This article is written by Mahelaka Abrar, from the Faculty of Law, Aligarh Muslim University. In this article, she presents a detailed overview of the legal sanctity of Sharia courts in India. She also addresses the much debatable question whether these courts are acting as a parallel system of justice or not.
India is a place of diverse communities. It is difficult to bring every community under the umbrella of the same laws. Therefore, each community has been given the liberty to govern itself through personal laws for matters pertaining to marriage, divorce, maintenance, succession, inheritance, and the likes. These laws are largely influenced by the customs, beliefs, and values of the native communities.
The personal laws of communities have often been under the limelight and criticized for perpetuating biased gender roles, inequality, and discrimination. The Muslim personal law based on Sharia has received the most flak, in this regard. It has been frequently condemned for being oppressive, unfair, and for limiting women of their rights. While on the other side of the spectrum, Muslim scholars argue it to be the most liberalising, fair and upright set of laws. This brings us to an important question as to what Sharia laws are?
What is Sharia law?
The word ‘Sharia’ is used by Muslims in many ways. It could be denoted to mean ‘the right Islamic behaviour’ or to classify more broadly, ‘the Muslim way of life’.
The history of Sharia laws could be traced back to the history of Arabia and to the teachings of the Islamic Prophet, Muhammad. The basic source of Sharia is the Quran and Sunnah ( sayings and deeds of Prophet Muhammad). Besides this, there are a number of principles in Sharia laws that Muslim scholars and interpreters have propounded over time for solving matters which, sometimes, do not find a place in the Quran or Sunnah or for solving problems of modern nature. These interpretations are called ‘fiqh’ (literal meaning: understanding). The corpus of jurisprudence that has been produced by Muslims over centuries is in fact, fiqh (which is often thought as Islamic law or Sharia). It is important to keep in mind that fiqh is a result of human efforts and interpretations, therefore, it is contestable and fallible.
There is no single ‘lawbook’ for Islamic law that can be referred to by a qazi or judge. Since fiqh is a vast collection of different, often competing interpretations of the basic sources (Quran and Sunnah), there is always diverse and new fiqh to be found.
This means Islamic law is not as rigid and frozen as they are stereotypically imagined to be. It is also significant to understand that institutions claiming to be ‘applying the Sharia laws’ are, in fact, imposing laws which contain a mixture of Islamic legal principles, fiqh, local customs, European law derived from the colonial period, and civil law developed since independence.
The Sharia courts in India is one such institution.
What are Sharia courts and how are they different from other courts in India
Sharia courts are those ‘courts’ which seek to safeguard and enforce Sharia laws. These courts are traditionally called “Darul Qazas” (or house of qazi). These Sharia courts are not courts in their strictest sense but more of a counselling and arbitration centres. They are popular because they are accessible, informal and voluntary institutions that provide speedy and inexpensive justice especially to the poor. Muslims can approach these courts and seek the advice of the qazis (who preside over these courts), as they are believed to be experts on Sharia laws and capable of providing a decision that is in consonance with Islamic beliefs. They are often approached by women to resolve matters related to divorce, marriage or maintenance.
Currently, the Sharia courts in India are managed and promulgated by the All India Muslim Personal Law Board (AIMPLB).
The existence of these courts have often been controversial and the centre of debate in the Indian Personal Law disclosure. While they enjoy considerable support among many Muslim communities and have a religious sanction, they do not find a place in the Indian Constitution. These courts also find themselves in difficult situations due to their controversial fatwas or verdicts. While a section of Muslims is contesting for there prohibition on these grounds others are seeking there restrainment on the threat that these courts are trying to run as a parallel justice system in the country.
Sharia courts not parallel to the justice system
Amidst the decision of the All India Muslim Personal Board (AIMPB) to establish Sharia courts in every district of India, it has received backlash from some sections of society on the contention that it constitutes a parallel system of justice. This has been, however, rejected by the AIMPB board, and rightly so. The AIMPB asserts that these courts are run within the ambit of the Constitution and the question of enforceability of the verdict given herein do not arise. The board further notes that the decision given in Sharia courts is just a verdict on a particular matter in the light of Sharia and the verdict cannot be enforced nor used as a precedent since the Qazi is not an enforcement agency.
It has also been held by Supreme Court in Vishwa Lochan Madan v. Union of India and others (2014) itself that the fatwas or Islamic edicts given by the Sharia courts have “no place in independent India” and these must not be used to punish the innocent. The court further noted that the advice of these are not binding and the parties are free to accept or reject it. The verdict also solely referred to Sharia Courts as “informal justice institutions” with “laudable objectives” but no legal sanction. The judgment further mentioned an invitation to penalisation in case of abrogation of fundamental rights. The rationale behind lack of legal sanction being given to such Courts stems from the belief that “power must flow from a valid source”.
