The Waqf (Amendment) Bill, 2024, introduced in the Lok Sabha during the Budget session of Parliament, turned out to be a trial by fire for the Modi 3.0, which is grappling with the new realities of coalition government.
Facing fierce objections from Opposition parties, Muslim bodies, and other stakeholders, the government moved the proposed legislation for further scrutiny to a Joint Parliamentary Committee (JPC) after it was introduced in the Lok Sabha on August 8. The 31-member JPC led by BJP MP Jagadambika Pal has held two meetings of the committee so far.
The committee is scheduled to submit its report during the next Parliament session in December. The government says the Bill, which proposes sweeping changes to the Waqf Act 1995, is aimed at effective management of waqf properties and to “enhance efficiency” of waqf administration. However, the Opposition parties and Muslim bodies say it is a move to curtail the autonomy of the community. Several provisions of the proposed Bill, such as the inclusion of non-Muslim members in Waqf Boards and giving more powers to district collectors, have been opposed by many.
Proposed key amendments
The contentious Bill proposes as many as 44 amendments to the existing Waqf Act 1995, including changing the name of the parent Act to ‘Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995’.
One of the most debated aspects of the Bill is the proposal to include non-Muslim members in the Central Waqf Council and state Waqf Boards. Clause 15 of the Bill seeks to amend Section 23 relating to the appointment of Chief Executive Officer (CEO) and his term of office and other conditions of service so as to provide that the CEO is not below the rank of Joint Secretary to the state government and remove the requirement of him being a Muslim.
The relevant section of the Bill reads, In section 23 of the principal Act, for sub-section (1), the following sub-section shall be substituted, namely: “(1) There shall be a full-time Chief Executive Officer of the Board to be appointed by the State Government and who shall be not below the rank of Joint Secretary to the State Government.” While the parent Act mandated that the CEO must be a Muslim, that is missing in the new Bill.
The Bill also proposes that the Central Waqf Council and state Waqf Boards must have at least two women on the boards and at least two non-Muslim members appointed by the state government to the Waqf Boards at the state level.
According to the Bill, MPs, former judges, and eminent persons appointed to the Council need not be Muslims. Opposing the inclusion of non-Muslims in key waqf boards, Opposition parties have argued that while non-Hindus were not allowed to be part of temple boards, the same rule must be applied to Muslims as well.
Another key amendment provides absolute power to the district collector to decide whether a property is waqf or government land. While the Waqf Act 1995 provides for the appointment of a survey commissioner and additional commissioners to survey waqf, the Bill empowers district collectors to conduct the survey.
Another proposal to abolish Section 40 from the existing Act, has invited scathing criticism from the opposition parties. As per Section 40 of the Waqf Act 1995 (as amended in 2013), the state Waqf Board is empowered to decide whether a particular property is a waqf property. The Waqf 1995 Act was amended in 2013 to include Section 40, under the Manmohan Singh-led UPA government.
Under the Bill, only a person practicing Islam for at least five years is authorised to create a waqf. In contrast, the existing Act allows waqf to be formed by declaration, waqf by user, or endowment when the line of succession ends (waqf-alal-aulad). The new Bill removes the waqf by user provision and adds that waqf-alal-aulad must not result in denial of inheritance rights to the donor’s heir, including women heirs.
The new Bill has also altered the composition of the Tribunal. As per the new Bill, the Tribunal will now have a district judge and an officer of joint secretary rank to the State government.
The proposed Bill omits provisions deeming finality to the Tribunal’s decisions, adding its orders can be appealed in an high court within 90 days. The high court can also consider matters on its own accord, on an application by the Board, or an aggrieved party.
Another key aspect of the Bill is that any government property identified as waqf will cease to be so. “The Collector of the area will determine ownership in case of uncertainty, and submit a report to the state government. If deemed a government property, he will update the revenue records,” it says.
