By Faizan Mustafa and Mahendra Shukla
July 16, 2018
The All India Muslim Personal Law Board’s (AIMPLB) proposal to establish Sharia courts all over the country could provide fodder to the Hindu right. But we need to ask: When were these courts originally established? Are they really parallel courts? Who goes to them and why? Do they amount to privatisation of justice? Is the death of civil courts a global trend?
Darul Qaza (Sharia courts) are not courts in the strictest sense of the term but counselling or arbitration centres. They are accessible, useful, informal and voluntary institutions that provide speedy and inexpensive justice to the poor. The apex court in its landmark judgment in the Vishnu Lochan Madan case (2014) clearly stated that 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.
The decline of the civil justice system is a major phenomenon of our times. In fact, alternative dispute resolution (ADR) mechanisms are the new normal. Most corporates in the US consider a private arbitrator as an attractive alternative to a government-appointed judge. From the 1980s, there has been a “quiet revolution” in dispute settlement in the US. There has been a huge decline in the number of cases that are tried in federal and state courts in the US. All family disputes are mandatorily referred to mediation in the UK as well. The move has rightly been termed as the “economic cleansing of the civil courts”. Governments too favour ADR as it leads to saving public money. Thus in 2008, the UK set up five Sharia courts whose rulings are enforceable with the full power of the English judicial system. Israel too enforces the orders of Sharia courts as decrees of the state’s civil courts. ADR is privatisation of justice because parties not only nominate their judges but make their own laws or adopt laws of other countries. Monopoly of state laws is thus a thing of the most.
Even in India, most corporate disputes are today resolved through arbitration.( Section 89 of the Civil Procedure Code talks of arbitration, mediation and conciliation) The Commercial Courts Ordinance, 2018 that amended the Commercial Courts Act, 2015 provides for mandatory mediation in commercial disputes. The mediation settlement will have the same effect as an arbitral award under the Arbitration and Conciliation Act,1996. Similarly the Consumer Protection Bill, 2018 also talks of mediation. Most Supreme Court and high court judges take up arbitration work after retirement. Unfortunately, however, these are costly arbitrations, whose sittings are generally held in five star hotels, and many times outside India.
For almost a century or so, judges during the colonial times were assisted by Qazis in the discharge of judicial functions. When the Quazis Act of 1880 deprived the Qazis of their judicial powers, there were demands to establish Sharia courts. But these demands were not conceded. This precipitated private initiatives to establish such courts in the second decade of 20th century in Bihar. The Sharia courts of Bihar are widely respected for putting in place elaborate procedures for the determination of issues, systematic recording of testimonies and speaking orders. Some of these orders have been quoted with approval by the formal courts. In Bihar, more than 60,000 cases have been amicably resolved by these courts. The cases were disposed of in less than a year’s time. There has been a steady increase over the decades in the number of cases filed with these Sharia courts. Very rarely is a Sharia court’s decision challenged in a civil court. Such courts were subsequently established in West Bengal and Orissa.
The sociologist Anindita Chakrabarti has studied Darul Qaza (Sharia courts) of Lucknow and Kanpur and found that 95 per cent Muslim women used it out of their free will. These women also use formal civil and criminal courts. Chakrabarti also found that in most cases women went to these courts to get a divorce from their husbands. Sylvia Vatuk of the University of Illinois studied formal family courts in Chennai and Hyderabad and also examined the cases before the Qazis in two cities. In her book Marriage And its Discontents, Vatuk argues that most Muslim women prefer to seek the arbitration of quazis rather than formal family courts. Such women are generally the ones who seek divorce from husbands. She found that the state’s family courts had poor infrastructure. Vatuk also found that though Muslims were 8.7 per cent of Chennai’s population in 1991, in no year between 1988 and 1997 did more than 4 per cent of the cases registered in the family courts involve Muslims. She also found that almost all Muslim men in Chennai sought the arbitration of family courts for the restitution of conjugal rights. In Hyderabad, Vatuk examined 1,993 registers of two Quazis and found that the majority of cases were initiated by the women who sought divorce from their husbands. There are women-run Sharia courts in some parts of India. Even the BMMA runs Sharia courts.
In 2017, we studied 74 Sharia courts run by the AIMPLB in 15 states. Maharashtra with 23 has the highest number of such courts followed by UP with 22 Sharia courts. We also found that more women than men seek the arbitration of these courts. While most men (49 per cent) seek the arbitration of these courts for the restitution of their conjugal rights, a majority of women consult these courts to get divorce (31.9 per cent) or to seek the dissolution of their marriages (27.7 per cent). We also found that these courts never grant triple divorce. They always prefer the Quranic procedure of divorce. We also found that in almost all cases, the Qazis ensured the payment of the maintenance money. In 89 per cent cases, we found that the cost of using Sharia courts was less than Rs 1000.
Thus there is nothing new in the AIMPLB’s proposal to establish Sharia courts. The debate on their proposal should not become a ruse to polarise. About 100 such courts have been functional for decades. These courts provide speedy and inexpensive justice to poor women. No one can be forced to go to such courts. 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. Unlike the Khap Panchayats, these courts do not deal with criminal cases and cannot forcibly enforce their orders.
However, each Sharia court should ideally have at least one woman. Alternatively, we may have all-woman Sharia courts. In fact, all-woman Sharia courts are doing wonderful work in Mumbai.
Mustafa is vice-chancellor NALSAR University of Law, Hyderabad. Shukla is assistant professor, Centre of Management Studies, NALSAR University of Law, Hyderabad