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 \[ \boxed{\text{Yes — the property is at risk, and Articles 14, 25, 26, and 300A are directly engaged.}} \]