Co-Written by Snehil Kunwar Singh & Bhaskar Kumar
Few days ago, the All India Muslim Personal Board (AIMPLB) expressed its desire to establish Darul-Qaza (Sharia courts) in all districts of the country in order to provide speedy adjudication in matters of Muslim men and women as per the Islamic laws. The Government of India rejected the request by AIMPLB. In the backdrop of these facts it will be pertinent to ask whether the concept of ‘sharia courts’ is justified under constitutional scheme of our country.
The framework of Indian judicial system is based on common law system and it is an integrated and unifiedjudicial system. The Constitution has not only laid the framework of the system but alsopowers, duties, procedures and structure of the various branches of the Government at the Union and State levels.The unification of judicial system is a step towards the progressive and just legal system leaving behind the remains of unjust, outdated and archaic legal system. Renowned socio-legal jurist Roscoe Pound opined thatthe multiple courts model detracts and impairs the economic efficiency and equal justice. The first basic principle guiding the unified judiciaryis its necessity for a simplified state court structure. Injustices often arise because the limited jurisdictional courts usually are not supervised adequately. Often these courts are not subject to the control of the state court administrator, and they are practically unknown to those holding executive responsibility for their states’ entire court system. Second basic principle usually embodied in the unified court concept focuses upon the need for centralized supervision of both a state’s judicial and non-judicial court personnel. Centralized supervision of a state’s courts under a unified system helps to promote equality in the administration of justice within the state. Such supervision includes uniform rules of pleading, practice, and procedure; general rules on court administration; and provisions for continuing educational programs. While complete uniformity and absolute control is impossible and undesirable, a state’s trial courts should function wherever possible under similar sets of guidelines, rules and working conditions
The value of uniform rules is very great. They establish standards of fairness and efficiency to which all may look. They are guidelines for the judges, directives and authorizations for auxiliary court personnel, and authoritative references for the lawyers. They are a check on favoritism, corruption, and local prejudice. Their formulation involves deliberations in which all relevant interests, objectives and constraints may be taken into account. They apply the principle that government should be of law, rather than men, even in the administration of justice itself. And in absence of unified court system the conception of uniformity in law and administration of justice is a myth. The application of the principles of judicial unification is essential to the achievement of an efficient and just legal system.
Keeping these basic principles in mindthe framers of ourConstitution who aspired to make Indian legal system an instrument of delivery of justice guided by principles of equality and liberty incorporated the concept of unified and integrated judicial system in India. These very aims and aspirations are reflected in the preamble tothe Constitution. Supreme Court (SC) is the highest court in the country while the High Court (HC) being the highest in the state.The lowest court in the judicial system is the court of judicial magistrate on whom the HC of the concerned state exercises control and supervision. In fact, the HC exercises control and supervision over all the courts in the state by virtue of Art. 227. According to the Art. 141 read with Art. 144An appeal can be filed in the SC against the decision of the HC and decision given by it is binding on all courts in the country including the HC and the HC is bound to act in aid of the SC.HC is the appellate court for allcourts in the state and the SC being the appellate court for the HC.In this waythe Constitution itself stipulates for a unified judicial system.
In the light of above discussion,the establishment of sharia courts is an attempt to create extra constitutional forums which is abjectly against the principle of ‘One law for all’, a basic feature of unified judicial system and a further slide towards privatized justice and parallel legal systems. Law and legal system must always correspond to the changing need and morality of society. The very establishment of sharia courts would be moving back towards the archaic law and morality which is too unjust and unfair from the perspective present society.
This proposition no doubt raises a crucial issue as to whether there could be two parallel legal systems in operation-one legal and the other religious, particularly when the Constitution of India prohibits discrimination on grounds of caste or religion, and whether the right to freedom of religion could be extended to the establishment of a parallel judicial system. The extra- judicial activities of these extra constitutional courts which are a blatant interference with the fundamental rights of the citizens will be grossly arbitrary in terms of administration of justice. The responsibility of the state cannot be abdicated. It would be like giving sanctity to caste Panchayats which work on the medieval discriminatory principles and completely banned by article 14 and 15 of the constitution of India.
The constitutional promise of gender justice and equality vis-à-vis sharia courts
The constitution of India aims for justice and equality for its citizens as stipulated under article 15 and 16 as fundamental rights and under article 38 as directive principles of state policy and without giving women’s place in constitutional scheme of justice and equality the whole legal system is a stark failure. The establishment of sharia court is an attempt to perpetuate the old patriarchal system where the prospect of justice to women would be put on stake. As evident by various decisions which make into news time and again. there are instances like Asoobi and Jatosnara where the sharia courts have asked the victims to accept the rapist as their husband and divorce their real husband, there are instances where these the clerics are seen to be releasing fatwas on various personal issues of women like dress, code of conduct in society, discriminatory prohibitions restrictions and other patriarchal colored diktats. It is highly possible that in such courts these patriarchs will interpret the laws with masculine bias and would render grave injustice to women in the guise of formal adjudication.
Hence the sharia courts are in contravention to the rights of women and against the spirits of unified judiciary (which is a symbol of progressive legal system based on the principles of equality) which both are enshrined in constitution. The conception of sharia courts is unconstitutional and must be condemned as an evil attempt to undermine the sanctity of the constitution.
Snehil Kunwar Singh & Bhaskar Kumar are 2nd Year, B.A. LL.B. (Hons.) students at National Law School of India University, Bangalore