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Muslim body’s intention to set up Islamic courts sparks row in India

Shuriah Niazi

The All India Muslim Personal Law Board (AIMPLB) has sparked a row by allegedly expressing its intention to set up Sharia Courts in the country. Sharia law or Islamic law is the religious law forming part of the Islamic tradition. Sharia Courts run according to Islamic laws. The AIMPLB is the top non-government representative body for Indian Muslims.

The controversial decision has met with opposition from both ruling Bhartiya Janata Party (BJP) and Opposition Congress party, and a section of the Indian media even expressed the view that the Muslims had lost trust in the country’s judiciary and wanted separate Sharia Courts. Congress leader Rajiv Shukla said that the board’s decision was unconstitutional.

BJP lawmaker Meenakshi Lekhi said, “You can discuss religious matters, but court binds this nation. There is no place for Sharia Court, be it district or village or city. Courts will work in accordance with law. This isn’t Islamic Republic of India.” However, AIMPLB member Zafaryab Jilani clarified that the Sharia Courts cannot be an alternative to regular courts.

He said the board in fact wants to set up more Darul Qazas in the country and not Sharia Courts. He said that Darul Qaza is a place where Islamic scholars try to resolve the family conflicts and disputes of Muslims through mediation and counseling. There are already many such courts in the country run by AIMPLB and other Muslim organizations, Jilani added.

Asaduddin Owaisi, another member of the AIMPLB, said Darul Qaza resolves disputes speedily at very little expense. However, some media reports suggested that Muslims wanted to divide the nation by proposing to set up parallel religious courts. But can so-called Sharia courts replace regular courts for the Muslims and will the law permit them to do so?

Sharia courts cannot replace regular courts as they have no legal sanctity. In July 2014, the country’s Supreme Court had ruled that as Sharia Courts have no legal sanctity, an order or diktat pronounced by them is not binding on anyone. The top court refused to ban Sharia Courts saying these courts offer an informal justice delivery system for amicable settlements and it is not illegal to do so. There is also no restriction on running family counseling or mediation centers like the Darul Qaza. In such a scenario the controversy surrounding Sharia Courts appear to be superfluous.

India’s former vice president Hamid Ansari said that people are confusing social practices with the legal system. Our law recognizes that each community can have its own rules. Personal laws in India cover marriage, divorce, adoption and inheritance. Each community has a right to practice its own personal laws, he added. It all began when a report of All India Muslim Personal Law Board cited Darul Qaza Committee’s organizer Tabrez Alam.

The controversy began when Qazi (Qazi is a Muslim cleric) Tabrez Alam visited Rampur in northern Indian state of Uttar Pradesh to review the functioning of Darul Qaza. Darul Qaza is an institution of Sunni Muslims which tries to resolve the family conflicts and disputes of Sunni Muslims through mediation and counseling.

Tabrez Alam clarified that in Rampur he only said that Darul Qaza centers could be set up all over the country if the Muslims wished it. He said his statement was distorted by the media in Delhi, leading to a nationwide debate. The AIMPLB said in New Delhi on July 15that it had proposed to set up Darul Qaza centers which do not replace the country’s regular judiciary. Many members and functionaries of AIMPLB have said that Darul Qazas and Sharia Courts are not the same and that Darul Qazas are only counseling and arbitration centers, where family, domestic and marital disputes are settled. Well-known Islamic scholar and Chairman of the Delhi Minorities Commission Dr. Zafrul Islam Khan said that Darul Qazas can more appropriately be called Sharia Panchayats because they resolve disputes according to Islamic laws and counsel both the parties. A Panchayat is a system of dispute resolution at the village level in India. Panchayats usually resolve petty disputes between people.

He said, “Darul Qazas should not be confused with Sharia Courts. A misunderstanding was created when AIMPLB said it wanted to set up Sharia Courts. The Board only wants to set up centers to gives suggestions and advice to people on domestic and family issues.”

