The question has been asked in the context of AIMPLB’s recent decision of establishing Sharia courts in all districts of India. Introduction should explain about the Sharia courts and its constitutional mandates.
Further, the main body should discuss about the status of Sharia courts in India and SC’s decision related to its existence. Though, SC has refused to declare it as unconstitutional, as such courts are widely respected for putting in place elaborate procedure for the determination of issues. Maharashtra has the highest number of such courts followed by UP.
Next, mention some reasons why Sharia courts should be allowed in India. Like working as advisory body, speedy and inexpensive justice, less pressure on legal courts, community involvement in decision delivery etc.
Next, mention what are the issues of establishing Sharia Courts in India. Arbitrary decision making, Issues of fatwa, state loosing its monopoly, undermine Art – 44 of constitution etc.
Next conclude based on the points of main body.
AIMPLB plan to open one Darul Qazas (Sharia courts) in all the districts in India. It has sparked a debate about whether we should have a parallel or Sharia courts in a secular country. Sharia courts are not courts in the strictest sense of the term but counselling or arbitration centres based on Islamic laws and practices.
Sharia Courts in India:
- According to SC’s judgement “Sharia courts are not courts” because the Indian legal system does not recognise a parallel judicial system.
- But the court also refused to deem them unconstitutional.
- Sharia courts has been established in the second decade of 20th century in Bihar, and were subsequently established in West Bengal and Orissa.
- Such courts are widely respected for putting in place elaborate procedures for the determination of issues, systematic recording of testimonies and speaking orders.
- As of now about 100 such courts have been functional for decades in India and such courts provide speedy and inexpensive justice to poor women.
- Maharashtra has the highest number of such courts followed by UP.
- Their orders are not binding and lack legal sanctity. However, it’s perfectly legal if all the parties concerned want to comply with their orders.
Why Sharia court should be allowed?
- It will be just an advisory body and have no authority to get their decisions implemented through any enforcement agency, So, they cannot be termed to “in conflict with or parallel to the Indian judicial system”.
- For many Muslims, the appeal of sharia courts lies in that, unlike the formal legal system, they are speedy and inexpensive.
- Such courts have provided speedy and inexpensive justice to poor Muslim women.
- A majority of women consult these courts to get divorce or to seek the dissolution of their marriages.
- Unlike the khap panchayats, these courts do not deal with criminal cases and cannot forcibly enforce their orders.
- These courts never grant triple divorce, They always prefer the Quranic procedure of divorce.
- Their orders are not binding and lack legal sanctity, However It’s perfectly legal if all the parties concerned want to comply with their orders.
- They are accessible, useful, informal and voluntary institutions that provide speedy and inexpensive justice to the poor.
- The decline of the civil justice system is a major phenomenon of our times, and alternative dispute resolution (ADR) mechanisms are the new normal.
- Some of these orders have been quoted with approval by the formal courts.
- More than 60,000 cases have been amicably resolved by these courts, The cases were disposed of in less than a year’s time.
- Very rarely is a sharia court’s decision challenged in a civil court.
- Also many secular countries like UK and Israel have allowed establishment of Sharia Courts.
Issues with setting up Sharia courts:
- May lead to loss of monopoly of state laws as ADR method relies on nomination of judges by parties as well as enforcement of their own laws.
- May lead to polarisation of the society on religious basis.
- Will undermine Article 44 of DPSP or formation of a Uniform civil code.
- Members of other religions may also demand formation of such Courts.
- International operations argument is flawed and this claim is not relevant to the current issue in India
- 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.
- No judicial backing to Sharia Court and such an adjudication or Fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive methods.
- Increase in patriarchy because of already low women presentation.
- It will deal Muslim issues and making legal constitutionally can affect secularism
- Prone to influence and discrimination from the vested and local interests.
- Creates a twisted sense of justice where formal legal system loses its value.
- Uniform civil code must be introduced and then arbitration courts must be formed which have legal sanction.
- Judicial and administrative reforms in present civil justice system to clear the logjam of cases.
- Before creating new courts, at least one woman member must be introduced in existing Sharia courts.
Overall, Sharia courts can offer reasonable help in civil disputes but the cost they incur on society is much larger than the benefits they bring- both on conceptual and practical levels. All claims put in favour of Sharia courts are baseless in the existing judicial set up. Though the formation will lead to easy and speedy dispensation of justice to one community, wider measures like uniform civil code and arbitration courts must be setup to address the issue in entirety.