The All India Muslim Personal Law Board recently announced that they are planning to open a Shariat ‘court’ in every single district in India. This obviously led to a controversy, but there has been a lot of uninformed commentary regarding the subject. So I’m writing this to set the record straight regarding a few things.
Shariat is applied as personal law in India, and it is not ‘codified’
Shariat in the simplest sense is Islamic Law that governs all aspects of life. It covers both criminal and civil areas of law. Shariat has been made applicable to Muslims in India via the ‘Muslim Personal Law (Shariat) Application Act, 1937’ by the British. Only the personal law aspects of Shariat are applicable in India – and this is normally the Hanafi Law of Sunni Islam Theology. This does not meant that the community can open ‘courts’ of their own which has state backing. It means that when there is a dispute between two parties regarding a personal law issue, and only if both parties are Muslims, then the court shall apply Shariat as applicable to them rather than ‘secular law’.
[Personal Law is the branch of law that covers aspects related to marriage, adoption, divorce, inheritance etc.]
The Shariat ‘courts’ are not ‘courts’ of our legal system
The Shariat courts that AIMPLB want to establish, or those run by any other organisation at any other part of the country are not state backed courts. Their verdict and will have no enforceability in the eyes of the state. The problem of course is that since these ‘courts’ have the backing of religious organizations, and considering the conservative and closeted nature of the Muslim community in India, the ‘writ’ of these courts will run large. In Vishwa Lochan Madan v. Union of India & Ors., the Supreme Court examined the existence of these courts, and did not rule them illegal. Rather, just like I did right now, it distinguished these courts as an extralegal entity with no illegality. The only restriction that the Judgement placed on these courts was that they could not issue a ‘verdict or fatwa touching upon the rights and obligations of an individual unless has asked for it’.
The argument that the Muslim religious organizations made then was that theses systems were necessary as Alternative Dispute Resolution measures, and I saw at least one prominent twitter account making the same argument.
To quote from the the Vishwa Lochan Madan Judgement:
“[The All India Muslim Personal Law Board] strives for the establishment of parallel judicial system in India as in its opinion it is extremely difficult for Muslim women to get justice in the prevalent judicial system. Further, under the pressure of expensive and protracted litigation it has become very difficult for the downtrodden and weaker section of the society to get justice. Therefore, to avail the laws of Shariat, according to the Board, establishment of Islamic judicial system has become necessary.”
[This is not the court’s observation, it is the submission of the AIMPLB]
“This is to help Muslim women” claimed the AIMPLB in 2014 [courtesy:Economic Times]
This was the argument that the Muslim religious organizations had made then, which the Supreme Court more or less acceded to. Believe them at your own peril.
Another thing to be noted is that there is a constitutional basis to the arguments regarding the activities of these courts. Article 19 (c) affords citizens of India the right to form associations and unions. The activities of the organisation, as long as they are not illegal, cannot be shut down. The organisation of these ‘courts’ by itself are not illegal – the Supreme Court itself called it ‘laudable’ (when noting in the next breath their extra legal status).
In conclusion, Shariat courts are no ‘courts’. They are extralegal, but not illegal.
[Note: The Kerala High Court recently ordered the state government to form rules under the above mentioned Shariat Applicaiton Act, to certify authorities who themselves can certify conversions to Islam.]