Explained: The proposed 44 amendments in the Waqf Act

Prime Minister Narendra Modi-led NDA government is set to introduce the most debated Waqf (Amendment) Bill, 2024, in the Lok Sabha on August 7. This new legislation aims to amend the Waqf Act of 1995, which currently regulates Waqf boards.

The proposed Bill includes 44 amendments that aim to repeal various clauses of the existing Waqf Act. These amendments seek to bring about significant changes in the current law governing Waqf boards. Notably, the Bill aims to enhance the representation of Muslim women and non-Muslims in these bodies, reflecting a commitment to inclusivity and diversity.

Here are all the amendments, in brief:

Introduction of Aghakhani and Bohra Waqf

Amendment of Section 3: It includes the insertion of new definitions and modifications to existing ones. Notable additions include definitions for “Aghakhani waqf” and “Bohra waqf,” along with terms like “Collector,” “Government Organisation,” and “Government property.” This section also specifies that waqf creation cannot be verbal, and introduces the concept of a “portal and database” for waqf details.

Amendment of Sections 6 and 7: This includes Aghakhani and Bohra waqfs in the list of disputes and removes the clause that made the Tribunal’s decisions final. This amendment aligns the Tribunal’s power to determine disputes regarding auqaf with the broader judicial system.

Amendment of Sections 13 and 14: It provides for the creation of separate Auqaf Boards for Bohras and Aghakhanis and broadens the composition of State Waqf Boards to include non-Muslim members, ensuring diverse representation.

Who owns the land: Govt or Waqf?

New Sections 3A, 3B, and 3C: It lay down the conditions for creating a waqf, including the requirement that the creator must be the lawful owner and capable of transferring the property. These sections also mandate the registration of waqf properties on a central portal within six months, with detailed information such as property identification, creator details, deed of waqf, management, income, and expenses.

As per section 3C: 

1. Any Government property identified or declared as waqf property, before or after the commencement of this Act, shall not be deemed to be a waqf property.
2. If any question arises regarding whether a property is Government property, it shall be referred to the Collector having jurisdiction. The Collector shall conduct an inquiry as deemed fit, determine the property’s status, and submit a report to the State Government. Until the Collector submits the report, the property shall not be treated as waqf property.
3. If the Collector determines that the property is a Government property, necessary corrections shall be made in the revenue records, and a report shall be submitted to the State Government.
4. Upon receiving the Collector’s report, the State Government shall direct the Board to make appropriate corrections in the records.

Amendment of Section 4: It replaces Survey Officers with the Collector for conducting waqf surveys in accordance with State revenue laws.

Amendment of Section 5: This introduces new sub-sections that require uploading the list of auqaf on the central portal and issuing a public notice before deciding on land mutations.

Central Waqf Council to include non-Muslims

Amendment of Section 9: It broadens the composition of the Central Waqf Council to include non-Muslim members, promoting inclusivity.

The Council shall consist of the following members:

• The Union Minister in charge of waqf, who shall be the Chairperson, ex officio.
• Three Members of Parliament, including two from the House of the People and one from the Council of States.
• Members appointed by the Central Government from amongst Muslims, as follows:

1. Three persons representing Muslim organizations of all-India character and national importance.
2. Chairpersons of three Boards, appointed by rotation.
3. One person representing mutawallis of waqf with a gross annual income of five lakh rupees or more.
4. Three eminent scholars in Muslim law.
5. Two individuals who have served as Judges of the Supreme Court or a High Court.
6. One advocate of national eminence.

• Four persons of national eminence, one each from the fields of administration or management, financial management, engineering or architecture, and medicine.
• The Additional Secretary or Joint Secretary to the Government of India dealing with waqf matters in the Union Ministry or department, ex officio.
• It is stipulated that two of the members appointed under clause (c) shall be women.
• Additionally, it is required that two members appointed under this sub-section shall be non-Muslim.

Amendment of Section 16: This introduces conviction with a sentence of two years or more as a ground for disqualification from the Board.

Amendment of Section 17: It is now mandated that the Council must meet at least once every month.

Omission of Section 20A: This section is entirely omitted from the Act.

Amendment of Section 23: The new sub-section requires a full-time Chief Executive Officer for the Board, appointed by the State Government, and not below the rank of Joint Secretary to the State Government.

Amendment of Section 32: Sub-section (2), clause (e) omits the Explanation and proviso. Sub-section (3) removes the finality of the Tribunal’s decision.

Amendment of Section 33: Sub-section (4) removes the Tribunal’s power to stay the operation of the Chief Executive Officer’s order. Sub-section (6) is omitted.

No registration on Waqf portal if property is disputed

Amendment of Section 36: Starting from the Waqf (Amendment) Act, 2024, you must have a waqf deed to create a waqf. The registration process will now be done through the portal and database, and details required will be set by the Central Government. If a waqf deed is missing, you don’t need to provide full details. The Collector will now check if the application is genuine and valid. If the property is disputed or government-owned, it won’t be registered until the dispute is settled by a court. The previous rule about registration details has been removed. Additionally, new rules state that once a waqf is registered, a certificate will be issued through the portal, and no legal actions can be taken for unregistered waqfs after six months from when the Act begins.

