A pervasive misinformation campaign, particularly on social media platforms, falsely claims that the doctrine of waqf by user allows Muslims to claim public spaces as waqf property simply by offering prayers there, such as a few instances of namaz in a park or street. This narrative wrongly suggests that waqf by user facilitates arbitrary land grabs, threatening public or private properties. Such claims are legally baseless, as waqf by user under Islamic jurisprudence and Indian law requires prolonged, consistent, and public use for religious, pious, or charitable purposes, often spanning decades or centuries, supported by historical records or community practices. Sporadic acts like offering prayers in public do not meet these stringent criteria, as courts and the Waqf Act, 1995, demand substantial evidence of dedication. The false claims have intensified after 2025 amendment delegalising waqf by user drawing considerable criticism of the legislative interference on this score. This misinformation fuels communal tensions and distorts the legal and religious framework of waqf, necessitating a clear refutation through legal analysis, judicial precedents, a comparison with analogous common law principles, and the Supreme Court’s recent stance on the Waqf (Amendment) Act, 2025.
This is a brief view of the issue touching on legal definition of waqf by user, a comparison with custom having the force of law in common law jurisdictions, references to decided cases, an analysis of the 2025 amendments, the Supreme Court’s stand during hearings on petitions challenging these amendments, and a rebuttal of the misinformation campaign.
What is the definition of waqf by user as per Islamic Jurisprudence?In Islamic law, waqf is the permanent dedication of movable or immovable property for religious, pious, or charitable purposes, with ownership symbolically transferred to God, ensuring the property’s usufruct serves beneficiaries perpetually. Waqf by user recognizes a property as waqf based on its prolonged and consistent use for such purposes, even without a formal deed (waqfnama). This doctrine is rooted in the Hanafi school, prevalent in India, which defines waqf as the detention of a specific property in God’s implied ownership, with profits devoted to charity (per Imam Abu Hanifa, Abu Yusuf, and Imam Muhammad). Waqf by user reflects the principle that long-term, public use for Islamic purposes, like maintaining a mosque, graveyard, or madrasa, demonstrates the waqif’s intent of dedication.
The foundation of waqf lies in hadiths, notably one narrated by Ibn Umar (Sahih Bukhari), where the Prophet advised Umar ibn al-Khattab to dedicate land in Khaybar as waqf, emphasizing inalienability and charitable use. Waqf by user extends this by inferring dedication from immemorial usage.
What does Indian Waqf Law say about this? The Waqf Act, 1995 (amended in 2013) governs waqf in India, defining it under Section 3(r) as “the permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable.” Section 3(r)(i) explicitly recognizes waqf by user, stating that a waqf includes “a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser.” This provision acknowledges properties used for religious or charitable purposes over a long period as waqf, even if their use temporarily ceases, provided the original purpose was pious.
A closer look will show some key features of waqf by user in Indian Law. These are as follows:
1 No Formal Deed Required: Waqf by user does not necessitate a written waqfnama; dedication is inferred from prolonged public use.
2 Perpetuity and Inalienability: Once recognized, the property is inalienable, cannot be sold, gifted, or inherited, and its benefits serve the designated purpose.
3 Judicial Recognition: Courts rely on evidence like historical records, revenue documents, or community testimonies to establish waqf status.
4 Survey and Registration: State Waqf Boards identify waqf by user through surveys, local inquiries, and public records.
At this point a comparative view of waqf by user and custom having force of law in Common Law Jurisdictions would not be out of place as both share conceptual similarities inasmuch as both rely on long-standing, consistent practices to establish legal rights or statuses without formal documentation. However, they differ in their legal foundations, scope, and application. Below is a detailed comparison, integrated here to provide a broader legal context for understanding waqf by user:
1 Definition and Basis:
Waqf by user recognizes a property as waqf based on its prolonged, consistent, and public use for religious, pious, or charitable purposes under Islamic law, as codified in the Waqf Act, 1995 (Section 3(r)(i)). It is rooted in the Hanafi school’s principle of divine ownership and perpetual charity, with judicial recognition requiring evidence of immemorial use (e.g., Sayyed Ali v. Andhra Pradesh Waqf Board, 1998).
