On 7-8 July, an unscrupulous controversy erupted in media targeting All India Muslim Personal Law Board’s (AIMPLB) proposal to open dispute resolution facilities at the district level. They called it “Dar al-Qada” a term used in Islamic Era for the office of a Judge, Arbiter or Magistracy.
Dar al-Qada, literally means “the house of the Qazi” where Qazi stands for a sharp-minded pious Muslim scholar having good knowledge of Fiqh (Islamic Jurisprudence) and trained to adjudicate upon disputes. The Qazi is duly designated to assist/ guide the parties who approach to him, and to pronounce a fair, just and humane resolution in the light of Islamic teachings.
In the Islamic Era, Dar al-Qada was a part of a well-organised judicial system known as “Nizam-e-Qaza”. Qazi was authorised by the state to adjudicate civil as well as criminal matters. His orders were implemented through the State apparatus. In contemporary India, this term of “Dar al-Qada” – broadly translated as “Sharia Court” – is quite a misnomer for the office of the Qazi created by AIMPLB, Imarat e Sharia, JuHind and other NGOs because they do not have the power to call a witness, a party or implement an edict. The character of such institutions is also quite different from the “Dar al-Qada” of the Muslim Era. As Prof. Bittoo Rani described in her research paper, “The sharia courts are characterised as informal institutions as they lie outside the threshold of the state-sponsored formal justice system, operate at the local and community level and are manned by non-state actors”. (“Sharia Courts as Informal Justice Institution in India”- Journal of Humanities, Social Sciences and Education – Sept. 2014)
SC Judgment
This status of Dar al-Qada has also been made clear by an SC Judgment (WP (Civil) No. 386 of 2005/ Vishwa Lochan Madan v/s Union of India and others, July 7, 2014). In this case, “the petitioner had sought a declaration that the movement/activities being pursued by AIMPLB setting up of Dar al-Qada (Muslim Courts) and Sharia Courts are absolutely illegal, illegitimate and unconstitutional.”
And “that the judgments and fatwas pronounced by authorities (Qazi/Mufti) have no place in the Indian Constitutional system, and the same are un-enforceable being wholly non-est and void ab initio.”
The petitioner sought directions from “the Union of India and the States concerned to forthwith take effective steps to disband and diffuse all Dar al-Qada/ Shari’ah Courts and to ensure that the same does not function to adjudicate any matrimonial-disputes under the Muslim Personal Law.” His prayer was, “to restrain the respondents from establishing a parallel Muslim Judicial System, inter-meddling with the marital status of Indian Muslims and to pass any judgments, remarks or fatwas and from deciding the matrimonial dispute amongst Muslims.”
Lastly, he prayed, “to direct the AIMPB, Darul-Uloom Deoband, and other Darul-Ulooms in the country, not to train or appoint Qadis, Naib-Qadis or Mufti for rendering any judicial services of any kind.”
All objections and apprehensions being raised in the fresh controversy had been covered by the petitioner in this Writ Petition. After delving with the submissions of the parties, the SC bench comprising Justices Chandramauli Kr. Prasad and Pinaki Chandra Ghose rejected the petition in toto and declared, “In the light of what we have observed, the prayers made by the petitioner in the terms sought for cannot be granted.”
The SC observed, “In the present case, what we have been called upon to examine as to whether Dar al-Qada is a parallel court and ‘Fatwa’ has any legal status”, the bench declared, “… the grievance of the petitioner that Dar al-Qada and Nizam-e-Qada are running a parallel judicial system is misconceived.” and that, “the Fatwa has no legal status.”
The SC further said, “The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored.”
The court endorsed that AIMPLB feels the “necessity of establishment of a network of the judicial system throughout the country and Muslims should be made aware that they should get their disputes decided by the Qadi”. According to the Board, “this establishment may not have the police powers but shall have the Book of Allah in hand and Sunnat (tradition) of the Rasool and all decisions should be according to the Holy Book and the Sunnat. This will bring the Muslims to the Muslim Courts. They will get justice”.
After maintaining that Dar al-Qada or Fatwas have no legal sanction, the Court declared, “But this does not mean that existence of Dar al-Qada or for that matter practice of issuing Fatwas are themselves illegal.”
The Constitution
Besides this judgment of the Highest Court of the land, we find that adjudication of Muslim matters under the personal law has a constitutional basis. Article 372(1) of the Constitution of India says, “… all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended.” The word “all the laws in force” in the above-mentioned Article includes all statutory, customary as well as personal laws. As Prof Rani Bittoo observed, “By virtue of this Article the Muslim Personal Law stands recognised and Muslims in the country have all the right to live their own way of life.”
