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Shariat Courts Are Counselling And Arbitration Centres, Not Parallel Justice System

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In July 2018 the All India Muslim Personal Law Board (AIMPLB) proposed to establish ‘Shariat courts’ all over the country. The proposal has faced stiff criticism from the people of different communities, and there’s a misconception that it is an attempt by the minority community to set up a parallel justice system in the country. But such apprehensions, which are based on rumours and wrong information, are neither justified nor good for a diverse country like India. To strengthen our national integrity, we must know the truth and spread awareness about it.

So, the first question which comes to our mind is -what are Shariat courts? Since the beginning of the twentieth century, an institution called the Dar-ul-Qaza which means- ‘house of judgement’ known in common parlance as the ‘Shariat courts’, has been operating in many parts of the country. ‘Shariat courts’ are counselling and arbitration centres and not the actual law courts of the country.

According to the Supreme Court judgement in Vishnu Lochan Madan vs. Union of India & Othrs (2014), ‘Shariat courts are not courts’ because the Indian legal system does not recognise a parallel judicial mechanism. However, the Apex court refused to deem them unconstitutional because ‘Shariat courts’ resolve family disputes by applying principles of Islamic law through the voluntary process of alternative dispute resolution (ADR) which is also not binding on both consenting parties. It means they can further approach to civil courts in case of dissatisfaction.

In other words, we can say that it is essentially an arbitration council headed by a Qazi, a scholar of Islamic law, who acts as a judge. One may say that Shariat court’s arbitration process is strictly confined to Islamic law whereas in the standard arbitration process parties are free to choose law and nominate their judge, but it generally happens in the corporate world. The Personal Law Board is a parent body which runs many ‘Shariat courts’ in India.

Now, why there’s a need for ‘Shariat courts’ or why such courts are existing? The direct answer is the case overload on our civil justice system. As a result, there’s an emerging trend of Alternate Dispute Resolution mechanisms. The plan for establishing such ADR mechanism has rightly been termed as the “economic cleansing of the civil courts”. Governments across the world such as the UK favour ADR as it saves public money.

The problem of pendency of cases is getting big enough to create an alarming situation. As per the two reports issued by the Supreme Court — ‘Indian Judiciary Annual Report 2015-2016’ and ‘Subordinate Courts of India: A Report on Access to Justice 2016’, around 2.81 crore cases are pending in District courts. Now, whether or not the government is trying to solve this problem or not is a different issue altogether, but if there is an option available to us to reduce some amount of burden from judiciary, then there is no wrong in it provided that such system is also in conformity with the law of the land. It must be noted that ‘Shariat courts’ have amicably resolved more than 60,000 cases in less than a year’s time.

If we talk about the relevance of such courts in India, then such courts are widely respected for putting in place elaborate procedures for the determination of issues, systematic recordings of testimonies and speaking orders. As of now, around 100 such courts have been functional for decades in India. These courts are known for delivering speedy and inexpensive justice to the poor section of the Muslim community.  Some orders of the Shariat courts have been quoted by the approval of the formal courts.

The significance of ‘Shariat courts’ is such that a majority of Muslim women consult these courts to get divorced or to seek the dissolution of their marriage. And further, proper observation will tell us that these courts never grant triple talak, and always prefer the Quranic procedure of divorce. Also, ‘Shariat courts’ do not administer the criminal law nor do they issue fatwas. It is true that their orders are not binding and lack legal sanctity. However, it is legal if all the concerned parties want to comply with their orders.

There has been a steady increase over the decades in the number of cases filed in ‘Shariat courts’, and it is a fact that very rarely decision of a ‘Shariat court’ has been challenged in a civil court. In this way, these courts are not invading our judicial system, but are working as another counselling NGO. Thus there is nothing new in the AIMPLB’s proposal to establish ‘Shariat courts’.

Therefore, this proposal should not be used in such a way that ruse to polarisation. Yes, there is a need to bring certain changes like replacing the last word ‘court’ with any suitable word and spread awareness about it so that it doesn’t create any confusion among the masses. And, each Shariat court should ideally have at least one woman judge. Alternatively, we should try to increase All-Woman Sharia Courts across the country because such courts are doing excellent work in Mumbai. At last, as we are trying to be a progressive society, so there is need to imbibe modern values.

The author is a student of law in 5th year at Dr. Ram Manohar Lohia National Law University, Lucknow. 

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