SC Flags Concerns Over Waqf-by-User Denotification, Terms It a ‘Huge Problem’

The Supreme Court on Wednesday expressed serious concerns over certain provisions of the Waqf (Amendment) Act, 2025, particularly the move to derecognise the long-established category of Waqf-by-user properties. Chief Justice of India Sanjiv Khanna, heading a three-judge Bench, described the potential consequences of such denotification as a “huge problem”, while observing that many of these properties have existed for centuries, predating formal land registration systems in India.

The Bench was hearing a batch of nearly 100 petitions challenging the constitutional validity of the recent amendments, in a packed courtroom that reflected the magnitude of public interest surrounding the case.

Court proposes interim relief

During the two-hour hearing, Chief Justice Khanna proposed a three-point interim arrangement aimed at “balancing equities” until the court arrives at a final decision.

First, he suggested that properties already declared as Waqf by courts—including those under the Waqf-by-user category or Waqf by long-standing usage without formal registration—should not be denotified or treated as non-Waqf properties for the time being. These also include Waqf properties recognised through declarations or other means.

Second, while allowing designated government officers to continue examining whether a property belongs to the Waqf or the government, the Chief Justice recommended staying a connected clause that effectively freezes the use of such properties as Waqf until the decision is finalised.

Third, the court considered permitting the appointment of non-Muslims as ex-officio members in the Central Waqf Council and Waqf Boards, provided the remaining members of these bodies continue to be Muslims. This was seen as a measure to address representation concerns raised under the new amendment.

Government seeks more time

However, Solicitor General Tushar Mehta, appearing for the Union government, urged the court to defer the interim ruling to allow more time for arguments. Taking note of the government’s request, the court adjourned the matter to 2 p.m. on Thursday, without issuing any formal interim order or notice to the Centre.

‘Exceptional case’, says CJI

The Chief Justice clarified that while judicial interference in Parliamentary legislation is rare, the present matter merited special consideration. “This is an exceptional case,” he remarked, pointing out the historical and cultural significance of many Waqf-by-user properties.

He emphasised that many of these religious properties, including prominent structures such as the Jama Masjid, were constructed in the 14th to 17th centuries—long before the existence of land registration laws or the Transfer of Property Act. “Asking them to produce a registered sale deed now is an impossibility,” he noted.

CJI Khanna posed a crucial question to the Solicitor General: “If Waqf-by-user was a valid and recognised category under earlier versions of the Waqf Act, can it now be rendered void by a mere amendment?”

The case is being closely watched for its far-reaching implications on religious endowments and minority rights across the country. With no interim relief granted yet, the legal and political discourse surrounding the Waqf (Amendment) Act, 2025, remains intense and unresolved.

The hearing is scheduled to resume today.