Govt Free To Reconstitute Kerala Waqf Board, Can Appoint Non-Muslim Members In Interim: High Court In PILs Over Board's Composition

The Kerala High Court on Wednesday (July 22) orally observed that there is no order restraining the State Government from reconstituting the Kerala State Waqf Board. The Court further indicated that in the interim, the Government can appoint the statutorily mandated non-Muslim members so that the Board can continue to function.The Division Bench of Chief Justice Soumen Sen and Justice Syam Kumar V.M. made the oral observation while considering four public interest litigations challenging the constitution of the State Waqf Board, over non-inclusion of non-Muslim persons.The Bench clarified that while it could not direct the removal of the existing members, the State remained free to undertake a complete reshuffle or reconstitution of the Board if it considered such a course necessary."we cannot say that the existing member has to go...For the time being, you have to nominate two non-Muslims. The Board has to function...Your reconstitution may take some time. But for the time being, you appoint two non-Muslim members. You said that the state government is in the process of reconstituting the Board...No one has prevented you from reshuffling. There is no order of preventing you from reshuffling. For the time being, till you reshuffle, you have to nominate non-muslim members. One Shia, one Bohra, whatever is there..For the time being, non-Muslim members are not there. So that has to be nominated by the government. If that nomination takes place, then the Board can function...Whether you'll reconstitute or not, that is entirely your decision. It has nothing to do with this. It is for you to find out, on a review, it has not been properly constituted, what is required to be done....It is your subjective satisfaction. Whatever the process, you have to complete it within certain time...In the meantime, without prejudice to your contentions, you can appoint two non-Muslims."It also clarified that Waqf Board is not restrained from taking quasi-judicial decisions and that the same does not fall within policy decisions or incurring of capital expenditure."we have stopped the Waqf Board from incurring any capital expenditure or taking any major policy decisions. Of course, it can continue with the quasi-judicial function...Quasi judicial is not a capital expenditure or policy decision."Yesterday, the Apex Court had deleted the High Court's direction that the Board shall function under supervision of the government's Joint Secretary/Additional Secretary. It, however, did not interfere with the direction that the Board shall not make any major decisions without permission of the Court.The Court today orally questioned the State over the delay in appointing non-Muslim as well as Shia and Bohra community members to the Board, observing that such appointments are mandated under the Waqf Act."Act requires two non-Muslims as well as Shia and Bohra. These have to be nominated by the State. So why you are deferring it?"The Advocate General Jaju Babu appearing for the State submitted that the Government was prepared to comply with Section 14 of the Waqf Act but faced practical difficulties because only two vacancies presently exist on the Board."The whole constitution has to go...The problem is that the existing vacancies are not towards the vacancies that are now pointed out. So a reshuffling is required...We are ready to comply with S.14 [Waqf Act]." The Court further orally said that the State, if it is conceding that the present constitution is not proper, must state the same by way of an affidavit.Senior Advocate T. Krishnanunni, appearing for the present Board, submitted that the Supreme Court had also requested the High Court to dispose of the matter expeditiously after hearing all parties. He sought time to complete pleadings on behalf of the Board.The Court has directed all parties to complete pleadings, including claims and counter claims, within 3 weeks. The matters are posted for hearing after 4 weeks.BackgroundAll the PILs have challenged the non-inclusion of non-Muslim persons to the Board, which is mandated as per the newly amended Waqf Act.One of the PILs, moved by the Christian charitable organisation named Assembly of Christian Trust Services (ACTS), has also challenged the upload of the details of the disputed Munambam land on UMEED Portal (Unified Waqf Management, Empowerment, Efficiency, and Development Portal), which is set up for the purpose of filing of details of waqf, saying that it affects Hindu and Christian communities living there.In the PIL moved by ACTS, there is a challenge to the very composition of the Board for non-inclusion of Shia, Bohra and Aghakhani communities as mandated by law. The composition is also challenged on various other grounds.The organisation has thus sough for a direction to the State government to issue a fresh notification nominating new members to the Board in accordance with law within a timeframe fixed by the Court. The ACTS has also challenged the filing of the disputed ...

Govt Free To Reconstitute Kerala Waqf Board, Can Appoint Non-Muslim Members In Interim: High Court In PILs Over Board's Composition

K. Salma Jennath

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K. Salma Jennath

Govt Free To Reconstitute Kerala Waqf Board, Can Appoint Non-Muslim Members In Interim: High Court In PILs Over Board's Composition

K. Salma Jennath

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K. Salma Jennath

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