“The Muslim Personal Law (Shariat) Application Act -1937” is a part of Indian law corpus.
Section 69 CPC
Prof. Faizan Mustafa indicated in a video talk (Sharia Courts and Privatisation of Justice), Civil Procedure Code – 1908 provides an alternative dispute resolution avenue in civil cases. Under Section 89 (CPC), amicable, peaceful and mutual settlement may be achieved between parties without the intervention of the court. By virtue of this liberty, big business houses engage foreign arbitrator/s and get their disputes settled under the provisions of some other country’s law.
Legal Validity
Our Constitution, laws of the land and thereupon opinion of the Supreme Court; all support legality of Dar al-Qada as the dispute disposal instrument under Islamic Law. In such a case, how a community comprising around 18% of the total population be deprived of services of an arbiter/settler if he is named Qadi and parties prefer settlement according to Islamic Law popularly called, Shari’ah?
The concept that all civil disputes be adjudicated by the state courts has no legal or moral grounds. This erroneous idea is the product of a totalitarian mindset. The slogan of “One nation, one law, one leader and one party” is anti-constitutional, illegal and anti-national. No country can afford such a disastrous ideology. Our Constitution as well as liberal view all over the world, increasingly recognises that each community has the right to draw and practise its own set of rules for itself. Even individuals have the same liberty. You cannot use double parameters, one for non-Hindu affinities and another for the sects, groups, tribes and other clans, etc. among Hindus.
Privatisation of adjudication of civil cases is a global reality today. As AIMPLB argued in the response of Madan’s petition, disposal of personal disputes (generally regarding grievances of women, marriage, dissolution of marriage, inheritance, similar family disputes and adoption, etc.) are settled by our Qadi effectively and speedily without much financial burden upon the parties. The beauty and the utility of this system lie in the procedure the Qadi follows. The proceedings “are marked by a degree of flexibility. The proceedings are informal and marked by simplicity and absence of delay. The plaintiff himself makes the representation of his case. The absence of prosecutors and cross-examination of witnesses render proceedings swiftness and ease. No legal experts are required to present and defend cases; the parties directly approach Dar al-Qada to find amicable solutions. Devoid of cumbersome legal procedures and legal jargons cases are disposed of within a relatively short time in comparison to years, and in some cases decades, that are spent in facing hassles and complexities of the legal system. The process of dispute resolution rooted in the process of dialogue provides the parties with the added freedom and flexibility. Those manning the institution neither adhere nor display an affinity for procedural and technical complexities. The absence of legal representation makes the ambiance more informal and user-friendly. Circumstantial and forensic evidence are not required and they do not follow any standardised codes. The absence of these formalities makes proceedings streamlined and time-saving. (Bittoo Rani: Ibid)
The abhorred minds
In spite of these open facts, many feel abhorred with the term “Dar al-Qada” or “Shari’ah Court”. The twin words “Shari’ah” and “Court” create hysteria-like impulses in ignorant minds. During the last five decades, the terror groups created by big powers and the western media had demonised “Shari’ah” and “Shari’ah Court” as institutions indulged in regressive and inhuman acts especially against women, so far so a Delhi based advocate blamed, “The judgments (of Shari’ah Courts) will often be against the right to equality, freedom, and dignity of women. This will lead to the violation of the rule of law.” She went on to pose a series of silly questions as, “Who is the AIMPLB and under what authority is it going to establish Shari’ah courts in the country?”
Under what authority will it appoint judges (Qadis) and what will be their eligibility in accordance with the law that governs India?
Under what authority will the courts summon the opposite parties and witnesses? If the other party or witnesses don’t come how will they force them to come before the Shari’ah court?
Where is the police force to implement these orders and if you cannot implement the orders of these courts, why set them up?” (AIMPLB’s Sharia courts… First Post, 12 July)
These questions show the level of ignorance of the law of the land coupled with biased vision even in the legal fraternity. We need to be cautious and make some course correction. As the first step, the term of “Shari’ah Court” or “Dar al-Qada” be replaced albeit gradually by a more appropriate term like, “Islamic Counselling Centres”. Expansion of the network should be done gradually but without fanfare. The functionaries should desist from the galore of TVs and avoid instant bites to the media in the present politically surcharged atmosphere.
[The contributor is a senior journalist and a Civil Rights activist. [email protected]]