Source: Indian Express 

Introduction 

The Supreme Court is currently adjudicating challenges to the Waqf Act, 2025, with approximately 65 petitions contesting its constitutional validity. The petitioners, including prominent parliamentarians and religious leaders, primarily contend that the legislation violates Article 26 of the Constitution of India, 1950 (COI) by interfering with essential religious practices of the Muslim community. Central to this challenge is the Act's abolition of the concept of "Waqf by use" for future dedications, which petitioners argue creates an unreasonable burden of documentation for properties used as Waqfs for centuries. 

What are the Key Characteristics of a Property Being 'Waqf By Use'? 

• "Waqf by use" simply means that a property can be deemed to be a Waqf through use as a Waqf, even if the original declaration is suspect or non-existent. 
• Long-term Usage is a defining characteristic, as it involves the sustained use of a property for religious or charitable purposes over an extended period of time, which establishes its Waqf status regardless of formal documentation. 
• While the specific length of time required for establishing "Waqf by use" is not officially defined in numerical terms, Indian jurisprudence and legal statutes—including the Waqf Acts of 1954 and 1995—have recognized and upheld this concept. 
• Implied Dedication is another key feature, where a property's dedication to Waqf status can be inferred from its consistent usage pattern and the conduct of the owner or community toward it. 
• A property being used by a mosque, or one that is being used as a graveyard can, by virtue of this usage, be considered 'Waqf by use' even in the absence of a formal Waqfnama or deed document. 
• The concept acknowledges the historical reality that in Islamic law, the dedication of property as Waqf was largely done verbally until documentation became the standard norm in more recent times. 
• Chief Justice of India Sanjiv Khanna acknowledged this historical context when he stated: "Many of the masjids were created in the 14th or 15th centuries. To require them to produce a registered deed is impossible." 
• "Waqf by use" has been legally recognized by courts, including acknowledgment in the Supreme Court's landmark 2019 Ayodhya judgment, establishing its legal validity within Indian jurisprudence. 
• The concept is particularly important for properties established before the introduction of modern land registration laws, as the CJI noted: "Before the Britishers came, we did not have a land registration law or Transfer of Property Act." 
• According to the petitioners' representation, approximately half of the eight lakh Waqf properties in India are "Waqf by users," demonstrating the widespread relevance and application of this concept. 

What are the Key Challenges Regarding the 2025 Waqf Act? 

• The petitioners argue that doing away with the concept of "Waqf by use" creates an impossible burden of proof for properties that have been used as Waqfs for centuries, as Chief Justice Khanna noted: "Before the Britishers came, we did not have a land registration law or Transfer of Property Act. Many of the masjids were created in the 14th or 15th centuries. To require them to produce a registered deed is impossible." 
• The 2025 law restricts "Waqf by use" only to properties already registered as Waqf, and further states that disputed properties or allegedly government-owned land will not be treated as Waqf-by-use, effectively undermining a centuries-old practice recognized in Islamic law. 
• A contentious provision grants district collectors the power to identify land currently in use as a Waqf as government land, causing it to cease being Waqf land until a court decides the dispute, which alters the status of Waqf property even before judicial determination. 
• Petitioners challenge the inclusion of non-Muslims in Waqf boards and the Waqf council as violative of Articles 26(b), 26(c), and 26(d) of the COI, which guarantee a community's right to manage its religious affairs, with their position being that "even one [non-Muslim] is too many." 
• The Supreme Court questioned this provision, asking the Solicitor General: "Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards? Say it openly." 
• The application of the Limitation Act, 1963 to Waqf properties is challenged as it removes the exception previously granted in the 1995 Waqf Act, which allowed Waqfs to act against encroachments without a specific time limit. 
• The petitioners, including MPs Asaduddin Owaisi, Mahua Moitra, Manoj Kumar Jha, and others, frame the entire law as violative of Article 26 of the COI, contending that Parliament has interfered with "the essential and integral parts of the faith." 
• According to Senior Advocate Kapil Sibal: "Many of these Waqfs were created 100 years ago. Where do you find the records? They will now ask for a Waqf deed for a 300-year-old property... that's the problem." 
• The amended Act, by omitting provisions relating to "Waqf by use," makes Waqf properties suspect in the absence of a valid Waqfnama and open to interference by the government or land disputes by private entities. 

Conclusion 

The Supreme Court, while reserving its interim order until May 5, has secured an undertaking from the Centre that no changes will be made to existing Waqf properties' status before the next hearing. The Court has indicated particular concern regarding the provisions permitting non-Muslim appointments to Waqf boards and the District Collector's powers to unilaterally determine property status. The challenge ultimately hinges on balancing the government's stated objective of preventing encroachment against the constitutionally protected right of religious communities to manage their own affairs, particularly regarding properties with centuries of established religious usage.