Amendment of Section 37: Sub-section (1) adds that details need to follow rules set by the Central Government and changes the term “provided by regulations” to “prescribed by the Central Government.” Sub-section (3) now requires a public notice before making changes to land records. This notice must be published in two daily newspapers, including one in the local language, and gives people affected by the change a chance to respond.

Waqf will not decide which property is Waqf property

Amendment of Section 40: It omits the section that granted the Board the power to decide if a property is waqf property.

All financial reports to be submitted to centre

Amendment of Section 46: This adjusts deadlines and details required for filing financial reports to the Central Government.

Amendment of Section 47: It modifies audit requirements and the process for appointing auditors for waqf properties. It also mandates that audits can be conducted by a panel prepared by the State Government or directed by the Comptroller and Auditor-General of India, with audit reports published as prescribed by the Central Government.

Amendment of Section 48: It includes provisions for the publication of audit reports and the manner of issuing notices for objections.

Qualification for being a mutawalli

Insertion of Section 50A: A new section, 50A, is introduced, disqualifying a person from being appointed or continuing as a mutawalli if they:

• Are under 21 years of age.
• Are of unsound mind.
• Are an undischarged insolvent.
• Have been convicted of an offence and sentenced to imprisonment for not less than two years.
• Have encroached on waqf property.
• Have been previously removed as a mutawalli or by court/tribunal for mismanagement or corruption.

Amendment of Section 52: In sub-section (4), the finality of the Tribunal’s decision on appeals is removed.

Punishments for violators

Amendment of Section 52A: Changes include substituting “rigorous imprisonment” with “imprisonment,” reverting property back to the waqf instead of the Board, and omitting sub-sections (2) and (4).

Amendment of Section 55A: The clause stating that the Tribunal’s decision is final is removed.

Amendments to Section 61: It update the rules for penalties. If you fail to meet requirements without a valid reason, you can be fined between twenty thousand and fifty thousand rupees. Some previous clauses (e) and (f) have been removed. A new rule has been added to punish mutawallis (managers of waqf properties) who don’t hand over property, follow instructions, provide accounts, or upload details. These punishments can include up to six months in prison and fines ranging from twenty thousand to one lakh rupees.

Amendments of Section 64: The amendments update the rules about maintaining accounts. If accounts are not kept properly or yearly statements are not submitted within a year, there will be penalties. The section also now disqualifies members of unlawful associations under the Unlawful Activities (Prevention) Act, 1967. Additionally, the rule that the Tribunal’s decision on appeals was final has been removed.

Amendment of Section 65: Sub-section (3) specifies that tasks must be completed within six months.

Amendment of Section 67: The changes give a 60-day period to appeal to the Tribunal, and remove the rule that the Tribunal’s decision is final.

Amendment of Section 69: One rule has been removed, and a new requirement is added for public notice and inviting objections before making decisions.

Amendment of Section 72: The interest rate has been changed from seven per cent to five per cent. Also, the finality of the Board’s decisions is removed.

Amendment of Section 73: The rule that the Tribunal’s decision on appeals was final has been removed.

Tribunal or High Court to look waqf disputes

Amendment of Section 83: Other Tribunals can now be assigned for handling this Act. If no Tribunal is working, appeals can be made to the High Court. Tribunals must have two members: a District Judge (Chairman) and a Joint Secretary, with the Chairman able to act alone if the other member is absent. The Chairman and member can only serve for five years or until they turn 65, whichever comes first. The rule that Tribunal decisions are final is removed, and appeals can be made to the High Court within 90 days.

Amendment of Section 84: Decisions must be made within six months of the application, with an additional six months allowed if reasons are recorded.

Amendment of Section 91: References are updated from the old Land Acquisition Act to the 2013 Act, and the decision-making period is shortened from three months to one month. New rules are added to delay orders if the property is claimed by the Board.

Amendment of Section 100: The term “Survey Commissioner” is replaced with “Collector.”

Amendment of Section 101: Changes all references from “Survey Commissioner” to “Collector.”

Amendments of Section 104 and 107: It omit the application of the Act to properties donated by non-Muslims and the section making the Limitation Act, 1963 inapplicable for waqf property recovery, respectively.

Amendments of Sections 108 and 108A: This omit sections regarding special provisions for evacuee waqf properties and the Act’s overriding effect.

Central government can make laws for waqf

Insertion of Section 108B grants the Central Government the power to make rules under the Act.

Amendment of Section 109 modifies the power to make rules, specifying the matters for which rules can be established.

Amendment of Section 110 adjusts the Board’s power to make regulations, including procedural and administrative details such as notifications and notices.

Financial and Delegated Legislation aspects of the amendments include a financial memorandum stating that no additional financial expenditure is required and provisions for delegated legislation allowing the Central Government to make detailed rules for the Act’s implementation.

The bill is scheduled for tabling today and is expected to be passed by both houses of Parliament before it is signed into law by the President. The Waqf has faced significant scrutiny due to its involvement in numerous legal disputes and irregularities since its inception. There have been widespread demands from various sections of society for the Waqf to be abolished or for the relevant legislation to be revised.

The proposed amendments aim to address these concerns by increasing the involvement of the government and other authorities in overseeing Waqf activities. This move is intended to enhance transparency and inclusivity, ensuring that the organisation operates with greater accountability.