Waqf by User Under Judicial Review: Reconciling Faith, Property Rights, and Legal Certainty

Imagine a centuries-old mosque in a village or a dargah visited by generations of devotees — places deeply woven into the spiritual and social fabric of their communities. Until now, under the “Waqf by User” provision, such sites could be legally recognized as waqf even without formal documentation. However, the Supreme Court of India, in its recent interim ruling on the Waqf (Amendment) Act, 2025, is considering the abolition of this clause. This move has sparked widespread debate, as it could fundamentally alter how historic religious endowments are protected, documented, and managed, raising critical questions about reconciling legal formalities with the preservation of India’s rich cultural and religious heritage (Waqf Act, 1995; Waqf (Amendment) Act, 2025).

For instance, imagine a plot in a village that has housed a mosque for decades but was never formally recorded as a waqf property; under the present provision, the court could still deem it a waqf based on that continuous worship.

Should the bench ultimately strike down this provision, it would constitute a major overhaul of how religious endowments are governed throughout the country. The ripple effect would be substantial: existing waqf holdings might have to be re-registered, disputes over ownership could be resolved differently, and the overall legal framework for waqf assets could be reshaped, altering the future picture of religious property rights across India.

Judicial Concerns Driving Scrutiny

• Combating Fraud: Critics argue that the “waqf by user” rule can be misused, since land may be declared waqf merely because it has been used for prayers or rituals without any documents. This opens the door for false or exaggerated claims.
• The Challenge: Many genuine mosques, dargahs, and graveyards were set up centuries ago without written deeds. Removing the rule entirely could therefore harm authentic religious sites that simply lack paperwork.
• Promoting Legal Order: If the provision is struck down, waqf claims would need proper ownership records or registration, just like other property disputes under the Limitation Act. This would strengthen legal order and prevent misuse.
• The Challenge: Proving ownership of centuries-old mosques, shrines, and burial grounds is often impossible, as historical records were never made or have been lost. Even legitimate religious sites could face uncertainty.
• Ensuring Judicial Authority: The Court has stressed that waqf disputes should be decided by specialized Waqf Tribunals, not revenue officers. For example, disputes over the boundaries of a waqf graveyard or the appointment of a mutawalli (manager) require legal expertise, not routine land administration.

Criticisms and Concerns

Opponents of abolishing waqf by user raise several worries:

• Impact on Old Sites: Many mosques, dargahs, and shrines that are hundreds of years old lack official records. Their legal status could become uncertain.
• Community Disadvantage: Since a large proportion of Muslim religious places are undocumented, the community may face disproportionate hardship.
• Risk of Reclassification or Loss of Protection: Properties without proof might be taken over as government land, even if they have served as community spaces for centuries.

Possible Impacts on Religious Institutions

• Stricter Controls: Waqf Boards may be required to meticulously register all holdings. Properties currently recognized only through long-standing community use could lose protection unless formally documented.
• Resource Strain: Smaller religious sites might lack the capacity to meet new legal standards, potentially excluding them from waqf protection.

Potential Safeguards Under Consideration

• Protecting Old Properties: Experts say that if the rule is removed, properties already treated as waqf under the old system may still remain protected. Only new claims without documents would be stopped. For example, a centuries-old mosque already recognized as waqf would likely stay safe, but a new prayer hall set up on undocumented land could not be claimed as waqf without papers.
• Tribunal Oversight: Any disputes about waqf land would go to special Waqf Tribunals, which are proper legal bodies, instead of being decided by revenue officers or local officials. This means, for instance, that if a dargah’s land ownership is questioned, the case would be handled by a Tribunal judge rather than a revenue clerk.

Wider Implications

Balancing Faith and Regulation: A ruling against waqf by user would highlight the state’s growing role in regulating religious assets to prevent misuse, while still needing to respect minority rights.

Dialogue with Stakeholders: The Court has emphasized the importance of community consultation, to avoid alienation or perceptions of unfair treatment.

