Waqf (Amendment) Bill 2024 Sent To Joint Parliamentary Committee: Proposed Changes Explained

Here are the following proposed amendments(changes highlighted in bold letters):

Under the definition clause

Under Section 3(r): “Waqf” means the permanent dedication by any person [practicing Islam for at least five years, of any movable or immovable property, having ownership of such property] for any purpose recognised by the Muslim law as pious, religious or charitable.

Section 3(r)(iv): Waqf-alal-aulad (An endowment for the family of the donor) to the extent to which the property is dedicated to any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare [maintenance of widow, divorced woman and orphan in such manner, as may be prescribed by the Central Government] and such other purposes as recognised by Muslim law.

Section 3(da) introduces the position of Collector who would exercise powers some of which were once vested with the Auqaf Board.

Insertion of Sections 3A, 3B and 3C for regulating waqf properties

Section 3A: Certain conditions of waqf- 1. Only a person lawful owner of the property and competent to transfer or dedicate such property can create waqf; 2. Creation of waqf-alal-aulad shall not result in denial of inheritance rights of heirs, including women heirs, of the waqif(person making such dedication)

Section 3B: Filing of details of waqf on portal and database: 1. Every waqf registered before the 2024 Amendment shall file details of the waqf and properties dedicated to the waqf to the portal and database within 1 month; 2. Details including deed, gross annual income from waqf properties, pending court cases, salary of mutawalli, taxes annually payable, name and address of creator of waqf etc and any other particulars prescribed by Central Government.

Portal and database have been defined under Section 3(ka) inserted as : “waqf asset management system or any other system set up by the Central Government for the registration, accounts, audit and any other detail of waqf and the Board, as may be prescribed by the Central Government”.

Section 3C: Wrongful declaration of waqf-1. Any government property 'identified' or 'declared' as waqf, before or after the Amendment, shall not be deemed to be waqf property; 2. In case of dispute whether such property belongs to government, a Collector shall make inquiry and submit report to State Government. The property in question shall not be treated as waqf until the collector submits his report.

Position of Survey Commissioner omitted

In Section 4(preliminary survey of auqaf) of the 1995 Act, it was stated that the State government must appoint a Survey Commissioner to conduct a survey of auqaf in the State. In the 2024 Amendment, the position of Survey Commissioner is replaced by Collector who shall exercise the jurisdiction. Further, the nature of waqf apart from Shia or Sunni now also includes 'Aghakhani waqf' or 'Bohra waqf'.

As per Section 5 (publication of list of auqaf) of the 1995 Act, once the report of the Survey Commissioner on the list of auqaf under Section 4 is given to the State government, the same shall be examined by Waqf Board. Within six months, the Waqf Board shall forward the report to the Government for publishing in the official gazette. The revenue authorities shall accordingly update the land records. Now, revenue authorities before updating the land revenue records will mandatorily have to issue public notice of 90 days, in two daily newspaper circulating in the localities of such areas where the waqf properties are located. One of the notices shall be in regional language. This is to give the affected persons opportunity to be heard.

Suit can be filed to challenge the decision of Waqf Tribunal

Under Section 6 (disputes regarding auqaf) of the 1995 Act, whether a property specified as waqf in the list of auqaf is waqf or not or whether it is Shia or Sunni waqf shall be decided by a Tribunal instituted under Section 83 consisting of one person from State Judicial Service holding rank of civil judge or district judge, one person from State Civil Services equivalent to Additional District Magistrate, and one person renowned in Muslim law and jurisprudence. The decision of Tribunal shall be final. Moreover, not suit to the Tribunal shall not be instituted one year after publication of the list of auqaf. This is read with Section 40 (Decision if a property waqf property) where the Board may itself collect information regarding any property which it has reason to believe to be waqf property.

However, as per 2024 proposed amendment, decision of the Tribunal is not final and suit can be constituted within a period of two years from the publication of the list of auqaf. An application can be constituted even after two years if the applicant satisfies that it had sufficient cause for not making an application within time. Moreover, Section 40 is omitted.

Constitution of Board and Council  

Under Section 9, which specifies the Constitution of Central Waqf Council, the composition is more or less the same except the members appointed by the Central Government under the 1995 Act include 'at least two members to be women'. Now, only two women members could be appointed amongst the list specified and two non-Muslim members shall also be appointed.

As per Section 14 which specifies the Composition of Board of Auqaf, the composition is more or less the same except only two members shall be women, and now two member shall be non-Muslim, “at least” one member each from Shia, Sunni and other backward classes among Muslim Communities and one member from Bohra and Aghakhani shall be nominated if they have functional auqaf in State.

No registration of Auqaf without execution deed

Now, under Section 36 (Registration of Auqaf), no waqf shall be created without execution of a waqf deed. Earlier, the registration was prescribed by the regulation provided by Auqaf Board, now it is provided through the online portal and database.

