By Faizan Mustafa,
The apex court in its landmark decision on 7th July, 2014 held that sharia courts are not courts as Indian legal does not recognize a parallel judicial system. In fact neither Muslim Personal Board nor seminary at Deoband ever asserted that sharia courts are ‘courts’ in the strict sense of the term. But then is it not a fact that privatization of justice is fact of life not only in India but in most developed countries? Does our law not recognize arbitration and other alternative methods of dispute resolution? Are not sharia courts and fatwas different and therefore should not be clubbed together? What has been the performance of sharia courts in last 94 years? Has not the latest decision given new lease of life to the sharia courts? are some of the pertinent issues which need critical examination.
It may be difficult for our television anchors to accept but many jurists do question the idea that all law must necessarily come from the ‘state’. The divide between the socialists and liberals is clearly visible. Liberal scholars openly embrace markets and reject all government. ‘Legal Pluralism’ and ‘Radical Libertarianism’ are well recognized scholarly traditions. There is a consensus that the state is not the only source of law. In several primitive societies, law developed gradually from custom in the absence of any sort of government. History contains many instances of pluralistic legal systems in which multiple sources of law existed. Most commercial disputes in the world are today resolved informally. Most businesses consider a private arbitrator an attractive alternative to a randomly selected government judge. A recent survey of 1,000 of the largest U.S. corporations showed that 79% used arbitration to resolve commercial disputes in the last three years. Thus one of the central functions of state, dispute resolution, is largely escaping the state’s sphere of influence. We are experiencing slow but gradual extinction of our civil justice system. The shift to private, largely unregulated and unscrutinised processes is the global trend.
State attempts to portray its judicial system as one of speedy and impartial justice. But in reality, state courts have many problems. They are often slow at their best and conduits for gross injustice at their worst. At a more fundamental level, no evidence shows that adversarial system which our judiciary follows is the best way to resolve disputes. Whenever parties choose arbitration rather than governmental courts, it demonstrates that arbitration is making both parties better off. United States is witnessing a huge decline in the number and proportion of cases tried in courts. The decline is in fact steepest in contracts and other civil matters. In United Kingdom from April 2013, civil and family claims are now excluded from the ambit of the legal aid scheme and are compulsorily diverted to private mediation. The move has been termed as the ‘economic cleansing of the civil courts’. There is indeed a global shift to mediation as part of a social movement in which parties are increasingly turning to the less ‘brittle’ justice of mediated solutions in which no one loses and rights claims are visualized as problems in search of win-win solutions.
This is the context in which latest decision of the apex court on sharia courts is to be understood as sharia courts reflect the similar trend. Supreme Court refused to ban Sharia courts and did accept that they are in the nature of arbitral proceedings. The Muslim Personal Law(Shariat) Application Act,1937 is the law which tells us in respect of which matters personal law shall apply to Muslims. It is a short enactment of six sections which aims at restoring the Muslim law to all Muslims and doing away with customs contrary to the Sharia. No one can doubt that the ‘Muslim Personal Law’ is indeed law under our Constitution. Article 372 explicitly permits continuance of ‘all laws in force’ at the commencement of the Constitution. Entry 5 of concurrent list also recognizes ‘personal law’ as law in matters of marriage, divorce, adoption, will, succession and partition etc. and gives powers to Parliament and State Legislatures to legislate in respect of them. Thus what to say of sharia courts even state courts including High Courts & Supreme Court do follow Muslim Personal Law in disputes concerning Muslims. In international commercial arbitration proceedings, parties are even free to follow any law or ignore law of their country or even draw up their own law. What is given to top business houses cannot be denied to poor citizens. Thus if citizens out of their own free will want to use sharia courts, they are free to do it and sharia courts are free to follow sharia law as it is an integral part of Indian legal system.