Furthermore, it also rejected the petition to ban Sharia courts in India and vindicated the petitioner’s contention that such courts are acting as a parallel system of justice on the grounds stated above.
Working of Dar-ul-Qaza
The functioning of Sharia courts or Dar-ul-Qaza is different from the normal courts. There is a much higher degree of flexibility with a difference in things which could be admissible as witness or people eligible for being a witness. However, the basic manner of working of the normal court is adhered to such as the presence of a judge, admissibility of evidence and witnesses, declaration of the verdict, etc.
The following points as to the working of Sharia courts may be noted:
- They do not necessarily require the presence of a lawyer and the parties concerned can argue their cases by themselves before the judge.
- There is no jury system to preside over a matter and therefore matters are presented before a single judge called Qazi who judges upon uncodified principles derived from Sharia rather than on legal standards.
- There is an absence of any fixed or rigid court procedure and as a result, proceedings take place as casually as possible.
- The parties in dispute are required to be Muslims and the principle of privity of contract is followed.
- The verdict of the Sharia courts creates a non-binding effect on the parties. Hence, the parties in dispute can choose to either follow or ignore the pronouncements so given.
The constitutional validity of Sharia courts
The Indian Sharia courts have existed from the pre-British era. The major question surrounding them is whether they have any legal backing or not, or if they are sanctioned by any legal provision enshrined in the constitution that validates its verdicts or judgement. To know that, it is needed to dive a little back in history.
To know about the existence of Sharia law and Sharia courts, it is necessary to look into the history of the emergence of Muslim personal law and the concept of “Muslim identity” that was prevalent in the past.
When the British established their rule in India, one of the major steps they took was to codify different laws of India to serve their own purpose. However, the personal laws of Muslims were not codified so extensively. As a consequence, Muslims continue to regulate their lives using local customs and laws. A number of matters of everyday life including divorces, marriages, property disputes were settled using these laws. The Sharia laws did exist, even at that time but people rather chose the local laws to govern themselves. This, in turn, confused the courts as to whether the application of Sharia or local laws was to take precedence in deciding such cases.
To end this confusion, the Privy Council (the highest court of Appeal in British India) allowed the usage of both- Sharia and customary laws as they were equally important in regulating the lives of Indian Muslims.
During the early 20th century, India was undergoing turmoil due to the rising demands for independence. The British, as a response, sought to implement the “divide and rule” strategy. The 1930s, therefore, saw the rise of the Muslim League in India, whose main aim was to have a separate nation for Muslims. Thus, for them, the creation of a “Muslim Identity” was essential to invoke Muslim nationalism. One of the main ways in which they could accomplish this was through the codification of laws linked with the Shariat – this would help Muslims associate more with fundamental Islamic principles and effectively mobilise them to demand a separate state. In this process, the Shariat Act of 1937 was passed. To ensure effective applicability and enforcement of this legislation and Islamic customs, Sharia Courts functioned in India. Over the years, Sharia and Sharia Courts became part of the Muslim lifestyle.
In this regard, it is evident that the Shariat Act was passed to give Muslims a separate and distinguished identity. Even today, Muslims constitute the largest minority in India. In light of such circumstances, it becomes inevitably necessary to protect the identity of these minorities. This is also mandated by Article 25 of the Indian Constitution which talks about freedom of conscience and free profession, practice and propagation of religion. The Shariat Act was passed in 1937 before the commencement of the Indian Constitution. Furthermore, it is in no way a derogation of fundamental rights for it solely separates the paradigm of Islamic Personal Law’s applicability in India. Therefore, even in the context of Article 13, this law is deemed valid. In cases of Muslim Personal Law, the Quran is the closest source of having a full-fledged personal law. Thus since the sole function of Shariat Courts is to decide verdicts on the basis of constitutionally adherent legislations, they can be allowed to exist and issue fatwas.
This sanction, although not exactly legal, is highly religious and has a historical backing. It is, however, indirectly a legal sanction because the laws that it seeks to enforce are legally recognizable.
Article 13 read with Article 372 of the Constitution of India allows all those acts made before the enactment of the Constitution to exist so long as they are not in derogation of the fundamental rights envisaged by the makers. The existence of Sharia Courts can be proved under this Article in two ways: Firstly, as described above, the laws that these Courts seek to enforce are neither against the spirit of the constitution nor go against fundamental rights thereby providing them legal sanction. Therefore, in a way, Sharia Courts too are legally sanctioned.
