The All India Muslim Personal Law Board (AIMPLB) announcement of constituting Darul Qaza (sharia courts)’ in every district of India to address legal issues in line with Islamic laws has stirred a hornet’s nest. While the Hindutva elements see this declaration as an attempt by the AIMPLB to spread its religious agenda through these courts and to assert its superiority and relevance in the lives of the Muslims, the AIMPLB is viewing the opposition to its declaration by the saffron brigade as an attempt to suppress the community’s identity and interfering in eroding the Muslims religious rights. They say that those opposing this move do not wish to see Muslims progress and remain under the thumb the majority community.
The AIMPLB is adamant to continue with its decision. The cost of running one Sharia court is Rs 50,000 and the Board is considering ways to garner this money. There are at present 40 Sharia Courts in Uttar Pradesh.
Explaining the AIMPLB move, senior Advocate and senior member of AIMPLB, Zafaryab Jilani said that the main objective of these Darul-Qazas is to resolve matters in light of Shariat laws instead of going to other courts. Terming these courts as “fully legal” he said that the Sharia Courts are upheld by the Apex Court and those who say they are not must first check their facts. Jilani stressed that these courts are essential and are required for the proper counseling of the Muslims under the guidance of laws of Sharia.He said that by increasing their number the AIMPLB is ensuring speedy justice and un cluttering the pressure on courts too.
Set up in 1973, the AIMPLB is a non-government organisation and is the highest decision making body on Muslim affairs,. The sole aim of constituting this body was to adopt for the minority suitable strategies for the protection and continued applicability of Muslim Personal Law in India, most importantly, the Muslim Personal Law (Shariat) Application Act of 1937. It provides for the application of the Islamic Law Code of Shariat to Muslims in India in personal affairs.
Recently the AIMPLB has come under a lot of flak, especially from women activists due to the Board’s inability to resolve the Triple Talaq and halala issues which gave the BJP to use them as election issues and later as government the BJP tried to settle them in legal courts. This presented a very sorry picture of the AIMPLB and it was charged of doing practically nothing for the welfare of the Muslims especially Muslim women.
It is being said that by announcing its intention to increase the number of sharia courts the AIMPLB is attempting to save face and show that it is concerned about the welfare of its community. But there seems a sharp division in the opinion on this issue-both within and outside the community.
When approached by Uday India to speak on this issue, Uttar Pradesh Minister for minority affairs, Mohsin Raza dismissed the entire sharia court issue in just one sentence “Sharia courts Islam ka hissa nahi hai to phir yeh bahas kyu,”(Sharaia courts are not part of Islam so it is useless to engage in any debate on it.).He also categorically stated that there was no need for these courts in a democratic country like India.
Manish Shukla, BJP spokesperson, while endorsing the views of Mr Raza went a step further and called Sharia Courts as ‘unsamvidhanic’(unconstitutional).
Shukla said that the very word ‘court’ used for these is highly misleading and objectionable. He said that when India has a proper recognized democratic Constitutional and legal system there is absolutely no need to run these parallel courts for just one particular community.
“Agar humney sharia courts ko maniyta dee to phir to hamein khaap panchayato ko bhi manta dena hoga,” (If we recognise the sharia courts we will also have to recognize the khap panchayat).Shukla said that that our Indian legal system is perfect and is fully equipped to deal with the legal issues of its entire nation and that there was absolutely no need to create any other separate community based legal institution.
Leading Mumbai based lawyer and social activist Abha Singh seemed in sync with Manish Shukla.
“Sharia courts cannot be allowed under the Constitution of India, which clearly provides equal protection of laws as well as equality before law,” said Abha, who is also working on women empowerment through several initiatives in education and healthcare.
Abha said that the Supreme Court has time and again reiterated that India has single judiciary under the apex Court and all country men can seek legal justice under it.
This makes it clear that “no alternate form of legal redressal is allowed under the present indian judicial system”, she said adding that that is the reason that SC has declared “khaps and khan” type organization as illegal. Sharia courts on this ground cannot have legal sanctity.