Geographic and Property-Type Repercussions

1. Urban Areas (Delhi, Hyderabad, Kolkata)

   Dense concentrations of undocumented mosques, dargahs, and graveyards may face heightened scrutiny.

2. Rural Areas (Uttar Pradesh, Bihar, West Bengal)

   Community-run waqfs without formal records could be most vulnerable.

3. Southern States (Tamil Nadu, Kerala, Karnataka)

   Better-documented waqf systems may see relatively less disruption.

Type of Property and Impact

Moving Forward

• Community Preparedness: Waqf Boards and religious leaders should prioritize documentation and digitization of waqf properties through platforms like WAMSI.
• Legal Aid: NGOs and minority rights bodies can provide pro bono legal help for vulnerable sites.
• Policy Dialogue: Stakeholder consultation will be essential if reforms are implemented.

Court’s Insistence on Registration Contradicts the Essence of Waqf

The Supreme Court’s view is that registration of waqf properties has been mandatory since the Waqf Act, 1923, so insisting on registration today is not a new burden. It sees registration as a safeguard to ensure proper management and prevent disputes.

Tension with Islamic Law

Under classical Shariah principles, registration or paperwork is not required for a waqf to be valid. A waqf is created once the owner makes a clear declaration dedicating property for a religious or charitable purpose (e.g., building a mosque, maintaining a graveyard, feeding the poor).

The validity of waqf comes from intention and dedication, not from state approval or written records.

The Contradiction

When the Court insists that waqf properties must be formally registered to be legally recognized, it introduces a requirement not found in Islamic law. This creates a practical and legal conflict:

• Many centuries-old waqfs (mosques, dargahs, graveyards) were established purely under Islamic principles without paperwork.
• Applying the “registration rule” retroactively could undermine the status of these genuine waqfs, even though they are valid under Islamic law.

In Short

• Islamic law: Waqf is valid by declaration and use, even without documents.
• Court’s view: Registration is mandatory under Indian statutory law since 1923, so unregistered waqfs are not legally secure.

That’s why critics say the Court’s insistence on registration contradicts the essence of waqf in Islamic jurisprudence, where faith and dedication mattered more than formal paperwork.

Comparative Perspective and Policy Insight

Globally, states have sought to regulate waqf properties to prevent misuse while preserving heritage. In Pakistan, Bangladesh, Egypt, and Turkey, registration is mandatory, but historical waqfs are generally grandfathered or recognized through alternative evidence.

In India, however, the Supreme Court’s push for strict registration since 1923 conflicts with classical Islamic waqf principles, which validate waqfs through dedication and continuous use rather than paperwork.

India can learn from comparative models by adopting a balanced approach: grandfathering historic waqfs, accepting flexible evidence for old properties, creating a time-limited registration window, strengthening Waqf Boards and Tribunals, and ensuring active community consultation.

Regulation and registration are legitimate and necessary goals. But law reform that elevates paperwork over practice will harm living faith institutions and inflame communal anxieties. A middle path is needed:

1. Mandate registration going forward.
2. Preserve and regularise historic waqfs through flexible evidence and grandfathering.
3. Build institutional capacity for fair tribunal-based adjudication.

The comparative experience shows this is feasible, achievable only if reforms account for history, evidentiary realities, and minority sensitivities.

Conclusion

The Supreme Court’s forthcoming decision on waqf carries far-reaching consequences. Abolishing the rule could bring greater legal order and help prevent fraudulent land claims, yet it also risks undermining centuries-old mosques, dargahs, and graveyards that were never formally documented.

Many of these sites are not just properties but living symbols of faith and cultural heritage, particularly for India’s Muslim community. The challenge before the Court is to find a balanced path – one that strengthens transparency and accountability in waqf administration while also protecting minority rights.

Ultimately, the verdict will not only settle a legal question but also test India’s ability to uphold both the sanctity of faith and the certainty of law.

As India navigates this legal crossroads, the challenge lies in crafting a framework that honors centuries-old religious heritage while ensuring transparency, fairness, and legal rigor. The Supreme Court’s final verdict will shape not just property law, but the contours of constitutional faith and minority rights in modern India.