Breaking| Supreme Court Stays Madras High Court Order Halting Functioning Of State Waqf Board For Non-Inclusion Of Non-Muslim Members

The Supreme Court has stayed the operation of the order passed by the Madras High Court, which restrained the State Waqf Board from exercising any powers and functions after noting that the mandate of two members of the Board being non-muslim was not fulfilled.

The High Court also noticed that there was no nomination of any Member of the Bar Council of the State as mandated under the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995.

The Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M Pancholi ordered, "Issue notice. Meanwhile operation of the impugned order passed by the High Court has been stayed."

Senior Advocate P Wilson appeared for the Petitioners.

Wilson submitted, "The High Court by the impugned order has injuncted the functioning of a Waqf Board...8 members are appointed. Only three are remaining. High Court says with this the board cannot function."

The Court remarked, "Of course the High Court is wrong. Madras High Court order rendering the board defunct is stayed. Doctrine of necessity has to function. Let us know on next date who can be these three members also."

Background

The Waqf Amendment (UMEED) Act was passed by the Lok Sabha and Rajya Sabha on April 3, 2025 and April 4, 2025 respectively; thereafter the Amendment Act received Presidential assent on April 5; and by virtue of GO S.O. 1646(E), the Central Government appointed the 8th day of April, 2025 as the date on which the provisions of the said Act shall come into force.

In the meantime, a batch of petitions was filed before the Supreme Court challenging the amendment's validity including by Congress Member of Parliament (MP) Mohammad Jawed and All India Majlis-e-Ittehadul Muslimeen (AIMIM) MP Asaduddin Owaisi and came up for hearing. The Supreme Court, in the interim order in the case of In Re. The Wakf Amendment Act, observed as under: “183. Similarly, insofar as the Board under Section 14 of the Amended Waqf Act is concerned, prima facie, it appears that 7 out of 11 members can be non-Muslims. It can be seen that insofar as categories covered under clauses (a), (b), (d), (e) and (f) of sub-section (1) of Section 14 of the Amended Waqf Act are concerned, there is no requirement that the members have to be from amongst the Muslim community. It is only the category covered under clause (c) of sub-section (1) of Section 14 of the Amended Waqf Act, where it is required that a member has to be from the Muslim community."

It also held, “184. We, however, do not wish to go into the question qua inclusion of non-Muslim members amounting to interference in religious practices, at this stage, inasmuch as the learned Solicitor General has made a categorical statement that the number of non-Muslim members in the Council as provided under Section 9 of the Amended Waqf Act would not exceed 4 and they will not exceed 3 in the Board as provided under Section 14 of the Amended Waqf Act. “185. However, in order to avoid any ambiguity, we propose to issue a direction that the Central Waqf Council should not have non-Muslim members exceeding 4 in number and 3 non-Muslim members insofar as Board is concerned.”

The Petitioner has stated that from a bare reading of Section 14 of UMEED Act, it is crystal clear that in order to complete the constitution of the Board under Section 14 of the Act, there has to be at least two persons nominated under Clause (d) and one person nominated under Clause (f). It said that it appears that under Clause (d), only one person has been nominated, whereas there is no nomination of any Member of the Bar Council of the State under Clause (f).

It was submitted by the Petitioner that by order in November 2025, the State Government represented by first respondent constituted a New Board but failed to appoint one person from the Bar council of Tamil Nadu as mandated by Section 14 (f) of the UMEED Act and failed to comply with the second proviso to section 14 of the UMEED Act which mandates that two of total members of the Board appointed under this sub-section, excluding ex officio members, shall be non-Muslim. The constitution of the Tamil Nadu Waqf Board is contrary to the law.

The Division Bench of High Court held, “Furthermore, the mandate of second proviso that two of the total members of the Board appointed under Sub-section (1), excluding ex-offico Member, shall be non-muslim has also been not fulfilled. May be, in future, while appointing one out of two Members under Clause (d) and one under Clause (f), respondents may proceed to appoint two non-Muslims. The constitution of the Board as exists today, prima facie is not in accordance with the provisions of law.”

Accordingly, the Supreme Court issued notice in the matter and listed the matter after two months.

Cause Title: Tamil Nadu Waqf Board v. The State of Tamil Nadu [Diary No. 7842 of 2026]