“When Islamic countries do not have sharia courts how can we can even think of having them in a secular, democratic Republic like India” she said Abha also said that while there is right to religion this is checked by public order morality and health aspect. She said that while the Constitution gives us some Fundamental Rights and the freedom to practice a religion of your choice is one such right but the Constitution also has the right to impose “Reasonable restrictions’ on these Fundamental Rights in the larger interest of Society Thus she said that in this case the restrictions on Sharia Courts is absolutely justified.
Coming down heavily on AIMPLB announcement to increase the number of sharia courts Abha said “It is the morally and mentally bankrupt religious bodies that are talking of sharia courts.”
Another lawyer Ashish Shukla had more moderate views on the issue. While he did not advocate banning these courts he said that they can function alongside the Indian legal courts as “forum for alternative dispute resolution.
His reactions, he said, was based on the fact that Muslim leaders like Owaisi and others have labeled Sharia Courts thus.
Shukla said if this be so these courts should be welcomed and there should be neither controversy nor doubt on either their existence or increasing their number.
Women activist and one who fully supported legal teeth for the banning of Triple Talaq, Naish Hasan is totally against these Sharia Courts. She questions their very foundation which she says is not just undemocratic but also ant-women.
According to Naish, these courts are neither based on the Quran nor come under the Indian Constitution.
“When women are not given equal rights by these custodian of Islam how can they hope for justice from them,” said the activist who has always fought against what she terms as a tendency to suppress Muslim women by the clergy.
“Sharia courts cannot replace a judicial court in a secular country like India,” said Syed Habib Haider, a Lucknow based Shia cleric. Asserting that the average educated Muslim seems to have no faith in the functioning of such institutions of justice he said Sharia courts are okay as long as they function for spreading Islamic laws, solving family disputes and giving spiritual cum religious consultancy .to Muslims. But if they act as a parallel judiciary system in a secular and democratic country this will not be accepted and will have an adverse effect. He also had grave doubts about their very basis of dispensing justice.
“Sharia courts have led to sheer exploitation of women as there is lack of religious competency among the so called clerics who man them,” said Haider. He said that the other minorities in India do not have such courts and this creates a lot of confusion, hampers and often delays justice In mkany cases the verdict of these Sharia court have failed to get the desired results and the unsatisfied justice seeker had to eventually approach the legal court again. This has resulted in loss of time and in many cases there is loss of trust on these courts.
Surendra Rajput, Spokesperson UP Congress, presented a different side of the coin. He said that it is very clear that the controversy has been strategically created to fan the Hindu Muslim divide preceding the crucial 2019 Lok Sabha polls.
Terming these Sharia courts as “centers of arbitration and counseling”, Rajput said that the very nature of these courts is of resolving matters, chiefly pertaining to family and society. As the decisions have no legal sanction they cannot be implemented legally and thus they can at best be termed as the process of arbitration. Rajput said it is wrong to say that these courts are violating any legal sanctity or are unconstitutional and undemocratic . Rajput said he does not see sharia courts as an act of violating the Indian legal system because Sharia courts do not have legal sanctity so they do not challenge any Indian court of law .
“These facts are known and there is no conflict but the BJP is purposely projecting Sharia Courts in poor light and showing them as an attempt by the Muslims to consolidate themselves through these courts,” he said.
“Mediation is welcome but running own courts is definitely not,” is the view of the controversial chairman of the UP Shia Waqf Board, Syed Waseem Rizvi. He said that it seems ok if these are named as ‘Mediation centers’ but if projected as courts it is is illegal and cannot be allowed. But there are many, especially among the lower income group, mainly illiterate Muslims, who support the Sharia courts and feel that they dispel justice under Islamic laws and thus are ideal for Muslims seeking justice.
A Bijnore based businessman, who did not wish to be named said that these institutions in fact lighten the burden of the courts by settling many disputes pertaining to petty disputes at the grassroot level. This helps to lightening the burden on the courts and thus are in fact helping in faster legal justice dispension.
There are both pro and against views on the increase in the number of Sharia Courts. But one thing is for sure that for the AIMPLB, which had lost face due to the triple talaq and halala issues, this is an attempt of trying to keep intact its credibility and establish its importance among the Mulsims of India.
By Kulsum Mustafa from Lucknow