New Delhi: The draft report of the Joint Parliamentary Committee (JPC) on the Waqf Amendment Bill adopted Wednesday does not just retain a majority of the changes proposed by the Centre in the original legislation, but also tightens the amendment that would allow inclusion of at least two non-Muslims in the Central Waqf Council, drawing strong dissent from the Opposition. The JPC adopted the 655-page report with 15 votes in favour and 11 against it. The report will be submitted to Lok Sabha Speaker Om Birla Thursday but there is no clarity yet if it will be passed during the budget session.
Opposition MPs in the panel, including those from the Congress, Trinamool Congress, DMK and AIMIM, submitted their dissent notes, saying the proposed changes “hit the religious faith of the Muslims” as protected under Article 26 of the Constitution.
Among amendments accepted by the JPC, one pertains to the clause that stipulates that only a person practicing Islam for at least five years will be permitted to dedicate any movable or immovable property as waqf.
While most opposition members and state waqf boards outright opposed the clause, saying disallowing non-Muslims the scope to declare their property as waqf went against civil liberties, some also pointed out that the proposed change was prone to misuse and litigation.
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The JPC has now proposed that only persons “showing or demonstrating that he/she is practicing Islam for at least five years, of any movable or immovable property, having ownership of such property and that there is no contrivance involved in the dedication of such property” be allowed to dedicate any movable or immovable property as waqf.
It proposed the inclusion of the word “demonstrate”.
In their dissent note, TMC MPs Kalyan Banerjee and Nadimul Haque wrote that if no person can be compelled to practice his own religion, then such persons cannot be debarred either to offer his property to God whether he is Hindu or Muslim or any other religion.
“Practicing religion means day to day performing of his religious duty. In a secular democratic country like us no one can be compelled to perform any religious duty. If such a provision cannot be made either in the Constitution or in any other statute no mandatory provision can be made for practicing Islam for at least five years for making Waqf,” they flagged.
AIMIM chief Asaduddin Owaisi argued in his dissent note that the legal effect of conversion to any religion is that all the attendant rights and duties attach to the convert from the moment of conversion. “Moreover, there is no legal mechanism to determine what counts as ‘practicing Islam’ or what counts as ‘showing or demonstrating that…’ a person practiced Islam for five years,” he wrote.
The JPC, chaired by BJP MP Jagdambika Pal, has recommended that the Bill, introduced by the Centre in August 2024, be amended to underline that two members, “excluding ex-officio members,” in the council shall be non-Muslims. The presence of non-Muslims only in the form of ex-officio members—or two civil servants—will go against the intent of the proposed changes, the panel observed.
“It has been brought to the knowledge of the Committee that the presence of non-Muslim ex-officio members may result in fulfilling the requirement of the proposed amendment whereas this may go against the intent of the proposed amendments. Hence, the following amendment is proposed in second proviso of Clause 9: ‘Provided further that two members appointed under this sub-section excluding ex-officio members, shall be non-Muslims’,” states the report.
The Opposition has been insisting that the Bill seeks to open the door for government interference in Muslim religious affairs.
In his note, Owaisi said passage of the Bill would mean that of the 22 members in the waqf council, only 10 will have to be Muslims. “In other words, the majority of the members could be non-Muslims, if so nominated. This violates Article 26 which guarantees each denomination their right to establish and administer their charitable and religious endowments,” he said.
However, speaking to ThePrint, a senior government official said the rules that would follow passage of the Bill would specify that the council can have a maximum of four non-Muslims, including the two ex-officio members.
On Monday, the JPC had rejected all 44 amendments moved by the opposition members in the panel, while accepting the 14 changes proposed by the members of the BJP and other parties in the ruling NDA.
Meanwhile, the committee also recommended that the Ministry of Minority Affairs take “appropriate legislative measures to forestall declaration of tribal lands as ‘waqf’ land in order to ensure protection of Scheduled areas and tribal areas”.
It did so after observing in the report that “recently, numerous cases have come to the notice of the committee concerning the declaration of waqf lands in tribal areas falling under Schedule 5 and Schedule 6 of the Indian Constitution. Waqf in these areas, it said, is creating a “serious threat” to the existence of these cultural minorities whose religious practices are distinct and do not follow religious practices prescribed under Islam.
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‘Waqf by user’ & collectors as arbiters
One area of concern that the JPC attempted to address is the proposed amendment that seeks to do away with the provision of “waqf by user” that allows a property to be declared as waqf not through formal documentation but because it has been used for pious, religious or charitable purposes for a long time.
It had sparked uncertainty over the status of the existing “waqf by user” properties, the panel observed, adding that the relevant clause in the Bill should be amended to clarify that it would not have under its ambit properties already registered as such.
“The committee, in order to evade such apprehensions propose that a proviso clearly specifying that the omission of ‘waqf by user’ from the definition of the waqf will apply prospectively, that is, the cases of existing waqf properties already registered as ‘waqf by user’ will not be reopened and will remain as waqf properties, even if they do not have a waqf deed,” according to the report.
However, the 31-member panel, with 16 members from the NDA including 12 BJP MPs, and 13 from the Opposition, other than one YSRCP MP and a nominated member, added that the prospective aspect will not be applicable in cases of properties “involved in a dispute or be a government property”.
Likewise, the JPC has also kept the proposal to make the Limitation Act of 1963 applicable to waqf properties but with prospective effect. If accepted, it will prevent waqf boards from seeking legal recourse to remove alleged encroachers, who have occupied waqf properties for 12 years or more.
Congress Lok Sabha MP Gaurav Gogoi wrote that the proposed amendments “clearly diminish, erode and destroy certain essential and fundamental characteristics of waqfs in India”.
“Any bad faith actor can institute a litigation over any part of the properties belonging to waqf by user and consequently prevent it from seeking any protection under the amended Act,” Gogoi wrote.
The JPC has also proposed a change in the clause in the Bill that sought to empower the central government by allowing it to appoint district collectors as arbiters in cases of wrongful declaration of properties as waqf.
The JPC suggested that instead of the collectors, the Act should stipulate that state governments “may by notification designate an Officer above the rank of Collector hereinafter called the designated officer, who shall conduct an inquiry as per law”.
It also has provisions that allow the state government to establish separate waqf boards for Aghakhani and Bohra communities and safeguard women’s inheritance rights in Waqf Alal Aulad (family waqfs).
The amendments also allow the income from Waqf Alal Aulad to support widows, divorced women, and orphans, if specified by the waqif (creator of the waqf). Also, for the first time, “pasmanda” (backward) Muslims, the poor, women and orphans have been included among beneficiaries of the waqf, an endowment made by Muslims for charitable religious purposes, Pal was quoted by news agency PTI as having said.
During the winter session, the JPC was given an extension till the last day of the upcoming budget session. The Opposition alleged that the government had shown undue haste to get the JPC to adopt the report so that it can be exploited for political gains ahead of assembly polls in Delhi.
(Edited by Amrtansh Arora)
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