[op-ed snap] A parallel injustice system

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Vishwa Lochan Madan versus Union of India and Others case and its significance in diminishing parallel justice system in India


Context

Advocating Sharia courts

  1. Many people have advocated the concept of Sharia courts in recent past
  2. They claim that Sharia courts are mere arbitration centres and not a parallel judicial system

Huge difference between the two 

  1. Mediation and arbitration centres are very different from Sharia courts
  2. In the case of arbitration/mediation, an issue can be referred only when both the parties agree to it and choose their own counsellors
  3. They don’t have judges(qazis) but counsellors who settle the disputes by consulting both the parties

International operations argument is flawed

  1. Sharia courts are operational in the UK, Israel and other countries
  2. This claim is not relevant to the current issue in India
  3. In the UK, for example, Sharia councils and not Sharia courts are operational which provide advice to those Muslims who voluntarily choose to use them to resolve civil and family disputes

Presence in India

  1. Sharia courts are operational in Bihar and other states
  2. An argument is put forward that their decisions are never challenged by the people
  3. If the orders of Sharia courts are not challenged, this doesn’t show the acceptance of people
  4. It shows how the Muslim associations have successfully misled the common people to believe these bodies are courts and if they do not follow their orders, it would be anti-Islamic

SC decision on the issue

  1. There is also a claim that the Supreme Court never declared Sharia courts unconstitutional
  2. This too is a false claim.
  3. In Vishwa Lochan Madan versus Union of India and Others in 2005, the Supreme Court held that: “In any event, the decision or the Fatwa issued by whatever body being not emanating from any judicial system recognised by law, it is not binding on anyone including the person, who had asked for it
  4. Further, such an adjudication or Fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive methods
  5. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law.”

Alternative way for India

  1. Even if both the parties agree to settle their disputes outside the court, these bodies can be called Sharia councils or arbitration centres but under no circumstances can they be called Sharia courts
  2. Also, if these bodies are to be given this power to settle disputes outside the court, this decision has to come from Parliament by proper legislation and not by a private entity like the All India Muslim Personal Law Board (AIMPLB)

Way Forward

  1. All claims put in favour of Sharia courts are baseless
  2. It is an attempt to mislead the common man and improve the image of this parallel judicial system in the country, which is a threat to the rule of law
Alternative Dispute Resolution Mechanism – NCA, Lok Adalats, etc.
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