Now, an inquiry into the genuineness of the application by the Collector is mandatory. If the Collector reports that the waqf property to be registered is in dispute or is a Government property, no registration shall be done unless the competent court has resolved the dispute.

Audit of accounts of auqaf

As per Section 47(audit of accounts of auqaf) under the 1995, the accounts of auqaf shall be audited by an auditor appointed by the Auqaf Board but could also be audited by the State Government. Now, under the proposed amendment, auditors appointed by the Auqaf Board shall be from the panel of auditors prepared by the State Government. Moreover, the Central Government shall have the powers to direct the audit at any time by an auditor appointed by the Comptroller and Auditor-General of India. The Central Government can order publication of the audit report in a manner it may prescribe.

As per the Statement of Objects and Reasons, it has been found that the 1995 Act has not proved effective in improving the administration of auqaf.

The draft Bill states: “Based on the recommendations of the High-Level Committee under the chairmanship of Justice (Retired) Rajinder Sachar and the Report of the Joint Parliamentary Committee on Waqf and Central Waqf Council and after having detailed consultation with other stakeholders, comprehensive amendments were made in the Act in the year 2013. Despite the amendments, it has been observed that the Act still requires further improvement to effectively address issues related to the powers of the State Waqf Boards, registration and survey of waqf properties, removal of encroachments, including the definition of the “waqf” itself.”

However, the members of the Opposition have vehemently opposed the Bill.

Parliamentary debate on the Bill 

The Opposition have broadly raised issues over the lack of legislative competence, eroding federalism and the violation of the fundamental right of the religious community to govern its religious affairs.

MP K.C. Venugopal from Alappuzha (Kerala) stated that the Bill is "an attack on the Constitution" because it tears the secular fabric of the country protected under Articles 25 (freedom of conscience and free profession, practice and propagation of religion) and 26 (freedom to manage religious affairs) of the Indian Constitution. This is done through the proposed amendments like inclusion of non-Muslim members in the Waqf Council and the Auqaf Board. Article 26 protects every religious denomination to manage its own affairs in the matter of religion.

Venugopal said: "This provision that non-Muslim can be a part of the Waqf Council is directly an attack on the faith and freedom of religion."

This concern of inclusion of non-Muslim members was also raised by Kanimozhi Karunanidhi from Thoothukkudhi (Tamil Nadu). She added that this violates Article 30 of the Constitution as well which empowers minorities to administer their own institutions.

Violation of Article 30 was also raised by E.T. Mohammed Basheer, MP from Malappuram (Kerala). He also raised issue that the powers which were vested with waqf Board will be exercised by Collectors. 

On federalism, Venugopal said that the Central Government has no power to prescribe or make rules for the waqf property. It comes within the legislative domain of the State governments.

The members of Opposition including Sudip Bandyopadhyay, N.K. Premchandran and MP Asaduddin Owaisi pointed out that managing waqf properties constitutes an essential religious practice for Muslims. Therefore, any violation of the same would constitute a discrimination on the ground of religion under Article 15(1) (prohibition of discrimination) and resultantly a violation of right to equality under Article 14. 

He stated that this could be further understood from the constitutional scheme under Schedule VII where land is a subject of the State List. Even when States are empowered, the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962) must be keep in mind wherein, it was held that matters of religion are completely outside State interference, subject of course to public order, morality and health.

Supriya Sule, MP from Baramati (Maharashtra) said that the Bill has been introduced without requisite consultation from stakeholders. She also raised the issue that the decisions of Waqf Tribunals has been made appealable and that cooperative federalism has been sidelined as the Central Government can make rules now for the regulation of waqf. 

Rijiju defended the Bill and told the Parliament that all the amendments are as per the Sachar Committee including the inclusion of non-Muslim members.

He said that the provisions of the Bill does not take away the freedom of any religious body protected under Articles 25 to 30. 

He rejected the arguments of waqf board being a religion denomination and stated that as per the Bramchari Sidheswar Bhai & Ors.v State Of West Bengal (1995), waqf board does not fall within the purview of Articles 25 and 26.

Further, he stated that the amendments proposed in the Bill are within legislative competence as it is exercised in accordance with Entry 10 (Trust and Trustees) and 28 (Charities and charitable institutions, charitable and religious endowments and religious institutions) of the Concurrent List. 

Rijiju referred to the 1976 Waqf Inquiry Report and told the Parliamentarians that the report reveals that most of waqf properties are in possession of Mutawallis and therefore, the benefits are not equally distributed. He also said that the report suggested that Tribunals should be removed as it has failed to settle the disputes and added that 19,207 cases are currently pending before it. 

Rijiju pointed out that the report suggested that the audit system must also be changed.  

The Opposition has stated that the Bill must be referred to the Parliamentary Standing Committee to address the concerns and especially because the Bill has been tabled without proper consultation.

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