8 Aug 2024 10:41 AM GMT
Today in the ongoing monsoon session of the Parliament, the Union Minority Affairs Minister Kiren Rijiju introduced the Waqf (Amendment) Bill, 2024 in Lok Sabha. It proposes to bring approximately 40 amendments to the existing Waqf Act, 1995 (as amended in 2013).
After an intense debate, the house referred the Bill to a Joint Parliamentary Committee for wider scrutiny, after the Minister agreed to it.
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), 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. The decision of Tribunal shall be final. Moreover, not suit to the Tribunal shall not be constituted 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. Member of Parliament from Kerala, K.C. Venugopal termed the Bill "draconian" and "fundamental attack on the Constitution".
TMC Legislator Sudip Bandyopadhyay from Kolkata termed the Bill as a violation of Articles 14, 25 and 26 which protects equality and freedom of religion.
DMK MP Kanimozhi Karunanidhi from Thoothukkudi (Tamil Nadu) commenting on the Bill said: "Today we see the government is blatantly going against the Constitution. The Bill is not just against the Constitution, it is against federalism and religious minority..."
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.