Wednesday, July 30, 2014

Today's Editorial 29 July 2014

 Sharia courts & fatwa

Source: By Faizan Mustafa: The Statesman
In a landmark order on July, the Supreme Court held that sharia courts are not courts because the Indian legal system does not recognize a parallel judicial mechanism.  The fact is that neither the Muslim Personal Board nor the seminary at Deoband has ever asserted that sharia courts are ‘courts’ in the strict sense of the term. But then privatization of justice is a reality not only in India but in most developed countries. Does our law not recognize arbitration and other alternative methods of resolving disputes? Are not sharia courts and fatwas different and ought not to be clubbed together? What has been the performance of sharia courts in the last 94 years? Has not the latest decision given a new lease of life to the sharia courts? These are some of the pertinent issues that call for reflection.

It may be difficult for our television anchors to readily accept, but many jurists do question the idea that all law must necessarily emanate from the ‘State’. The divide between the socialists and liberals is clearly visible. Liberal scholars openly embrace markets and reject all government intervention. ‘Legal Pluralism’ and ‘Radical Libertarianism’ are well-recognized scholarly traditions. There is a consensus that the State is not the only source of law. In several primitive societies, law developed gradually from custom in the absence of any sort of government. History contains many instances of pluralistic legal systems in which multiple sources of law existed. Most commercial disputes in the world are today resolved informally. Most businesses consider a private arbitrator an attractive alternative to a government judge. A recent survey of 1,000 of the largest US corporations showed that 79 per cent used arbitration to resolve commercial disputes in the last three years. Thus one of the central functions of the State ~ dispute resolution ~ is largely escaping the State’s sphere of influence. We are witnessing a slow but gradual extinction of our civil justice system. The shift to private, largely unregulated and unscrutinised processes is the global trend.

The State attempts to portray its judicial system as one of speedy and impartial justice. But in reality, state courts have to countenance many problems. They are conduits for gross injustice. At a more fundamental level, there is no evidence to suggest that an adversarial system, which our judiciary follows, is the best way to resolve disputes. Whenever parties choose arbitration rather than governmental courts, it demonstrates that arbitration is benefiting both parties.

This is the context in which the latest decision of the apex court on sharia courts needs to be examined. Sharia courts reflect a similar trend. The Supreme Court refused to ban sharia courts and did accept that they are in the nature of arbitration proceedings. The Muslim Personal Law (Shariat) Application Act, 1937, specifies the issues on which personal law shall apply to Muslims. It is a short enactment of six sections which aims at restoring the Muslim law to all Muslims and does away with customs contrary to the sharia. There is little doubt that the ‘Muslim Personal Law’ is indeed law under our Constitution. Article 372 explicitly permits continuance of ‘all laws in force’ at the commencement of the Constitution. Entry 5 of the Concurrent List also recognizes ‘personal law’ as law in matters of marriage, divorce, adoption, will, succession and partition etc. and gives powers to Parliament and State Legislatures to legislate in respect of them. Even the High Courts and the Supreme Court follow the Muslim Personal Law in disputes concerning Muslims. In international commercial arbitration proceedings, parties are even free to follow any law or ignore the law of their country or even draw up their own law. What is accorded to top business houses cannot be denied to ordinary citizens. Thus if citizens want to use sharia courts, they are free to do so and these courts are free to follow sharia law as an integral part of the Indian legal system.

The sharia courts of Bihar are widely respected, and their decisions have been quoted in approval by the various High Courts in eastern India. There is no law governing Muslims that can compel them to use the forum of state civil courts to settle their disputes. Such a choice is not available in criminal matters. Thus no law prohibits the establishment of sharia courts.

The Supreme Court decision has now given a new lease of life to the sharia courts in respect of parties who volunteer to use this forum. There is an elaborate system of appeal and revision. Given the success of the Bihar model, sharia courts have been set up in several states. Neither the Government of India nor the Muslim Personal Law Board has denied the existence of such courts in the apex court.

Fatwas are nothing more than an opinion of an individual which is issued without following the elaborate procedure of sharia courts. Unfortunately, the distinction between the two has not come out clearly in the decision of the apex court. Indeed, several fatwas have been issued in the recent past, and the highest court has rightly held that such directives are not to be issued particularly when the interested party had not sought them or they relate to the country’s general criminal law.

The responses based on religious texts can never be progressive as religious scriptures and laws do not reflect modern ideas of individualism, liberty, equality and human rights. In fact fatwas do not deserve the space which our media gives to them. By discussing them during prime time, the media accords a measure of respectability. The overwhelming majority of Muslims in India hardly attach any significance to these fatwas. Let fellow citizens also ignore them.

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