Upholding law

The Supreme Court has done well to clarify the status of shariat courts and the fatwas they issue on personal and social issues in the Muslim community.

 It has made it clear that they do not enjoy any legal status and that the shariat courts cannot issue any orders that violate the fundamental rights of citizens.

This is in line with the consistent  position of the court  that the basic rights, guaranteed by the Constitution, cannot be abridged by any agency or authority, including parliament or government, which have lawmaking or enforcement powers. The court does not consider shariat courts in  themselves as unconstitutional, but has rightly said that they should not be considered as a parallel judicial system. The court’s order does not detract from the validity of Muslim personal laws but only seeks to ensure that their enforcement does not lie with the shariat courts.

That is why the conditions spelt out by the court become important. Apart from the norm that a shariat court’s decisions should not be in conflict with the fundamental rights, the court has also laid down that it cannot intervene in or adjudicate cases where an individual involved in an issue or dispute does not approach it.

There is also no obligation on an individual to abide by the fatwas. A number of recent fatwas,  like the one banning an all-girl band in Kashmir from performing or ordering a daughter-in-law to marry her rapist father-in-law, have become controversial. The problem, however, is not always of legal validity but of social sanction. Even some Muslim organisations admit that there will be pressure on individuals to accept the decisions of shariat courts because of the religious veneer they have.

It has been observed that it is mostly women who suffer from the faulty decisions of shariat courts because they are more vulnerable than men. The argument that they provide a cheap and speedy alternative for settlement of disputes is also debatable. Khap panchayats and other forums of dispute settlement which exist in some parts of the country also make the claim, and claim legitimacy by invoking tradition and conventions. But the decisions are often retrograde and go against the legal rights of individuals. They also act on the complaints of third parties and without those involved in disputes approaching them.