Custom in common law is a long-established practice that, if certain conditions are met, acquires the force of law within a specific locality or community. It is recognized in common law jurisdictions (e.g., England, India, and other former British colonies) as a source of law, particularly for property rights or communal practices. For example, a village green used for recreation for centuries may be recognized as a customary right under English law.
2 Requirements for Recognition:
Waqf by user requires (i) prolonged and consistent use (often decades or centuries), (ii) a purpose recognized by Islamic law (e.g., mosque, graveyard), (iii) public and uninterrupted use, and (iv) evidence like historical records or community testimony. Courts emphasize the intent of dedication to God, as seen in Abdul Sakur v. Abu Bakkar (1930) 54 Bom 358.
Custom in common law must satisfy strict criteria, as outlined in English law (e.g., Halsbury’s Laws of England): (i) antiquity (immemorial or long-standing use, typically pre-1189 in England, though relaxed in India); (ii) continuity (uninterrupted practice); (iii) peaceable enjoyment (without opposition); (iv) certainty (clearly defined practice); (v) reasonableness (not contrary to public policy); and (vi) obligatory (binding on the community). In India, the Supreme Court in State of Bihar v. Subodh Gopal Bose (1968) AIR 1968 SC 281 recognized custom as a source of law if it meets these tests.
3 Legal Effect:
Once recognized as waqf by user the property becomes waqf, inalienable, and perpetually dedicated to its religious or charitable purpose. It cannot be sold, gifted, or inherited, and its status is protected by the principle of “once a waqf, always a waqf” (Sayyed Ali, 1998).
A recognized custom also creates legally enforceable rights, such as communal access to land (e.g., right of way, grazing rights) or exemptions from certain laws. For example, in R. v. Oxfordshire County Council (1999) UKHL, the House of Lords upheld a village green’s customary status based on long-term recreational use. Unlike waqf, custom does not transfer ownership to a divine entity but establishes usage rights.
4 Judicial Scrutiny:
Indian courts rigorously scrutinize claims, requiring robust evidence of long-term use, as seen in the Ramjanmabhoomi Case (2019) 8 SCC 1, where the Sunni Waqf Board’s waqf by user claim was evaluated against historical evidence.
In case of custom in courts also apply strict tests, often rejecting customs that fail to meet antiquity or certainty. In India, Laxmi v. Bhagwan (1973) AIR 1973 SC 250 upheld a customary right to irrigation based on long-standing village practice, but only after verifying its continuity and acceptance.
5 Similarities:
a) Both rely on long-term, consistent practice to establish legal status without formal documentation.
b) Both require public acceptance and uninterrupted use, ensuring the practice is embedded in community tradition.
c) Both are subject to judicial scrutiny, with courts demanding evidence of historical use (e.g., revenue records for waqf by user, local testimonies for custom).
d) Both protect common interests, whether religious (waqf) or societal (customary rights like access to commons).
The misinformation campaign about waqf by user ignores its similarity to custom, a respected common law principle. Just as sporadic use of a village green does not establish a customary right, occasional prayers in a public space cannot create a waqf by user. Both doctrines require substantial evidence, countering false claims of arbitrary land grabs. This comparison highlights that waqf by user, like custom in common law, is a robust legal mechanism rooted in historical practice, not a tool for opportunistic claims, as misrepresented by misinformation campaigns.
