The Kerala High Court ruled on Wednesday that the state government is free to reconstitute the Kerala State Waqf Board and appoint statutorily mandated non-Muslim members to the board on an interim basis so that the Board can continue to function.
A Division Bench comprising 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 although it could not order the removal of current members, the state has the authority to fully reshuffle or reconstitute the Board if deemed necessary.
“We cannot say that the existing member has to go…For the time, 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 a certain time. In the meantime, without prejudice to your contentions, you can appoint two non-Muslims,” the Court observed.
The Court 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, .” the court said
On Tuesday,, the Supreme 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 on Wednesday 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 Court asked
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.