KOCHI: The Kerala High Court on Wednesday said the state can include two non-Muslim members in the existing Waqf Board on a temporary basis so that it can continue functioning, and that a decision on reconstitution can be taken later.
The court stated that there was no order restraining the state government from reconstituting the Waqf Board. The existing Board can continue to function in the meantime, provided two non-Muslim members are included as mandated under Section 14(1) of the Waqf Act, amended in 2025, it stated.
A division bench comprising Chief Justice Soumen Sen and Justice V M Syam Kumar made the observation while hearing four public interest litigations filed by BJP leader Shone George and others challenging the constitution of the Board without the mandatory inclusion of two non-Muslim members.
Appearing for the state, Advocate General K Jaju Babu submitted that the government was prepared to comply with the amended provision requiring the induction of two non-Muslim members. However, he argued that merely appointing them to the existing Board will not rectify the defect and that the Board will have to be reconstituted.
He also informed the court that the exercise of identifying the various classes among the Muslim community, as contemplated under Section 14(6) of the Act, had not been completed before the existing Board was constituted.
Three weeks granted to file affidavits
The court orally observed that the decision on reconstituting the Board rested with the state government and directed it to file an affidavit if it accepted that the current Board had not been properly constituted.
It also made it clear that there was no legal impediment to the government reconstituting the board if it found the present composition to be inconsistent with the Act. The bench observed that the government could first fill the two vacancies and later decide whether a broader reconstitution of the board was required.
The bench granted all parties three weeks to file their affidavits and posted the matter for further hearing on August 19.
The HC also clarified that its earlier interim order did not prevent the Board from exercising its quasi-judicial powers. It said the restrictions applied only to major policy decisions and capital expenditure, for which prior permission of the court would be required.
On July 15, the HC had observed that the Board was prima facie not constituted in accordance with the amended provisions of the Waqf Act and restrained it from taking major policy decisions or incurring capital expenditure without the court’s permission. The Supreme Court subsequently modified that order by setting aside the direction requiring the Board to function under the joint decretary of the state government, while leaving remaining directions unchanged.