The claim that waqf by user allows Muslims to claim public places as waqf by offering prayers is a gross misrepresentation as (i) waqf by user requires prolonged and consistent use for religious or charitable purposes, typically over decades or centuries, not sporadic acts like offering namaz in a public place. Courts have held that the use must be public, uninterrupted, and reflective of a clear intent to dedicate the property as waqf (Abdul Sakur v. Abu Bakkar, 1930). (ii) Sporadic prayers in a park or street do not constitute “user” under the Waqf Act, as they lack permanence and exclusivity. The Supreme Court in Sayyed Ali v. Andhra Pradesh Waqf Board (1998) clarified that waqf by user requires immemorial or substantial use, supported by historical or documentary evidence. (iii) Courts reject frivolous waqf by user claims lacking evidence of prolonged use. In the Ramjanmabhoomi Case (2019), the Supreme Court required robust evidence of continuous religious use, demonstrating rigorous scrutiny. (iv) The Waqf Act, 1995 mandates Waqf Boards to verify claims through surveys and inquiries, ensuring only genuine waqf properties are recognized. (v) Section 6 of the Waqf Act allows challenges to waqf notifications, protecting public and private properties. The Waqf (Amendment) Act, 2025, introduces stricter verification, further preventing misuse. (vi) posts on social media falsely claimed that offering namaz in a public park could convert it into waqf, ignoring the legal threshold for waqf by user. Such misinformation contradicts judicial precedents and statutory requirements, exploiting communal sentiments. (vii) Practical eality also goes against such fearing mongering. Of 872,852 waqf properties in India, only 13,200 are disputed, and most waqf by user properties are historical mosques, graveyards, or madrasas with centuries-old usage, some even stretching back to 14th, 15th or 16th centuries. Claims over public spaces are highly unlikely and would be dismissed by courts.
Indian courts have consistently upheld waqf by user while ensuring it is not misused. Key cases include:
1 Sayyed Ali v. Andhra Pradesh Waqf Board (1998) (AIR 1998 SC 972) where waqf by user was recognised as a valid mode, emphasizing prolonged use for religious purposes. Affirmed “once a waqf, always a waqf.” The decision clarified that waqf by user requires substantial evidence, refuting claims that sporadic acts suffice.
2 M. Ismail v. Thakur Sabir Ali (1962) (AIR 1962 SC 1722) where it is held that waqf properties, including those by user, are dedicated to God, with clear evidence of religious use sufficing. The decision einforced the need for consistent use.
3 Ramjanmabhoomi Case (2019) (2019) 8 SCC 1) where waqf by user was acknowledged but required robust evidence of continuous religious use, scrutinizing the Sunni Waqf Board’s claim. This case emonstrated judicial rigor as opposed to fear mongering by misinformation campaign.
4 Kassimiah Charities v. Secretary, Madras State Waqf Board (1964) (AIR 1964 Mad 227). The decision ecognized waqf by user for properties dedicated through long-term charitable use and larified the legal basis for waqf by user.
5 Abdul Sakur v. Abu Bakkar (1930) (1930) 54 Bom 358). Here the court upheld waqf by user for a mosque based on long-term use, stressing clear intent and evidence. This case stablished that waqf by user requires sustained practice.
The Waqf (Amendment) Act, 2025, introduces drastic changes to waqf regulation, including provisions affecting waqf by user. These amendments, debated in the Joint Parliamentary Committee (JPC) and challenged in the Supreme Court, have sparked apprehension among both minorities and constitutionalists. The original draft proposed abolishing waqf by user, requiring formal deeds to establish waqf. Abolishing waqf by user would have destabilizing affect on historical waqf properties, such as centuries-old mosques or graveyards, lacking documentation due to oral or customary traditions. On recommendation of JPC the revised Act retained waqf by user in an infective and diluted form providing that properties registered as waqf by user before the Act’s enactment would retain their status unless disputed or identified as government land. New claims post-2025 would require stricter evidence (e.g., historical records). New law further requires that waqf by user properties must be verified by district collectors or Waqf Tribunals, with provision of appeals to High Courts. It is apprehended that verification under the new law risks unsettling historical waqfs in states with weak documentation. Reliance on district collectors may also lead to prejudice.
