The Supreme Court on Tuesday (July 21) deleted Kerala High Court's direction that the State Waqf Board shall function under supervision of the government's Joint Secretary/Additional Secretary of government.

The court passed the order in the Board's plea challenging the Kerala High Court's order restraining it from taking major policy decisions over absence of 2 non-Muslim members. The Apex Court meanwhile asked the High Court to expeditiously decide the case.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi ordered,

"In view of the opening line of para 6, where under Board has been directed to not undertake any capital expenditure etc. without leave of the court, we are satisfied that there is no necessity for retention of last line of para 6 of the order. Consequently, the direction that the Board shall function under supervision of jt. secy/Additional Secretary of government is hereby deleted. The Joint secretary/Additional Secretary being a member of Board should continue to function in that capacity. Matter coming up before HC tomorrow. We decide HC to decide expeditiously after giving a fair opportunity to parties to file claims/counter-claims".

During the hearing, senior advocate Jaideep Gupta appearing for the State of Kerala submitted that the high court's order was interim in nature and did not require interference by Supreme Court at this stage. The court however orally asked as to why should the Board for this reason stand handicapped by the restriction.

Meanwhile, senior counsel V Chidambaresh appearing for the Waqf Board said that the ad-interim order was passed behind the back of the Board.

To this the CJI orally said, "We are only concerned with para 6 (restraining policy decisions without leave of Court)".

At this stage senior advocate Huzefa Ahmadi also appearing for the Waqf Board said that February 14 Notification originally appointed 9 members who have a term of 5 years.

"What they want to do is - they want to substitute them with their own people. That's the game. PIL filed by someone who belongs to a political party. Where was the question of saying that Board can't function? And natural justice? I appear before court and say give me time...members of Waqf Board are not served with copy...extraordinary order passed. Section 14 (of the United Waqf Management, Empowerment, Efficiency and Development Act, 1995) does not say that if there is any vacancy, then Board becomes defunct," Ahmadi said.

Ahmadi said that the only ground raised in the High Court order is non-appointment of Non-Muslim members.

Meanwhile Justice Bagchi orally said, "This is an ad-interim order. Question of your prejudice can be taken care of by seeking modification of that order. And we can give that liberty. The extent to which it becomes egregious interference in day-to-day functioning...we will set aside last line".

Chidambaresh said that the board cannot be under the command of government officers and urged that the entire paragraph on this aspect should go.

Ahmadi meanwhile said that the court may delete last line and at the highest, 2 Non-Muslim members could be appointed. CJI however said that the matter was coming up tomorrow in the high court and it will ask the court to decide the case expeditiously.

On July 17, the matter was mentioned for urgent listing by Senior Advocate V Chitambaresh, saying that through an interim order without notice to the other side, the Board had been made virtually defunct. The senior counsel pointed out that in a similar order concerning the Tamil Nadu Wakf Board, the Supreme Court had granted interim relief.

To recap, the High Court passed the restraint order after noting that the State Wakf Board was constituted without including two non-Muslim members and one Shia member as per the mandatory requirements introduced as per the 2025 Waqf Amendment Act.

Acting on PILs filed challenging the State Wakf Board constitution, the High Court Division Bench of Chief Justice Soumen Sen and Justice Syam Kumar V.M. prima facie found that the Board is not constituted in accordance with Section 14 of the Unified Waqf Management, Empowerment, Efficiency, and Development Act 1995 due to the absence of 2 non-Muslim members and one Shia member.

"In view of the fact that admittedly, two non-Muslim members have not been included in the Waqf Board and also, as urged by some of the writ petitioners that one Shia member should also be included, we hold that the constitution of the Board prima facie appears to be not in conformity with Section14 of the said Act. Hence, the present Board shall not take any major decisions or incur any capital expenditure or any policy decision without the express leave of this Court," the High Court ordered.

Board's arguments in the Special Leave Petition

The Board's central submission is that the High Court ignored Section 22 of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995, which expressly provides that vacancies or defects in the Board's constitution do not invalidate its proceedings.

According to the petition, the absence of two non-Muslim members cannot render the Board dysfunctional, as the statute specifically protects the validity of its actions despite vacancies. The Board argues that there is "no law that all the members in the Waqf Board should be nominated at once."

It submits that only the State Government has the power to supersede a Wakf Board under Section 99 of the Act, and that too only after satisfying stringent statutory requirements, including prima facie evidence of financial irregularity, misconduct or abuse of powers, and after issuing a show-cause notice to the Board.

The High Court, it contends, could not impose restrictions that amount to supersession without following the statutory framework.

The petition claims the Board was denied a meaningful opportunity to respond, causing serious prejudice.

The petition maintains that the Board cannot be faulted for the absence of two non-Muslim members because appointments are exclusively the responsibility of the State Government.

It points out that the Government itself informed the High Court that it was prepared to reconstitute the Board in compliance with Section 14 and had even sought dismissal of one of the connected PILs.

The petition further attributes the delay to the Bar Council elections and the constitution of the new Kerala Legislative Assembly after the April 2026 elections

Among the questions of law framed in the petition, the Board argues that the doctrine of necessity should apply to ensure that statutory bodies continue to function despite vacancies, particularly where the appointments are dependent on the State Government and the Board itself has no role in making them.

The petition emphasises the practical impact of the High Court's order.

It states that the Kerala State Wakf Board oversees more than 89,000 wakf properties and considers nearly 200 matters every week in judicial sittings. More than 600 matters are pending before Wakf Tribunals and over 500 before the Kerala High Court, besides cases before the Supreme Court.

The Board says the interim restrictions would disrupt scheduled judicial sittings, adalats and a 100-day training programme for over 15,000 mutawallis, adversely affecting the administration of wakf institutions across the State.

The Special Leave Petition seeks stay of the High Court's interim order pending adjudication of the challenge.

Case Title: THE KERALA STATE WAQF BOARD AND ORS. Versus SHONE GEORGE AND ORS. SLP(C) No. 24194/2026 (and connected case)