Councils of contention

A little less than two months after the five-judge bench of the Supreme Court led by Justice J.S. Khehar invalidated instant triple talaq in August last year, an upcoming Darul Qaza (often misconstrued as Shariah court) on Mira Road in Thane district of Maharashtra was inundated with queries from local Muslims on the form of divorce it would consider final. The Islamic arbitration centre assured the callers that no decision would go against the Quran or the Sunna.

The queries at the Darul Qaza even before it had become functional come as no surprise. The callers were perhaps taking a cue from what is happening at the Darul Qaza at Nagpada Road in Mumbai, which has carved out quite a reputation for quick disposal of cases.. It receives up to 20 cases of instant talaq, with spouses themselves approaching the court for help in most cases. In around 75 per cent of the cases, the Darul Qaza has succeeded in reconciliation. At a time when the judiciary is overburdened with cases, leading to several years in litigation, this is something to reckon with. As claimed by a member of the All India Muslim Personal Board (AIMPLB), a Darul Qaza is characterised by zero expenditure, early decisions and amicable solutions.

Every month, scores of men and women approach the 130-year-old Jamia Riyazul Uloom, opposite the historic Jama Masjid in Delhi, to sort out their marital woes. The Uloom helps poor couples save on court expenditure by bringing about a rapprochement between estranged spouses. The reconciliation is brought about by people qualified in Islamic law.

In the light of these facts, it was hardly a surprise when AIMPLB spokesman Zafaryab Jilani told the media, “The board has received proposals from various parts of the country to open 10 Sharia courts or Darul Qaza, out of which five have been approved, and will be opened soon.” These include one Darul Qaza in Surat in Gujarat and one in Kannauj in Uttar Pradesh, besides those in Maharashtra.

His statement came on the heels of a report that the AIMPLB was planning to establish such courts in all districts of the country, which landed the body in a political controversy. Some sections of the media portrayed it as establishing a parallel judiciary. Others questioned the authority of the AIMPLB to establish such courts, arguing that it was just another private society with no legal standing. They questioned the rationale behind such courts at a time when the Supreme Court had already delivered its verdict in the instant triple talaq case and was seized of the matter in cases relating to nikah halala and polygamy.

The statements caused such a commotion that even the AIMPLB, which lacks in media savvy and is not seen to be liberal in mindset, had to issue a clarification: “We never said such a thing. It was misinterpreted. The board has no finances to set up such courts. Even for the occasional courts we establish, the request comes from the ground level. Local people sponsor it and bear the financial burden. The board appoints a Qazi. He is a qualified man and it helps in giving informed decisions.”

Arbitration councils

According to the board, what it aims to establish are arbitration councils or centres whose main job is to find an amicable solution to a problem confronting Muslim members. Upon dissatisfaction, the person is entitled to approach the judiciary for relief, as was the case with a woman in Muzaffarnagar, Uttar Pradesh, who had been criminally assaulted by her father-in-law in 2005.

This, said AIMPLB member S.Q.R. Ilyas, distinguished it from khap panchayats. “People come of their own volition. What we provide them is impartial hearing. Often the two parties talk to each other and resolve their differences. It is a cheap, affordable way of giving justice. What’s wrong with that? If somebody is not satisfied with the ruling of the Darul Qaza, he can go to the judiciary. But the point to be noted is that our legal system has also applauded the role played by such courts. They take some of the burden off our overworked courts at various levels,” he said.

Said Jilani: “The Supreme Court has already stated that it is not a parallel judicial system. The ruling by Qazis is not binding on anybody. It is more in the nature of advice. However, more than 90 per cent people accept it. These are more like arbitration councils with zero punitive powers. They function on the goodwill of the parties concerned.”

There are 40 Darul Qazas, a large number of them in Uttar Pradesh and Maharashtra. Ilyas said it was wrong on the part of the media to go to town with headlines like “Shariah courts to be set across the country”. “These are arbitration centres or councils. There is nothing against the letter or spirit of the Constitution,” he said.

According to Faizan Mustafa, a legal expert, the word “court” to refer to a Darul Qaza is a misnomer. “It is an avoidable controversy. The so-called Sharia courts do not amount to privatisation of justice. Even the Supreme Court pronounced that the so-called Sharia courts are not courts. The Indian judicial system does not recognise a parallel judicial system. Darul Qazas are just arbitration councils, dependent on the will of the people. Mostly women avail themselves of this system. They often go to such courts against their husbands. Most cannot afford the fee of lawyers and courts. So, they take recourse to Darul Qazas. They are accessible and affordable,” he said, adding, “If big corporate houses can do arbitration on their own, why cannot the poor do that?”

There are 40 such courts in the country at present, a vast number of them in Uttar Pradesh and Maharashtra; none exists in the north-eastern States. Jilani said the news about the AIMPLB planning to set up such courts in every district was not correct. He emphasised the fact that the courts were set up only when a proposal came to the AIMPLB.

However, it could not prevent a controversy in the media, particularly the electronic media which ran news tickers such as “Islamic courts to run parallel judiciary” and “AIMPLB moots parallel judiciary for Muslims”. But not just the media, Minister of State for Law and Justice P.P. Chaudhary said that the Centre was against such an idea and claimed that such courts were legally untenable. “The debate is unnecessary. The AIMPLB has no power to set up courts. Such courts are against the Constitution,” he said, little recognizing the fact that the apex court had not had any objections to the existence of Darul Qazas.

The AIMPLB countered, “Darul Qazas are neither courts nor a parallel judiciary system but they are arbitration or counselling centres where various family, domestic, marital disputes are resolved.”

The AIMPLB reiterated Prof. Mustafa’s claim that many women, especially the poor, approached Darul Qazas for justice. The board felt that the spotlight had fallen on the so-called courts which had been in existence for decades simply because the government was trying to deflect attention from its failures on other fronts.

Jilani recalled the Supreme Court judgment of July 7, 2014, following a petition by a Vishwa Hindu Parishad lawyer Tirlochan Singh challenging the validity of Darul Qazas. The Supreme Court then ruled that Darul Qazas were not courts and their decisions were merely in the form of “advice” and not an order. A person in disagreement with the decision could go for legal redress.

“Darul Qazas should not be branded as ‘parallel courts’, instead they they lower the burden on the judiciary. Millions of cases are pending in courts because of the dearth of judges; in these circumstances, Darul Qazas work and function for reconciliation between two parties,” he said.