The Bill further mandates that details of waqfs registered under the existing Waqf Act, 1995, before the proposed legislation, must be uploaded on a central portal within six months of the commencement of the new Act. The proposed legislation has also empowered the Central government to make rules regarding registration, publication of accounts of waqf, and publication of proceedings of Waqf Boards. While the Bill allows separate Waqf Boards for Aghakhani and Bohra sects, the existing Act, too, allows establishing separate Waqf Boards for Sunni and Shia sects if Shia waqf constitutes more than 15% of all waqf properties or waqf income in the state.
What is Waqf
Under Islamic law, waqf is a religious charity. People can dedicate their movable or immovable property for religious or charitable purposes for the Muslim community. The property must then be used for community purposes such as mosques, madrasas, burial grounds, and hospitals among others. The history of Waqfs in India dates back to the beginning of the Delhi Sultanate.
In 1954, the Jawaharlal Nehru government passed the Waqf Act and established the Central Waqf Council in 1964. In 1995, the law was amended to allow the formation of Waqf Boards in each state and Union Territory. The Waqf Act of 1995 regulates ‘auqaf’ (assets dedicated and notified as waqf) by a wakif, the person who dedicates property for purposes recognised by Muslim law as pious, religious or charitable. The UPA government in 2013 further amended the Act to grant more power to the Waqf boards.
The Opposition
The proposed Bill has stirred a hornet’s nest with Opposition parties and Muslim bodies describing it as anti-constitutional and politically motivated. Recently, the All India Muslim Personal Law Board, along with key Muslim organisations, called for the withdrawal of the Bill, flagging concerns over increased non-Muslim representation in Waqf Boards, altered trustee roles, and a shift in dispute resolution, potentially threatening the protection of waqf properties.
Raising concerns over the Bill, AIMIM chief Asaduddin Owaisi said, “In chapter 11 of Structure Committee, there’s a mention of waqf properties, in which six states have been mentioned where the government has taken over the waqf properties. In Delhi, the government has taken over 200 properties of waqf. The Modi government is trying to eliminate ‘waqf by user’,” he said.
Waqf properties are private properties and not public properties, he said. “The government is saying to register all the properties through deeds covered under Waqf. If we do not bring the deeds, then registration will not be done. Therefore, the government will take over those properties. These were not given to us by the government but our Muslim brothers gave this for charity. How can you treat it like a public property?”
On the issue of electing non-Muslim members to Waqf Boards, Owaisi said, “In UP, the Kashi Vishwanath Temple Act of 1983 states that only Hindu members are eligible to be part of the board. It also says, if a Hindu member is not eligible, then another Hindu will take their place.”
Congress and other Opposition parties have accused the government of trying to wrest the assets from the Muslim communities. Speaking to this newspaper, prominent activist and founder of the Bharatiya Muslim Mahila Andolan, Zakia Soman, said that though Waqf Boards need reforms, the government’s intent behind the proposed Bill is unclear. “It is more about taking away the autonomy of the Waqf Boards and transferring it to the district collector. What is the need for it? The very definition of waqf is that the donor gives it in the name of Allah for the community. So it’s a highly religious thing. Why alter the structure?” she says. Soman also says that there is nothing new in including women members in Waqf Boards as the provision already existed in the current Waqf Act.
Soman also contests the government’s claims that the stakeholders have been consulted for the proposed Bill. “We were not consulted for the new Bill. You have to keep the community involved in all these efforts and bring out a transparent mechanism to serve the interests of the community,” she says.
Speaking to this newspaper, M R Shamshad, senior advocate of the Supreme Court says that the proposed amendments violate the Constitution. “On the face of it, the proposed amendments are arbitrary and violative of Articles 25, 26, 29 and 14 of the Constitution. Right to manage and administer is proposed to be given to the Collectors and through the revenue authorities like the government does with Nazul lands and government acquired properties,” he says.
Waqf properties, he added, will become more vulnerable than even Nazul properties considering the prejudice and narrative that have been created. India is seeing how collectors are behaving with the houses of Muslims.
