The Supreme Court of India on Wednesday raised serious concerns about the Waqf (Amendment) Act, 2023, particularly over the law’s controversial move to revoke the long-established practice of ‘waqf by user’, warning that denotification could trigger “huge consequences” for countless properties across India.
A three-judge bench led by Chief Justice Sanjeev Khanna, along with Justices Dipankar Datta and Augustine George Masih, made the observations while hearing a batch of 73 petitions challenging the constitutionality of the new law, which was recently passed by Parliament.
‘Waqf by User’ in Legal Crosshairs
At the heart of Wednesday’s proceedings was the removal of the ‘waqf by user’ provision — a practice where properties, even without formal sale deeds, are classified as waqf based on their long-term religious or charitable use, particularly in the Muslim community.
CJI Khanna pointed out the historical reality that most mosques built between the 14th and 16th centuries would naturally not have formal sale or registration deeds. Eliminating the ‘waqf by user’ clause, he warned, could amount to “undoing something that’s been established for centuries.”
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“You still haven’t answered the question,” the CJI told Solicitor General Tushar Mehta, who was representing the Union Government. “If you denotify ‘waqf by user,’ what will happen to properties that have existed and served religious or charitable purposes for generations without formal documentation?”
Government’s Stand Draws Judicial Scrutiny
In its defense, the Centre argued that the new law only prevents properties from receiving waqf status benefits during a government inquiry — especially if the land is suspected to be public or government-owned.
Mehta clarified, “The act doesn’t say usage will stop. It only states the property will not enjoy the benefits of waqf until the status is clarified.” But the bench remained skeptical, questioning the legal gray area regarding rental income and property rights during such ambiguous periods.
Inclusion of Non-Muslims in Waqf Boards Raises Eyebrows
Beyond the ‘waqf by user’ debate, the Supreme Court also grilled the government on another key feature of the amendment: the provision allowing non-Muslims to be appointed to Waqf Boards and the Central Waqf Council.
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The court posed a pointed question to the Centre: “Would you permit Muslims on Hindu endowment boards?” — highlighting potential inconsistencies in the amendment’s approach to religious trusts and governance.
Waqf Act Sparks Nationwide Protests
The Waqf (Amendment) Act, 2023 has already ignited widespread protests, particularly in West Bengal’s Murshidabad district, a Muslim-majority region bordering Bangladesh, where demonstrations have occasionally turned violent.
Critics argue that the law dilutes protections for historical religious sites and undermines the community’s ability to preserve heritage properties. Petitioners fear that the amendment, if upheld, will set a dangerous precedent for property rights and religious freedoms.
Next Hearing on Thursday
Although the court declined to issue any interim orders after objections from the Solicitor General and state counsels, the bench signaled that the matter remains urgent and delicate. The Supreme Court will resume hearings Thursday as the future of the ‘waqf by user’ tradition and the broader implications of the Waqf (Amendment) Act hang in the balance.
