Sharia courts untenable

A secular state will deliver justice irrespective of religion or gender, hence the establishment of such courts will be an affront to secularism

AuthorPublished: 13th Jul 2018  12:20 amUpdated: 12th Jul 2018  10:24 pm

An unseemly row has broken out over the All India Muslim Personal Law Board’s proposal to open Shariat courts in all districts of the country to resolve issues in line with Islamic laws. This is a totally avoidable controversy at a time when the nation is already reeling under the impact of divisive and identity politics. Darul-Qaza (Sharia Court) is legally untenable and goes against the spirit of the Constitution. Such an idea needs to be rejected unequivocally as it has no place in a constitutional democracy with a unified judicial system. Clearly, the AIMPLB, which lost the battle in the Supreme Court in the triple talaq case, is looking to stay relevant and the proposal to establish Sharia courts appears to be part of its attempt to continue to retain control over the community. It must be noted that more and more Muslim women are now approaching the Supreme Court seeking an end to archaic practices and customs. Establishing a private parallel judicial system cannot be permitted by law. Way back in 2014, the Supreme Court had made it clear that the verdicts of Sharia courts are not legally binding. Islamic judges who interpret religious laws can only rule when individuals submitted voluntarily to them. Their decisions are not legally binding. The apex court also made it clear that Sharia courts are not sanctioned by law and there is no legality of fatwas in the country.

Since the final word on the constitutionality of such a parallel setup has already been said, it is totally undesirable to rake up the issue now. It will serve no purpose other than adding to a list of divisive issues set to dominate the campaign theme of the 2019 general elections. The supporters of Darul-Qaza argue that the anomalies in interpretation of Sharia law can be removed by having proper Sharia courts so that proper counselling can be given to the aggrieved parties among the Muslim community in family and property matters. The key question here is under what authority does the AIMPLB appoint judges and what will be their eligibility in accordance with the law that governs India and under what constitutional provisions does the Sharia court summon the respondents and witnesses. Being just a private society formed in 1972, the AIMPLB has no powers to establish courts. Such a move would be a clear violation of the Supreme Court judgment of August 2017 declaring triple talaq to be illegal and unconstitutional. The Shia Waqf Board has rightly opposed the move, saying running own community courts would be illegal. Since a secular state will deliver justice irrespective of religion, caste or gender, the establishment of Sharia courts would be an affront to secularism.