The Supreme Court raised questions over provisions in the recently passed Waqf Amendment Act. Advocate Vishnu Shankar Jain on Thursday challenged the very foundation of the “waqf-by-user” concept.
He argued that such a principle should be done away with and efforts made to reclaim properties acquired under its pretext.
“If Temple-by-User Isn’t Valid, Why Waqf-by-User?”
Drawing comparisons with other religious institutions, Jain told the media, “There was a Shiv Temple, which was demolished in Delhi, and it was said that Lord Shiva didn’t need our protection; the Supreme Court later upheld this decision… If temple-by-user and church-by-user are not a thing, why should waqf-by-user exist?”
He urged for action to reclaim such properties: “The concept waqf-by-user should be stayed, and efforts should be made to bring back properties acquired on the basis of this concept.”
Waqf-By-User: A Contested Practice
The term waqf-by-user refers to the informal recognition of property as waqf (endowed for religious or charitable purposes) solely on the basis of long-term religious use, even without legal documentation. This has often led to disputes over ownership, especially involving government or public land.
Jain defended the changes brought in through the recent amendments to the Waqf Act, particularly the provision that disallows waqf-by-user in land disputes.
“There were few things left in the Waqf (Amendment) Act as per our expectations, but the least work that the Parliament has done is that at the places of the dispute, waqf-by-user will not be accepted,” he said.
He also added, “The second thing is if any government property has been declared Waqf property — we will take it back.”
Objection To Court’s Intervention Under Article 32
Jain also expressed concern over the Supreme Court’s move to intervene directly under Article 32, which allows individuals to approach the apex court for the enforcement of fundamental rights. He warned that such intervention could establish a problematic precedent.
“In yesterday’s hearing, the Supreme Court said that it would issue an interim order and interfere in the matter. However, my take is that the Supreme Court cannot directly hear this issue under Article 32 because similar cases were brought to the Supreme Court, and they were asked to go to the High Courts,” he said.
“So, if the Supreme Court passes an order this time, it will set a wrong precedent,” he added.
In a possible solution to streamline the legal process, Jain proposed that all cases relating to the Waqf Amendment Act be transferred to a single High Court, and that a constitutional bench be formed to hear them within six months.
His comments come amid growing legal and political attention on the Waqf Amendment Act and its implications on religious property laws, government land ownership, and constitutional rights.
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