By Faizan Mustafa
August 10, 2018
Monica Arora has written an emotive
response to my article (‘Justice more accessible’, IE, July 16) titled, ‘A parallel
injustice system’ (IE, July 27). Javed Anand, a veteran of several battles of
civil liberties too has responded with ‘Courts
Of Injustice’ (IE, 30 July). As an academic, I do not have the luxury of
ideological leanings. I am duty bound to rely on hard research rather than
popular stereotypes or opinions.
Neither Arora nor Anand has challenged the
findings of my research and that of Mahendra Shukla, Sylvia Vatuk, Anindita
Chakrabarty and Bittu Rani. It seems none of them has read Gopika Solanki of
Carleton University who had undertaken a remarkable study in Mumbai. Her
primary finding is that it is a faulty presumption that only Muslims use Sharia
courts as an adjudicatory mechanism. Her detailed ethnography of adjudication
shows that different kinds of adjudicatory bodies including Sharia courts,
caste councils, sect councils, civil society organisations etc, do adjudicate
in family disputes. Sharia courts are the norm and not an exception.
Solanki suggests that the rate of
litigation in family courts is quite low and cases across religious groups are
resolved in private forums. For instance, between 1991-2001, the crude divorce
rate in the Mumbai family court remained 0.0001 (number of cases per thousand).
Arora and Anand would be shocked to know
that Solanki found that Sharia courts in Mumbai follow a procedure that is
standardised, informal, inexpensive and, above all, consensual. She also found
that during appeal, many litigants did approach state courts without any
adverse effects or societal pressure. Even the February 2018 UK report to which
Anand has referred found that almost all applicants in some 80 Sharia courts
were women. The report did not recommend a ban on the Sharia courts. It, in
fact, noted that Jews and Roman Catholics too have a similar system. Last week,
the UK High Court has given legal recognition to Muslim Nikah.
Anand, in particular, will be surprised to
know that Solanki has documented cases in which Sharia courts played a
proactive role in helping women recover their dowry, persuading husbands to
hand over proof of divorce, helping women who wished to obtain a divorce and
even in challenging triple Talaq if granted under wrongful conditions and
helping the couple reconcile if they so desired.
In fact, Solanki’s research is unique as
she found that Sharia courts have harmonised religious and state laws. For
instance, Sharia courts freely granted Khula and the grounds for divorce that
they followed were quite similar to the grounds for divorce under the
Dissolution of Muslim Women’s Act, 1939. If anything, these grounds followed by
Sharia courts were far more extensive, liberal and pro-women. She has found how
these forums combine principles of Islamic jurisprudence and progressive state
laws and judgments to provide justice to women. Jeffrey A. Reddying’s research
also proves that the personal law board run Sharia court in Delhi does follow
processes similar to state courts.
Anand is under a wrong impression that all
state laws and judgments are gender just and all religious laws are
discriminatory. Even today, in a number of states, daughters get no share of
agricultural property in the presence of sons. A Hindu wife is still not a
coparcener. Did not the Supreme Court in V Valusami (2010) call the second
Hindu wife a “mistress” and “keep”? Did not the Madras High Court hold that
“divorcees too should maintain sexual purity to claim alimony”?
Arora’s claim of my article being “false”
is laughable. She overlooked this crucial line of the Vishnu Lochan Madan
judgment (2014): “But this does not mean that existence of Dar-ul-Qaza or for
that matter the practice of issuing Fatwas are themselves illegal.” She has
also contested my claim of Sharia courts as an “informal justice system”. This
is what the Supreme Court had said about the Sharia courts: “It is an informal
justice delivery system with an objective of bringing about amicable settlement
between the parties. It is within the discretion of the persons concerned
either to accept, ignore or reject it.” She should understand that Vishnu
Lochan had sought a ban on Sharia courts and fatwa and sought an order from the
court to hold them unconstitutional. But the court neither accepted his prayer
nor issued any direction to the government to ban either the fatwa or Sharia
There is a distinction between public law and
private law. Thus, if parties wish to go to the Sharia court, no one can force
them to use civil courts. Of course, in criminal cases such an option is not
available. If there is rape by a father in law, no fatwa has any meaning. Arora
is not aware that in this very case not only did the couple ignore the absurd
fatwa but on the victim’s testimony, the accused was convicted and is in jail.
Both Arora and Javed overlooked my central
argument — the civil justice system is dying in India. CJI T S Thakur admitted
in the Supreme Court Report of 2016 that “access to justice is illusionary”. As
against 20,558 sanctioned posts, today we have just 15,540 judges. India has an
extremely poor judge-population ratio. Unlike the US, which has 107 judges for
1 million people, we have barely 10 judges for the same number.
Arora is also wrong on nomenclature. I said
clearly in my article that “Sharia courts are not courts in the strict sense of
the term but counselling or arbitration centres”. Arora has enhanced the stature
of Sharia courts by calling them a parallel justice system. Muslim women go to
Sharia councils because of the failure of our justice system.
of Darul Qaza
Darul Qazas or
Sharia Courts: Why both must be Opposed?
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad