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The Supreme Court on Wednesday indicated it is considering staying the operation of certain parts of the contentious Waqf Act, 2025 which include the concept of ‘waqf-by-user’, representation of non-Muslims on waqf boards, and the powers of the Collector to change the status of disputed waqf land.
“We do not stay a legislation normally at this stage of the challenge unless in exceptional circumstances. This appears to be an exception. Our concern is that if waqf-by-user is de-notified, there could be huge consequences,” Chief Justice of India Sanjiv Khanna said in an oral observation. The bench also comprised Justices P V Sanjay Kumar and KV Viswanathan.
The 2025 Waqf law does away with the concept of waqf-by-user. Waqf-by-user is land used for Muslim religious or charitable purpose for a long period of time – it is deemed to be a waqf even if it was not registered as such. This could potentially raise questions on the status of several such waqf properties.
“As far as waqf-by-user is concerned, it will be very difficult to register. So, there is ambiguity there. You may argue that waqf-by-user is also being misused. You have a point there… You may have a point that’s being misused also, but at the same time, there is genuine waqf-by-user also. You can’t say that there is no genuine waqf-by-user either,” CJI Khanna said.
Solicitor General Tushar Mehta said he will be able to justify the government’s stand that if a waqf-by-user is registered, it will continue to remain so. He said he was saying so because registration of waqf properties has been mandatory since the first Waqf Act in 1923.
“From 1923 when the first Waqf Act came into force, registration of waqf is mandatory, statutorily, mandatorily required. You cannot have an unregistered waqf. Even waqf-by-user cannot be unregistered, which was followed by the waqf act of 1954. Under 1954 Act also, it is mandatory to have your waqf-by-user or any other waqf registered. That was followed by the Waqf Act of 1995. The present Act, where also the registration of waqf is… only compulsory.…,” Mehta said.
The 2025 law states that if the district collector identifies any property as government land, it would cease to be waqf property till a court determines its status. The Supreme Court indicated that while the Collector can make his inquiry, the effect of his determination could be kept in abeyance.
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The three-judge bench was about to dictate the interim order when Solicitor General Mehta sought to be heard for some more time. The Court then said that it would hear the case again on April 17 at 3pm before passing orders. The Court also indicated that it would decide whether it would continue to hear the batch of cases or refer to one High Court for consideration.
After the hearing concluded, CJI Khanna expressed concern on the violence in West Bengal, and termed it “disturbing.” SG Mehta, added that there was a “phenomenon that you can pressurise the system”.
Senior advocate Abhishek Manu Singhvi, appearing for the petitioners told the bench that “of about 8 lakh existing waqfs, roughly 4 lakh are perhaps by user and that the newly introduced provision, makes them non-existent by one stroke of the pen.”
The petitioners also cited the SC’s Ayodhya judgement which had recognised that the concept of waqf-by-user is an old concept followed for centuries. Singhvi said that “some of these pernicious provisions, they’ve come into effect immediately. We are seeking a stay.”
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Responding to Mehta’s arguments that only registered waqfs will continue to enjoy waqf by user status, the CJI said, there are two issues that arise – the expressions “in dispute” and “is a government property”.
“What do you mean by the term ‘is in dispute’? It doesn’t say it’s before the court or is otherwise in dispute,” said Justice Khanna. “Second issue is with regard to government property. Now the fact of the matter is, before the Britishers came, we did not have any registration of property… Many of the masjids may have been constructed in 14th, 15th, 16th, 17th centuries. To require them to produce a registered sale deed will be impossible.”
Mehta, however, said “nothing prevented them from going and getting it registered after 1923. It was mandatory.” Senior advocate Kapil Sibal, who led the arguments for the petitioners termed the amendments “a parliamentary usurpation of the faith of 200 million citizens of this country.”
