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Posted Online on Tuesday 19, August 2005 23:55 IST

Petition against "Shariat courts" is miguided 

By Zafarul-Islam Khan

New Delhi, Aug 18 (The Milli Gazette): The petition filed by one VL Madan in the apex court seeking ban of "Islamic Courts" is based on utter ignorance. The petitioner claims that Muslims have set up a "parallel judicial" system, which, according to him, is a "challenge" to the country's judicial system. The petitioner, said to be an advocate, has also asked the central and state governments to dissolve all Shariat courts.

The petitioner has further claimed that in the case of Imrana, the village panchayat issued a "fatwa" asking her to treat her father-in-law as her husband. How can a village panchayat issue a "fatwa"? This is based on the misinformation spread at the time by the media which described the village panchayat as "Shariat panchayat." The truth is that the panchayat was a normal village council which had nothing to do with Islam or muftis or Shariat courts.

According to media reports, the petitioner has also claimed that the All India Muslim Personal Law Board and other Muslim bodies indulge in activities which are "an open, blatant and flagrant affront on [sic] the sovereign concept of the Constitution and deserved to be curbed and trampled, once and for all." In other words, the gentleman wants to abolish the religious and civil freedoms the Muslim community has continuously enjoyed since the advent of the British rule after the fall of the Mughal empire. Such a demand is a clear violation of the Indian Constitution, laws, fundamental and human rights as we understand them.

The petitioner, according to media reports, also claims that by issuing a fatwa on the Imrana issue, the Deoband seminary "hijacked the entire issue and thus prevented the criminal law of the land from taking its natural course." Far from this, there was an outcry against the fatwa within the Muslim community itself, and the fatwa in no way whatsoever thwarted the course of criminal justice as the fatwa was issued on 25 June while the alleged criminal was already arrested and jailed on 16 June, waiting prosecution in a Muzaffarnagar court.

Shariat courts are arbitration councils which have no real or claimed judicial powers or authority whatsoever. Hence these councils cannot not be termed as a "parallel system" by any stretch of imagination. Their verdicts are nothing more than recommendations and advice. It is entirely left up to the two parties to accept the verdict or to reject it. In case of rejection, the so-called "Shariat courts" is powerless and the Muslim community at large enjoys no authority to coerce the rejecting party or to enforce the verdict.

Our judicial and political systems encourage such reconciliation councils and committees where people can get free and speedy justice. Such councils take the burden off normal courts where millions of cases are pending and any case takes a decade or more to be decided. Lok Adalats, panchayats and various arbitration and adjudication councils and committees are playing this very role for the benefit of the ordinary people.

According to my knowledge, only the AIMPLB and Imarat-e Shar'iyah Bihar & Orissa have a few dozens of such "Shariah courts" in some cities and towns. Other "darul qazas" are local and autonomous bodies established by people in various towns and villages. In any case these so-called "courts" deal only with personal law issues, that is marriage, divorce and inheritance and the like in which both parties are Muslim.

The current petition is on the same lines as the one filed by Chandmal Chopra in the Calcutta High Court in June 1985 to ban the Qur'an. It was thrown out with the contempt it deserved. The fate of the current petition should not be different. It will be a test of Indian democracy and secularism: can it be generous enough to let its Muslim citizens continue to follow their personal laws which is a right given by the Constitution and reiterated by all governments since Independence. The image of India as a free, secular and humane democracy hangs with this choice.

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