Secondly, it can be argued that since the wordings of Article 13 do not specifically mention the words “Personal Law,” the entire foreplay of Personal Law is not covered under Article13’s prefatory declaration. The Shariat Act is not a codified law which deals with procedures of Muslim personal life; it only specifies the ambit of matters falling under Personal Law. Conversely, Muslim Personal Law is not even “custom and usages” in the strictest sense of the term because it consists of the Koran, which is neither a composite source of law nor a custom in totality. Furthermore, the Shariat Act is not historically a “state-made law.” Hence, the entire domain of Muslim Personal Law and its application is meant to be excluded from the formal legal system. Personal Law institutions like Sharia Courts are meant to be the sole deciding authorities in matters of Personal Law. It is for this reason that the recent Supreme Court judgment in Shayara Bano, and Ors.v. Union of India was heavily criticised.
According to the Delhi High Court in Arya Samaj Education Trust, Delhi v.The Director of Education, Delhi, Muslims formed a religious minority in India as they claimed separate political rights from the majority Hindu religion before the making of the Constitution. Furthermore, Muslims form a cultural minority owing to a different script (Arabic) being followed by them. This is important to understand as Muslim Personal Law and its institutions can derive constitutional sanction owing to the minority status of the community.
Examining the existence of Sharia Courts vis-a-vis Article 29 (1), we observe that Sharia Courts can be deemed as a considerable way to “conserve” the interests of the Muslim minority in India. Protection and enforcement of their own personal laws through the Shariat Act is a method whereby Islam can preserve the principles of its religion. Banning, or not allowing Sharia Courts to exist can be deemed violative of Article 29 (1) read with Article 15(1), for this can arguably lead to discrimination against a minority, indirectly preventing self-governance of their people by the beliefs of their own religion. This is also envisaged by the constitution-makers in Article 25 (1) in the form of freedom of religion.
Furthermore, the said ban or disallowing of Sharia Courts will subsequently become violative of the principle of “equality before the law” as envisaged under Article 14. Since Sharia Courts are not essentially “courts,” they can fall under the definition of “religious institution” and are protected under Article 26. Lastly, not allowing these institutions to exist is also violative of Article 21. This is because if Sharia Courts are functioning due to the desire of the Muslim community and approaching them is entirely optional, they can reasonably fall under the “personal liberty” granted to each individual, and therefore saying that they are institutions inconsistent with the Constitution goes against the spirit enshrined in Article 21. The Apex Court has broadly construed the scope of this article in Maneka Gandhi v. Union of India, extending the ‘right to life and liberty’ to a ‘variety of rights.’
Therefore, on examining all the above Articles and their adherence, it can definitely be inferred that Sharia Courts do have a kind of legal sanction, for, although no legislation or even the Constitution explicitly addresses their existence, none is actually fundamentally against it.
Questioning the legal sanction
However, having religious sanction does not imply having legal sanction as well. While Article 13, 14, 25 (1), 29 (1) provide for safeguarding the rights and interest of the minorities, they do not necessarily direct to set up institutions like that of Sharia courts.
In addition to that, it also may be noted that religious practices are often regressive when compared to contemporary society. While the practice of infamous customs like that of Sati, dowry, the prohibition of widow remarriage which enjoyed a place in Hindu Personal Laws since centuries has been struck down, it is equally needed to introspect such harsh and discriminatory customs followed in the names of personal laws. While religious institutions like that of Sharia courts will uphold anything in the name of religion, they, on the other hand, also likely go contrary to the principles of Article 14 and Article 21 enshrined in the constitution.
Given the history, the fatwas of Sharia courts are sometimes discriminatory and contrary to the provisions of the constitution. Since their verdicts are basically interpretations of Quran and Sunnah, it is highly possible that they would be diverse and different. This, in turn, may invite another type of conflict and discrepancy.
Sharia courts in principle, do lack legal sanctity in India. Although, it could be said that there are excellent arguments to justify their existence and provide them with the legal sanction. The Supreme Court has explicitly rejected the contention that these courts are acting as a parallel system of justice and labelled them merely as “informal justice institutions”. Therefore, these courts cannot produce verdicts that are binding on an individual or infringe the fundamental rights vested in the citizens of India. However, there controversial and sexist fatwas have often come under the limelight and given these courts an impression of an institution trying to perpetuate patriarchy and discrimination. While the current legal scenario doesn’t render the existence of these courts as illegal, their controversial verdicts still remain a challenge and point of concern for a developing country like India.
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