The policy of applying the personal law was inherited by the British rulers from the Moghul rulers; it is well to remember that the principle of Indian law that Hindu law(Dharmashastra) is to be applied to Hindus and Muslim law to Muslims is not a British innovation. It had its origin in earlier times when the Muslim rulers came to realize that it was not just or equitable to force their own notions of law and that each religious community was entitled to profess its own religion and to obey its own laws. In 1726, when Letters Patent was issued during the reign of George I, it enabled the courts to decide ‘according to justice and right’. In the course of time this was interpreted to mean British notions of justice and right, as understood by lawyers trained in the British system. Thus the system known as Muslim Personal Law is the Sharia as modified by English law, both common(decisions by courts) and statutory, and equity, in the varying social and cultural conditions of India. The so called Muslim Personal Law thus became a discrete system, somewhat at variance with its original divine formulations.
For almost a century or so British judges were assisted by Muftis and Qadis in the discharge of their judicial functions. The Qazis Act of 1880 deprived Qazis of any role in the judicial proceedings. The British courts now started pronouncing judgments on Muslim Personal Law without any assistance by Qazis. This development set the stage for the establishment of the sharia courts in Bihar in 1920. The sharia courts of Bihar are widely respected, their decisions have been quoted in approval by the various state courts in eastern India. It may be noted with some interest that no law governing Muslims compel them to necessarily use the forum of state civil courts to settle their disputes. Such a choice is not available in criminal matters. Thus no law prohibits establishment of sharia courts. The decision of Supreme Court has now given a new lease of life to the sharia courts in respect of parties who volunteer to use this forum. Bihar has the most elaborate system with lower and appellate sharia courts. Detailed rules are in place for the registration of cases with all the necessary details of parties, payment of small amount as fee, conducting of in depth enquiries, recording of evidence, identification of issues, holding of hearings with the assistance of lawyers etc. Sharia court decisions also include a statement of facts, discussion on evidence and issues are disposed of with proper citation and reliance on the sources of relevant law. Judgments are subsequently published and courts do act as courts of records. Moreover there is an elaborate system of appeal and revision.
Due to the success of Bihar model, sharia courts have been set up in several states and that’s why neither government of India nor Muslim Personal Law Board denied existence of such courts in the apex court. In Bihar alone approximately 50,000 cases have been amicably resolved with a remarkable degree of compliance. Challenging of sharia courts’ decisions in the civil courts is extremely rare. This means satisfaction level of litigants is very high. Since sharia courts do not follow doctrine of precedent, they have much needed flexibility to give justice according to peculiar circumstances of individual cases. The cases are disposed of in record time which generally does not exceed a year. There has been a steady increase in the number of cases filed with the sharia courts. A study of 94 years of sharia courts’ decisions would show that the courts have been by and large pro- women and have saved hundreds of marriages and generally rendered decisions in favor of destitute women. The apex court was not given aforementioned details about the working of sharia courts and media is also not fully aware of real functioning of these courts. There cannot be any denial of the fact that these courts do not have a highly liberal, progressive and feministic outlook consistent with 21st century women rights.
It may be of some interest to note that sharia courts nomenclature is misleading as these are not courts but simply arbitration councils. In several western countries such sharia councils have been established. In 2008, five sharia courts were set up in U.K., with their rulings enforceable with the full power of the English judicial system. In all, as many as 85 sharia courts are there in United Kingdom.
Fatwas on the other hand are nothing more than an opinion of an individual which is issued without following elaborate procedure of sharia courts. Unfortunately the distinction between the two has not come out clearly in the decision of the apex court. There is no denial of the fact that several fatwas have been issued in the recent past which brought Islam into disrepute and the highest court has rightly held that such fatwas are not to be issued particularly when the interested party had not sought them or they relate to general criminal law of the country. But then if similar questions are asked to Shankaracharyas or ecclesiastics of other religions, we would get almost same kind of ridiculous and absurd responses. Responses based on religious texts can never be progressive as religious scriptures and laws do not reflect modern ideas of individualism, liberty, equality and human rights. But then freedom of speech of Muftis does allow them to express whatever opinion they want to express. In fact fatwas do not deserve the space which our media gives to them.By discussing them on prime time, media gives them respectability. Overwhelming majority Muslims in India hardly attach any significance to these fatwas. Let fellow citizens also ignore them.
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The author is Vice-Chancellor of NALSAR University of Law & Former Dean, Faculty of Law, Aligarh Muslim University.
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