This article has been written by Ms. Mahek Choudhury, a 3rd year law student at South Calcutta Law College, Calcutta University. 

ABSTRACT 

India is a place with different communities living together and practicing their religion. However, people have certain rights and duties which need to be followed when practicing such religion. There are also certain minority groups that follow certain customs and traditions opposed to the law of the country. Does this mean that such laws and bodies cannot exist? 

Using the doctrinal research method, the author delves into the aspect of where courts like Sharia courts stand in a country like India, along with their historical background, their impact on the Constitution of the country, its legality and finally analyzing certain decisions taken by the apex court in this regard. 

• INTRODUCTION 

With its much complexity, the discourse on Sharia courts is one of the most difficult yet interesting areas of discussion and articulation in the current socio-legal agenda and debate. In recent years, critics have attempted to understand Sharia courts as analogous to formal courts that are involved in contesting the official legal structure. To gain a better understanding of the relationship between power, social control, and freedom, it is very beneficial and necessary to research the presence of sharia courts, or sharia justice in general.

The term “darul-qaza” refers to sharia courts, which are also called the “house of the Qazi,” or Islamic scholars with the power to offer remedies to Muslims who approach them with their issues. Although the term “sharia” is sometimes misunderstood and is thought to refer to a harsh legal system that shows little regard for state, federal, or local laws and customs, as well as something unchanging and stagnant, we frequently overlook the term’s inherent dynamism. Muslims have turned to Sharia principles to provide structure and order in their lives from the beginning of civilization. The Islamic community is deeply imbued with a profound sense of moral obligation and justice by the Sharia principles, which permeate all facets of life, both public and private. Sharia law is distinct on its own. It serves as a source of legislation as well as a dispute-resolution mechanism in and of itself. The complete spectrum of human activity is outlined in Sharia principles in the form of obligations, importance, and acceptance.

• HISTORICAL BACKGROUND OF SHARIA COURTS 

Sharia courts are a social construct that is rooted in and functions within the framework of local power relations. Social actors adapt these courts to uphold the legacy of early informal conflict resolution practices. Before the British established their dominance over Indian Territory, Mohammedan penal law was the dominant legal system in the nation, with Hanafi law being generally accepted as a means of settling disputes and governing both private and personal life. Since the Mughal era, there has been a clear tradition of the Qazi serving as the top judge. Under the regal Mughal patronage, the system of sharia courts was crucial in its articulation and persisted unabatedly until the British intervention. The history of India’s justice system during the Mughals shows how the legal systems of several other countries, including Egypt, Iraq, Turkey, and Spain, were skillfully combined. Under the Mughal dynasty, the administration of justice was a blend of Indian and non-Indian components, a Perso-Arabic system applied to Indian conditions.

Using his seal to attest all documents and deeds, the qazi conducted and resolved disputes in his court, following the tenets of Mohammedan law. He took note of cases about marriage, marriage contracts and settlements, inheritance division, testaments, and the appointment of trustees for religious endowments. The “mufti” frequently assisted the qazi in the performance of his duties. The mufti was qualified to provide fatwas or legal opinions and was a specialist in “fiqh,” or Islamic law. Even though the “muhtesib,” or market inspector, did not typically have judicial authority, he occasionally served on the board for justice administration. There was a type of full bench, and the mufti recorded the “fatwa,” or the law that applied to the matter in issue, while the qazi, acting as judge, delivered the decision after hearing the case and the parties involved.

The Qazi embodied both worldly and mystical aspects of his personality, being well-versed in Islamic writings, the “Quran,” and pertinent laws and regulations. His decision was final for all concerned parties. He obeyed and never deviated from the law established by religious books or a generally recognized custom while making decisions in instances. Even though his position and duties were public, time had contributed to their being inherited.

• HOW DOES SHARIA COURTS WORK?

Sharia courts are formed solely to resolve disputes among the Islamic community. Sharia courts, also known as Dar-ul-Qaza, operate differently from regular courts. There is a great deal more latitude in terms of what may be admitted as evidence and who can testify, as well as in terms of qualifications. Nonetheless, the fundamental procedures of a typical court are followed, including the appointment of a judge, the admission of evidence and witnesses, the announcement of the decision, etc. It should be noted that these courts do not decide on criminal matters and their decisions are not binding on the parties involved. Another important feature of these courts is that both the parties involved have consented to solve the dispute through a Qazi. Moreover, any sort of relief or justice offered to the victim is based on Sharia principles which make the procedure fair and justifiable. 

The parties involved can present their claims to the judge on their own, and legal representation is not always necessary. Since there is no jury system to oversee cases, cases are brought before a single judge who renders decisions based more on uncodified Sharia principles than on established legal norms. Although, the lack of a set or strict judicial process means that proceedings are conducted in the most informal manner possible but still the privity of the contract concept is upheld. The Sharia courts’ decisions have no legal force or impact on the involved parties. As a result, the disputing parties are free to accept or reject the statements made. Lastly, these courts only deal with matters involving marriage, waqf, divorce, charitable organizations, religious endowments, and trust properties. 

• INTERSECTION BETWEEN SHARIA COURTS AND CONSTITUTION 

Although, The Constitution of India in generality do not deny the existence of Sharia courts as long as they do not infringe the Fundamental rights but courts have from time to time questioned the legal sanctity of such courts. All actions passed before the Constitution’s passage are permitted to remain in force in India under Article 13 read in conjunction with Article 372 of the Indian Constitution, provided that they do not violate the basic rights that the document’s authors intended. Sharia courts existed before the Constitution came into being and its establishment can be proved from the facts that these Courts have legal standing since the laws they aim to uphold are neither incompatible with the spirit of the Constitution nor with basic rights. Thus, in a sense, Sharia Courts are also authorized by law.

