Saturday, Nov 01, 2014
Express News Service | Posted: July 8, 2014 12:05 am

The diktats of shariat courts have no legal sanction, the Supreme Court has held, prohibiting them from issuing decrees that touch upon the constitutional rights of Muslims “unless they have asked for it”. The verdict is significant for three reasons: one, it categorically affirms that a fatwa cannot be enforced before a court of law. Two, it constrains the shariat court from intervening in cases where it has not been approached by the individual. Three, it cautions shariat courts from issuing fatwas that violate fundamental rights and freedoms.

If the court had to assert that shariat courts are not a “parallel” justice system, it is because the All India Muslim Personal Law Board, which administers them, has increasingly sought to circumvent what it perceives to be judicial “interference” in the application of Muslim personal laws. Several shariat court “judgments” have been blatantly discriminatory against women, for instance. In the case in question, the Supreme Court’s attention had been drawn towards a fatwa issued by one such court, asking a woman to desert her husband and live with her father-in-law who had allegedly raped her. Neither the woman nor her husband were party to this case. Far from addressing this, and other egregious instances of rights violations that lawyers and women’s organisations have documented, the AIMPLB has simply sought to insulate Dar-ul-Qazas from criticism. Now, it faces the sharp scrutiny of the Supreme Court.

The SC did not mandate “dissolution” of shariat courts, as urged by the petitioner. The court has acknowledged the role of “faith and belief” in these institutions and left the door open for parties to consult clerics to adjudicate or mediate disputes. If the SC has struck a fine balance between respecting constitutional rights and religious conventions, it is now for the AIMPLB to set its own house in order.

One of the important goals that shariat courts claim to serve — speedy and effective dispute resolution — is far from being achieved. A 2006 study by the New Delhi-based Centre for Women’s Development Studies found that only 6,433 cases had been adjudicated by the 22 shariat courts instituted by the AIMPLB across the country since 1973. Down the years, the personal law board has made some noises in the direction of “reform” but it often views the civil justice system as antagonistic. The court’s message to the AIMPLB is clear: if it wants Muslims to approach the Dar-ul-Qazas for resolving conflicts, the board must first ensure that all parties are treated fairly, without compromising their civil liberties.

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