Therefore, the Supreme Court during hearing of the petitions challenging the Waqf (Amendment) Act, 2025, contesting provisions affecting waqf by user, made certain significant observations. The Court’s observations provide critical insight into its stance. The Court reiterated the validity of waqf by user, referencing Sayyed Ali v. Andhra Pradesh Waqf Board (1998), which upheld waqf by user as a recognized mode under Islamic law and the Waqf Act, 1995. The bench, led by Chief Justice Sanjiv Khanna, emphasized that waqf by user is essential for preserving historical waqf properties lacking formal deeds due to their antiquity. The Court noted that waqf by user embodies the principle of “once a waqf, always a waqf,” ensuring perpetuity and inalienability.
Petitioners argued that the initial proposal to abolish waqf by user and the revised verification requirements violate Articles 25 (freedom of religion) and 26 (management of religious affairs). They contended that verifying pre-existing waqf by user properties could lead to disputes, endangering tens of thousands of waqf properties. The Court expressed apprehension about the amendments’ potential to cause “huge consequences” for waqf properties, noting that requiring verification of long-settled waqfs could unsettle community rights and lead to bureaucratic overreach. The Court indicated it might stay provisions affecting waqf by user, pending a detailed examination. Chief Justice Khanna remarked, “We cannot allow historical waqfs, recognized by long usage, to be suddenly open to challenge without clear justification.” The Court directed the government to clarify how verification would safeguard genuine waqf by user properties and prevent arbitrary reclamation as government property, seeking safeguards for impartiality by district collectors.
The Court underscored that waqf by user is a “settled principle” in Indian law, rooted in Islamic jurisprudence and codified in the Waqf Act, 1995. It cautioned against legislative changes eroding this principle without justification. The Supreme Court’s stance reinforces waqf by user’s sanctity, countering misinformation by affirming its historical significance while supporting safeguards against misuse. The potential stay on the amendments signals a commitment to protecting religious rights while ensuring reforms do not harm established waqfs.
Waqf by user, akin to custom in common law, preserves historical endowments through long-standing practice, aligning with Islamic principles of perpetual charity and codified in Indian law. Its recognition through cases like Sayyed Ali v. Andhra Pradesh Waqf Board (1998) ensures undocumented properties serve community needs. However, its reliance on customary evidence makes it vulnerable to disputes and misinformation about arbitrary claims. The Supreme Court’s cautious approach, emphasizing the doctrine’s validity and signaling a potential stay, reflects a commitment to constitutional protections. However, verification risks bureaucratic delays and bias, necessitating robust safeguards.
The misinformation campaign exploits ignorance of waqf by user’s legal rigor, ignoring its similarity to common law custom, which also requires substantial evidence. The Supreme Court’s reaffirmation counter these false claims.
In sum, waqf by user is defined as the recognition of a property as a waqf under Islamic jurisprudence and Indian law based on its prolonged, consistent, and public use for religious, pious, or charitable purposes, without requiring a formal deed. Comparable to custom in common law, it relies on long-standing practice but is distinct in its religious purpose and perpetuity. Rooted in the Hanafi school and codified in the Waqf Act, 1995 (Section 3(r)(i)), it is upheld by cases like Sayyed Ali v. Andhra Pradesh Waqf Board (1998) and Ramjanmabhoomi Case (2019). The Waqf (Amendment) Act, 2025, sought to annul it. The Supreme Court, in April 2025 hearings, reaffirmed waqf by user’s validity, expressed concerns about the amendments’ potential to disrupt settled waqfs, and indicated a possible stay, balancing reform with constitutional protections. The misinformation campaign alleging waqf by user enables Muslims to claim public spaces by offering prayers is baseless, as the doctrine requires decades of documented use, a fact reinforced by the Court, the 2025 amendments, and its parallel with common law custom.
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