Second, it might be claimed that the prefatory statement of Article 13 does not include the entirety of Personal Law since it does not directly specify the term “Personal Law.” The Shariat Act just defines the scope of issues falling under personal law; it is not codified legislation that addresses the practices of Muslim private life. On the other hand, because Muslim Personal Law is based on the Quran, which is neither a comprehensive body of law nor a custom in its whole, it is not even “custom and usages” in the strictest sense of the word. Moreover, historically speaking, the Shariat Act is not a “state-made law.” Therefore, Muslim personal law as a whole and its application are intended to be kept outside of the official legal system. Sharia Courts and other Personal Law establishments are designed to be the only forums for making decisions on Personal Law issues.  

• LEGAL AUTHORITY OF THE SHARIA COURTS 

The Constitution of India does not prohibit Sharia courts but courts have often questioned its legal authority.  It should be noted, however, that religious sanction does not equate to legal sanction. Articles 13, 14, 25 (1), and 29 (1) protect minorities’ rights and interests, but they do not mandate the establishment of institutions akin to Sharia courts. Furthermore, religious practices are frequently backward in comparison to modern society. Furthermore, it should be mentioned that, in comparison to modern culture, religious customs are frequently backward. Even if the practice of notorious practices like sati, dowries, and the ban on widow remarriage, which had been sanctioned by Hindu personal laws for millennia, has been abolished, it is still necessary to examine the harsh and discriminatory norms that were adhered to under the pretext of personal laws.  

Although religious establishments would defend anything in the name of religion, they also probably violate the constitution’s tenets found in Articles 14 and 21. Because of its past, Sharia courts have occasionally issued fatwas that are discriminatory and go against the constitution. Their decisions might very well disagree with one another because they are essentially interpretations of the Quran and Sunnah. This might then lead to more disagreements and conflicts of a different kind.

In a very important judgment in the case of Vishwa Lochan Madan v. Union of India and others (2014), the Supreme Court held that the Sharia courts’ fatwas, or Islamic rulings, have “no place in independent India” and should not be applied to punish the defenseless. The court further stated that the parties are free to accept or reject their advice and that it is not legally enforceable. Sharia Courts were similarly only described in the ruling as “informal justice institutions” with “laudable objectives” but no official legal standing. The ruling also highlighted the possibility of punishment if basic rights are violated. It is believed that “power must flow from a valid source,” which is the reason these Courts are not sanctioned legally.  The court also decided in Narasu Appa Mali v. State of Bombay (1952)that personal law is not the same as the law of the country.

Therefore, from the above judgments, it is clear that Sharia courts have no legality in India and their judgments are not recognized under Indian law. This is why when the Supreme Court pronounced its decision on cases like Shayara Bano and Ors v. Union of India(2017), it was not well received by the public. According to the Muslim community, a right to declare a practice unconstitutional should only vest with the community itself but logically just because a custom has been practiced for a long time does not make it legitimate and permitted by law. People are not free to do anything and everything in the name of religion. 

• CONCLUSION 

India is a secular country, as claimed but would we call it a secular country if the people of all religions cannot follow their customs and traditions? The answer here is both yes and no. If we take a look at it from the positive side, we find that people have the liberty and choice to perform religious activity as well as follow personal law as long as it does not infringe on the Fundamental Rights of the people of the country. The Constitution explicitly does not deny the existence of courts like Sharia courts. 

Also, by reducing the costs of professional assistance and bureaucratic delays, as well as the deterrent effect of having judges and solicitors with higher social statuses confront prospective parties in regular courts, sharia courts enhance the delivery of justice. Sharia courts protect shared society interests and renew social links through mediation since litigation is viewed as a harmful social occurrence that disrupts harmonious social relationships.

But if we take a look at the other side of the dispute, we find that certain decisions need to be made for the well-being of the entire community as well as the country. For example, the case of ‘triple talaq’ where this practice was abolished was an imperative decision taken by the apex court. These practices highlight the patriarchal and misogynistic attitude of the community where women are not even free to say no when a man divorces by saying the same word thrice. Taking a closer look at matrimonial laws under Muslim law, it is very clear that women have no choice over their marriage and divorce; they live at the mercy of their husbands. Therefore, when we say that courts like Sharia courts need to be legal, we need to look at it from all aspects. Just because these courts have more advantage of knowing the law and are capable of faster and more convenient decision-making, it does not always mean better decision-making.

• REFERENCES 

ARTICLES 

1. This article was written by Bittoo Rani and published in the International Journal of Humanities Social Sciences and Education (IJHSSE) on the Arc Journals website. The link for the same is herein- https://www.arcjournals.org/pdfs/ijhsse/v1-i9/18.pdf

1. This article was written by Mahelaka Abrar and published on the ipleaders website. The link for the same is herein- https://blog.ipleaders.in/legal-sanctity-sharia-courts-current-indian-scenari

OTHER SOURCES 

1. The Constitution of India, 1950 
2. Vishwa Lochan Madan v. Union of India and others (2014) AIR 2014 SC 2957
3. Narasu Appa Mali v. State of Bombay (1952) AIR 1952 BOM 84
4. Shayara Bano and Ors v. Union of India(2017) AIR 2017 9 SCC 1 (SC)
5. https://www.arcjournals.org/pdfs/ijhsse/v1-i9/18.pdf
6. https://blog.ipleaders.in/legal-sanctity-sharia-courts-current-indian-scenario/
7. https://blog.ipleaders.in/legal-sanctity-sharia-courts-current-indian-scenario/