Alternative fora

Print edition : September 06, 2013

IN April 2011, the State of Gujarat saw the inauguration of its first Darul Qaza, or Sharia court. Launched with much fanfare by the All India Muslim Personal Law Board (AIMPLB), the Darul Qaza declared that its aim was to bring about speedy and harmonious justice. The growth in the number of Darul Qazas over the last decade prompted a public interest petition before the Supreme Court asking the court to declare the Darul Qazas unconstitutional on the grounds that they challenged the primacy of the Constitution as a fundamental source of law and compromised secularism by permitting a religious, non-state system of legal governance. Permitting a community to set up its own judicial system, the petitioner alleged, would lead to the withering of the judicial system set up under the Constitution. While the Supreme Court continues to hear the petition, it is worth examining the extent to which the petitioner’s claims are justified.

The AIMPLB argues that Darul Qazas are legal under the Sharia Application Act of 1937, which provides that for a number of situations (including inheritance of personal property; marriage; dissolution of marriage through talaq, ila, zihar, lian, khula or mubaraat; maintenance; mehr; guardianship; gifts; trust and wakfs) the rules of decision in cases where the parties are Muslim shall be Muslim personal law (Sharia). However, it has left open the question regarding the authorities who will administer the law.

Following colonial precedents, Indian courts and judges of different faiths continue to interpret and rule on questions of Muslim personal law and, simultaneously, local qazis and imams and village councils resolve family disputes. While the former have the weight of the state behind them, the latter are backed by social sanction to ensure compliance. Thus, the new Darul Qaza courts are just additions to an already diverse landscape of institutions.

Professor Jeff Redding, an expert on civil procedure and comparative law at the St. Louis School of Law who has been studying Darul Qazas for some years, says they are not a new phenomenon, with the oldest Darul Qazas in Patna and Bhopal dating back to the 1920s. Judicial pluralism is not limited to Muslim law. Local institutions ranging from the khap panchayats in Haryana to the nyaya peethas in Karnataka mutts regularly decide family cases. The only difference is that the Sharia Act permits multiple authorities and methods of implementation, while the Hindu Code does not.

In the Supreme Court, both the AIMPLB and the Union government defended the Darul Qazas as an alternative forum for dispute resolution, which provided speedier settlements of certain kinds of disputes. They argued that this forum was conciliatory and mediatory and could resolve disputes expeditiously and amicably. The government also argued that the right to religious freedom guaranteed in the Constitution gave every denomination the right to maintain religious institutions and to settle disputes between members of that religion.

Redding said the argument on minority rights and religious freedom was secondary to the claim that the Darul Qaza system addressed the failure of the state legal system. It is well known that the Indian judicial system is overextended and rife with delays, which often deny justice to poorer petitioners. Since the 1980s both the Indian state and the judiciary have advocated the establishment of alternative dispute resolution mechanisms in a number of areas, and these range from consumer courts, bijli adalats and telephone adalats to lok adalats.

As the AIMPLB pointed out in its reply, Section 89 inserted in the Civil Procedure Code by an amendment in 1999 recognised the settlement of disputes outside of courts through arbitration, conciliation and mediation. It claimed that rather than being a parallel court system, the Darul Qazas were aids to an overburdened system and functioned as fast-track courts.

Redding suggests that the AIMPLB’s claims that the Darul Qaza system should be considered because the Indian state itself has been experimenting extensively with non-court institutions. He draws attention to the Gram Nyalayas Bill pending in Parliament and points out that it seeks to create a new tier of the Indian judiciary to try minor civil and criminal offences. The Bill, like many of the new alternative dispute resolution institutions, provides that the normal rules of civil procedure and evidence will be suspended and the adjudicators will range from retired judges to social workers and persons of local repute.

Thus, the Indian state clearly recognises that depending on their context, citizens can access non-formal forums and have differentiated rights. Most significantly, as the AIMPLB readily admits, its orders do not have the backing of the state, which can lead to some ambiguity. Redding, through his ethnographic work on a divorce case, notes that the legal status of a divorce obtained through the Darul Qaza was unclear (the divorcee had a notarised English translation of the Darul Qaza decisions) but the woman was considered divorced by all those she was in regular contact with.

The AIMPLB’s recent investment in establishing new Darul Qazas has to be read along with its initiative to codify Muslim personal law. In 2001, it published a compendium titled Majmu’a-i-Qawanen-i-Islami, which sought to offer guidance on an exhaustive list of subjects relating to personal and family transactions. It claimed to offer a distinctly Indian digest of Islamic law, combining the Quran and the hadiths with the opinions of significant Indian ulama such as Abdul Hai of Firangi Mahal and Maulana Ashraf Ali Thanvi.

Justin Jones, a leading historian of Indian Muslim politics, argued that the AIMPLB’s codification project should not be read simply as an effort to bolster tradition or resist reform. It constituted an attempt at rationalising and modernising the Sharia to facilitate its implementation within the legal and structural framework of the state, he said. He noted that the efforts of codification made visible their preference for Sunni Hanafi texts and consequent domination by the Deobandi ulama, leading to the fragmentation of the authority of the AIMPLB.

The breakaway Shia Muslim Personal Law Board declared that the triple talaq recognised by the AIMPLB was forbidden in Shia jurisprudence. Similarly, groups such as the All India Muslim Women’s Personal Law Board and the Bharatiya Muslim Mahila Andolan broke away and created new model nikahnamas, which provided more egalitarian provisions on women’s rights.

Thus, rather than being seen as a challenge to state authority, the Darul Qazas are representative of the growing pluralism of dispute resolution fora in India and the range of choices they offer to Indian citizens. The key step is not to curb these fora but to create greater awareness and ensure broad access so that citizens can shop for fora most effectively.

Rohit De