Hyderabad-based Nalsar Law University Vice Chancellor Professor Faizan Mustafa said, “Sharia appears to be a very traditional and old-fashioned thing while the reality is quite opposite to it.” According to Professor Faizan Mustafa, Darul Qaza tries to resolve the disputes between two parties. But the parties are free to approach the court if they are not satisfied with the advice of scholars and clerics of Darul Qaza. Darul Qazas only try to solve the problems and disputes of the people and are not a parallel court system, he said. Only civil issues like marital and family disputes, issues related to property, divorce etc. are brought before it. They are not authorized to hear and decide criminal cases.

Mustafa said that the Indian Penal Code (IPC) applies uniformly on every Indian citizen and no one is exempt from action under IPC. Criminal cases like rape, murder, theft etc. are heard and decided by regular courts. A person who breaks the law of the land or commits a crime will be arrested and prosecuted in the court by the government. The person’s will in this regard has no value. He said the media has wrongly suggested that All India Muslim Personal Law Board wants to implement Islamic law in the country and therefore it has proposed to set up Sharia Courts all over the country.

The reality is that the history of Darul Qaza or Sharia Panchayat is very old. The Darul Qazas have been around for quite some time. They are functioning since 1920 in Bihar’s Patna district at Phulwari Sharif and are run by Imarat-e-Shariah. People approach these centers for quick disposal or settlement of civil cases.

Hundreds of thousands of people in the states of Bihar, Jharkhand and Odisha approach these centers every year. Idara-e-Sharia also runs such centers in Bihar. Imarat-e-Shariah and Idara-e-Sharia are socio-religious organizations of Muslims. The All India Muslim Law Board has also been running Darul Qazas since 1993. Currently the board is running about 70 Darul Qazas all over the country.

Professor Anandita Chakravarty, who teaches sociology at the Indian Institute of technology (IIT), Kanpur, has studied the working of Darul Qazas in Lucknow and Kanpur. In her study she found that 95 percent of the people approaching Darul Qazas are females. She said it is obvious that women in such large numbers cannot be forcibly sent to Darul Qazas.

They are free to approach the civil courts if they are not satisfied with the advice of Darul Qaza. It is clear that Muslim women are not sent to Darul Qazas against their will, Chakravarty said. Similarly, researchers have found that Darul Qazas running in Bihar have so far resolved nearly 50,000 family disputes, and in very few cases people knocked the doors of the regular courts as Darul Qazas amicably resolved their issues or solved their problems. Besides, the cases in Darul Qazas are resolved quickly—usually in less than a year.

According to Professor Faizan Mustafa, Darul Qaza is in fact part of an alternative dispute resolution. He sees it as privatization of justice. In Indian courts, nearly 40 million cases are pending at the moment, and even if no fresh cases are filed, it would take nearly 366 years to settle them all, he said.

According to Professor Mustafa, there are 15,000 judges in the country; that is only one judge for every about 100,000 people. He said if the Indian judicial system has to be brought at par with the international system then there should be at least 10 judges for 100,000 people.

Professor Mustafa claimed that in some western countries family issues are not heard by conventional courts. On the other hand, family disputes are heard by mediation courts and currently six such courts are functioning in England. Mustafa pointed out that Christians also take the help and advice of their religious priests to solve their disputes. Similarly Darul Qaza is only an institution that resolves the family issues of Muslims.

According to Professor Mustafa, the media unnecessarily created controversy on this issue. He also advised AIMPLB to be very careful while issuing statements as they could be misinterpreted by the people. Mohammad Sajjad Hussein, Professor of History at Aligarh Muslim University, said such controversies are being deliberately created as parliamentary polls are due early next year. Members of the ruling BJP and Hindu fundamentalists want to paint Muslims in a negative light.

Therefore such issues are being highlighted to create hatred toward the Muslims, and the BJP aims to garner Hindu votes through such manipulations. He said that the issue has provided fuel to the BJP for polarization in its favor. Currently, the BJP is in power in the country and it is considered to be close to Hindus. Critics say that the BJP wants to polarize voters on religious lines.

 

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