Question

Suppose a property has been used as a waqf by a user for decades without a formal deed; the Amendment now requires a formal deed / 5-year practising clause — is this property at risk? What constitutional rights are engaged?

Hint:

Waqf by user is a judicially recognised doctrine. Any amendment abolishing it engages Art. 25–26 (religion), Art. 14 (arbitrariness), and Art. 300A (property).

Answer 1

The new Waqf Amendment Act, 2025 introduces two major requirements:
(1) a formal written waqf deed, and
(2) proof that the waqif has practised Islam for 5 years before creating a waqf.
This creates tension for properties that have been used as waqf for decades purely through long-standing religious usage (waqf by user) without any deed.
1. Is the property at risk?
Yes — but only if the Amendment is strictly enforced. Traditionally, Islamic law and Indian case law recognise: \[ Waqf by user = long, continuous, public religious use creates a valid waqf even without a deed. \] This principle has been upheld in several judgments (e.g., \textit{Fakirappa v. Mutawalli} and others) and follows classical Hanafi doctrine.
The Amendment, however, requires:

a written deed,
verification of the waqif’s 5-year Islamic practice.
Thus: \[ \boxed{Long-standing waqf properties are at risk of being declared invalid or “non-waqf” under the Amendment unless judicially protected.} \] However, since such properties have been used for religious purposes for decades, courts may apply:

the doctrine of vested religious rights,
the doctrine of legitimate expectation,
constitutional protection of denominational autonomy.
Most importantly, the Supreme Court has already stayed the 5-year practice clause, suggesting that the judiciary recognises the serious constitutional concerns.
2. Constitutional rights engaged The following rights are implicated: (a) Article 25 – Freedom of religion Users have the right to practise and manage religious spaces that have existed functionally as waqf for decades. (b) Article 26(b) – Denominational autonomy Muslim communities have the right: \[ “to manage their own affairs in matters of religion.” \] Declaring a property “invalid” due to lack of deed interferes with internal religious administration.
(c) Article 26(d) – Right to administer property dedicated to religion A long-standing waqf is property “belonging to a religious denomination.” Imposing deed requirements could violate 26(d).
(d) Article 14 – Arbitrary classification Requiring a formal deed for a waqf, unlike trusts and Hindu religious endowments, may violate equality if it disproportionately harms Muslims.
(e) Article 300A (Property rights) Deregistration or takeover of property amounts to deprivation of property without authority of law unless justified.
Conclusion \[ \boxed{\text{Yes — the property is at risk, and Articles 14, 25, 26, and 300A are directly engaged.}} \]

Answer 2

This question tests two things: first, whether the property's status as waqf survives the new formal-deed and five-year-practice requirements, and second, which fundamental rights come into play if it does not.

Under classical Muslim law as applied by Indian courts, a waqf can be created in three ways: by a written deed, by oral declaration, or by long, open, and continuous religious use of the property, known as waqf by user. Where a mosque, graveyard, or madrasa has functioned as a religious endowment for decades without objection, courts have repeatedly recognised this as a valid waqf even though no deed exists, because the conduct of the community itself is treated as proof of dedication.

The Waqf (Amendment) Act, 2025 disturbs this settled position by conditioning valid waqf creation on a formal written deed and on proof that the person creating the waqf had practised Islam for five continuous years beforehand. Applied literally and retrospectively, this would place decades-old waqf-by-user properties at risk, since no deed was ever executed and the religious history of the original dedicator, who may be long dead, cannot realistically be proved after the fact. This is precisely the concern that led the Supreme Court to stay the five-year clause pending final adjudication, recognising that the requirement, if enforced, would retroactively unsettle religious dedications.

Once the risk to the property is established, the constitutional rights engaged follow from what a waqf actually is: property permanently dedicated to religious and charitable use, administered by a religious community. Article 25 protects the community's freedom to practise religion, which includes maintaining the mosque or graveyard itself. Article 26(b) and 26(d) protect the community's right to manage its own religious affairs and to administer property dedicated to religion, which a deed requirement threatens by making that property's status depend on a formality that was never a condition when the community began using it. Article 14 is engaged because the deed and five-year conditions apply to Muslim waqfs but not to comparable Hindu or Sikh religious endowments, raising a question of unequal treatment without a rational basis tied to religion. Article 300A is engaged at the final stage: if the property is stripped of its waqf status, this amounts to a deprivation of property, and any such deprivation must be backed by fair, non-arbitrary legal authority.

The property is therefore at risk, and Articles 14, 25, 26, and 300A are all directly engaged.