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He also addressed the fear of land misuse more directly. The government told the court, “Nobody could claim right over public land by using waqf by user principle.” If a property could be declared waqf simply because it was used for religious purposes over a long period, even without clear ownership documents, it could potentially create disputes over public or private land.
The amendment, from the government’s perspective, is meant to prevent that uncertainty. The fear is not about mosques or graveyards that are genuinely old. The fear is about unclear titles, large land banks, and the possibility of wrongful classification.
For ordinary citizens, that uncertainty can create anxiety. A piece of land that has been used informally for prayer or community gatherings for decades, but is officially recorded as private or government property. If such land is later claimed as waqf purely based on usage, disputes can arise.
Homeowners, buyers, or even state authorities could suddenly find themselves in prolonged litigation over ownership. This can freeze transactions, reduce property value, and create confusion in land records.
In places where land prices are high, even the possibility of a religious claim can deter development or investment until the matter is legally settled. Government land meant for public infrastructure could become entangled in claims, slowing projects and triggering political tension.
The Court’s Tough Questions
CJI Sanjiv Khanna’s bench directly questioned how the removal of waqf by user would affect genuine properties. The court asked, “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 acknowledges that misuse exists. But it also recognises that many waqf properties were established long before formal land records existed. Removing waqf by user without safeguards could mean “undoing” legally recognised religious spaces.
The bench also questioned parity in religious administration, observing, “All members of the waqf boards and Central Waqf Council must be Muslims, except ex-officio members.” It raised the broader issue of whether similar standards apply across different religious trusts, touching on equality in governance.
A Long Legislative Journey
India’s waqf legislation dates back to 1913 and 1923 during British rule. The Waqf Acts of 1954 and 1995 institutionalised State Waqf Boards and the Central Waqf Council. In 2013, reforms formally recognised waqf by user and strengthened protections against misuse.
The 2025 amendment marks a sharp shift. It narrows definitions, tightens eligibility, and attempts to curb alleged misuse. It also states that already registered waqf-by-user properties will remain so, unless challenged or identified as government property. However, thousands of unregistered or disputed properties may face uncertainty.
The Waqf Amendment Act, 2025, is not just a technical change in land law. It touches faith, history, and property rights. The bench that was led by former CJI Sanjiv Khanna had made it clear that while misuse must be addressed, genuine institutions cannot be casually undone.
At its core, the debate asks a difficult question: Should centuries of religious practice be validated without documents? Or should modern governance insist on paperwork strictly? The Supreme Court now stands between these two ideas, tradition and transparency, deciding how India balances heritage with accountability.
Images: Google Images
Sources: The Indian Express, The Times Of India, Hindustan Times
Find the blogger: Katyayani Joshi
This post is tagged under: Waqf Amendment Act 2025, Supreme Court of India, Waqf by User Debate, Indian Constitution, Land Rights India, Religious Property Law, Legal Explainer India, Property Disputes, Governance and Accountability, Minority Rights India, Public Land Debate, Policy and Politics, Judicial Review India, Law and Society, India Legal News
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