Past commissions
While introducing the Bill in the Lok Sabha, Union minister Kiran Rijiju asserted that it is in accordance with the earlier recommendations made by the Sachar committee and the JPCs led by former Deputy Chairman of the Rajya Sabha K Rahman Khan. Speaking to this paper, Rahman Khan, former minister of minority affairs said that the government has not followed the recommendations of the past committees, adding the new Bill is an attempt to create division among communities. He led two JPCs in 1999 and 2008 on Waqf Boards.
“The amendments made in 2013 are based on recommendations by the Sachar committee and the JPCs led by me. There is no requirement of a new Bill. The Sachar Committee and the JPC had emphatically said that to develop waqf properties, they should establish a Waqf Development Corporation. This was one of the major recommendations of the JPC. The UPA government in January, 2014, established a corporation with a capital of Rs 500 crore. In the last 10 years, the government has done nothing, and it is on the verge of closing,” he said.
“Earlier, surveying waqf properties was handled by the survey commissioners under the 1995 Act. Now, it is entrusted with district collectors or officers of equivalent rank to bring about transparency. By doing this, they are giving all the powers to the collectors. The collectors will become powerful, and they are under government control,” he said.
The government is misleading the public by saying Waqf Boards can acquire any property, said Rahman.
“It is foolishness. Are we living in a jungle law? The 1995 Waqf Act says the government should appoint a survey commissioner to decide a waqf property and he will submit his report to the government. The government then publishes it in the gazette and the affected persons can file objections,” he said.
If it belongs to an Muslim, the person should file the objection within a year. For non-Muslims, there’s no time limit for filing the objections, he said. “The government has not given any justification for the changes it made,” he asserted.
According to estimates, Waqf Boards control 8.7 lakh properties spanning 9.4 lakh acres across India. “The Waqf Board cannot be an owner. It has only supervisory power. The Waqf Board is not the owner of even a single property out of these. The government is dramatising the whole thing, Even the Supreme Court has reiterated in several cases that once a waqf is always a waqf,” he said.
The former minister will soon be appearing before the JPC to present his views, he said. However, he doesn’t think the JPC will serve any purpose.
I don’t think anything will come out of this JPC. The government has made up its mind. The JPC can suggest changes but the government may or may not accept it,” he added.
Section 40 in the Act that has been axed
It says the Waqf Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf, it may, after making such inquiry as it may deem fit, decide the question. The decision of the Board shall, unless revoked or modified by the Tribunal, will be final.
Sachar committee recommendations
Woman representation: At least two women each in the Central Waqf Council and each state Waqf Board
Composition of the Central Waqf Council (CWC): Appoint an eminent person like a retired high court judge, chancellor and vice chancellors of central universities and former chiefs of state Waqf boards as full time president. President may hold office for three years. The other members can be nominated from a list of eminent Muslims drawn from various professions. The representation of MPs and MLAs may be reduced from four to two. Secretary should be an officer of the rank of at least joint secretary to the Govt of India; must have good knowledge of Waqf matters, Muslim scriptures and proficiency in Urdu.
State Waqf Boards: The chairman and members can be selected from a list of eminent persons in each state. Representation of MPs and MLAs may be reduced from four to two. CEO should ideally be a Class I Officer of All India or Central Services.
Group-A Officers for Waqfs: Strong case to create a new cadre of officers through the UPSC to manage the affairs of State Waqf Boards and Central Waqf Council. Up to 200 Group-A officers are needed to manage waqfs affairs across India.
Maintenance of accounts: Make financial audit of all waqfs mandatory.
National & State Waqf Development Corporations: It may be constituted by the Centre with a revolving corpus fund of Rs 500 crore with matching funds from the community and NGOs. Should be tasked to provide financial and technical help for development of Waqf properties. Its CMD should be well versed in Muslim religious practices and proficient in Urdu.
Enhanced Lease Period: Increase the maximum period of lease of waqf properties from 3 to 30 years where the property is used by registered charitable societies or trusts for building and/or running educational or health care institutions, or for other social and economic developmental purposes consistent with the objects of the waqf and as permissible under Islamic law.
Define encroacher: Insert definition of encroacher in Section 3. It should say encroacher means “any person occupying the Waqf premises without the authority of law and includes a person whose tenancy, lease or license has expired or has been terminated by the Board, or who has altered the property leased out or occupied by him without the prior written permission of the Waqf Board concerned”.
Person interested: A person occupying waqf premises should be included in the definition of “person interested”.
Waqf premises: They should be defined to mean “any Mosque, Graveyard, Mazar, Takiya, Eidgah, Imambara, Dargah, Khanqah, Maqbara, Anjuman and land appurtenant or belonging to them, the property dedicated for their maintenance, the property purchased from their income, the land, garden, well, baoli, school, hospital and other institutions dedicated as waqf and the passages used leading to the Waqf premises.
What’s in the new BIll
The Waqf (Amendment) Bill, 2024 aims to amend the Waqf Act, 1995. The Bill renames the Act as ‘United Waqf Management, Empowerment, Efficiency and Development Act, 1995’.
Formation of waqf: The 1995 Act allows waqf to be formed by: (i) declaration, (ii) recognition based on long-term use (waqf by user), or (iii) endowment when the line of succession ends (waqf-alal-aulad). The Bill states that only a person practicing Islam for at least five years may declare a waqf. Also, only a property owner can declare it as waqf. Besides, waqf-alal-aulad must not result in denial of inheritance rights to the donor’s heir, including women heirs.
Govt property as waqf: Bill states that any govt property identified as waqf will cease to be so. The Collector of the area will determine ownership in case of uncertainty, and submit a report to the state govt.
Power to determine if a property is waqf: The Act empowers the Waqf Board to inquire and determine if a property is waqf. It was inserted in 2013. The Bill removes this provision.
Survey of waqf: The Act provides for appointment of a Survey Commissioner and additional commissioners to survey waqf. The Bill empowers Collectors to do the survey.
Central Waqf Council: It wil advice the central and state governments and Waqf Boards. The Act says the Union minister in-charge of Waqf is the ex-officio chairperson of the Council. It requires that all council members be Muslims, and at least two must be women. But the Bill provides that two members must be non-Muslims. MPs, former judges, and eminent persons appointed to the council as per the Act need not be Muslims.
Waqf Boards: The Act provides for election of up to two members each from electoral colleges of Muslim: (i) MPs, (ii) MLAs and MLCs, and (iii) Bar Council members, from each state to their Board. The Bill instead empowers state govt to nominate one person from each of the above background to the Board. They need not be Muslims. It adds that the Board must have: (i) two non-Muslim members and (ii) at least one member each from Shias, Sunnis, and Backward classes of Muslims.
Composition of Tribunals: The Act requires states to constitute Tribunals to address waqf disputes. The Chairman of these Tribunals must be a judge of the rank equivalent to a Class-1, District, Sessions, or Civil Judge. Other members include: (i) a state officer equal to an Additional District Magistrate, and (ii) a person knowledgeable in Muslim law and jurisprudence. The Bill removes the latter from the Tribunal. It instead provides the following as members: (i) a current or former District Court judge as its chairman, and (ii) a current or former officer of the rank joint secretary to the state govt.
Appeal on orders of Tribunals: Under the Act, decisions of the Tribunal are final and appeals against its decisions in courts are prohibited. The Bill allows appeal of the Tribunal’s orders in the High Court within 90 days.
Powers of the Central govt: The Bill empowers the Centre to make rules regarding: (i) registration, (ii) publication of accounts of waqf, and (iii) publication of proceedings of Waqf Boards. Under the Act, state government may get the accounts of waqfs audited at any point. The Bill empowers the Centre to get these audited by the CAG or a designated officer.
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