Amidst raging debate over ‘fatwas’ issued by Shariat courts, the Centre has defended the Muslims’ right to have such courts saying it was part of their fundamental right to freedom of religion guaranteed under the Constitution.
“The functioning of Dar-ul-Qaza would be protected under the fundamental rights enshrined in Article 25 and 26(b) of the Constitution,” the Centre said in an affidavit filed in the Supreme Court in response to a PIL seeking ban on Shariat courts.
Article 25 guarantees freedom of conscience and free profession, practice and propagation of religion while under Article 26(b) every religious denomination enjoys freedom to manage its own affairs in matters of religion.
The petition filed by one Vishwa Lohan Madan last year sought direction to the Centre and other authorities to ban ‘Shariat Courts’ for running a “parallel judicial system” in the country.
But the Centre said, “Freedom guaranteed by Article 26 to every religious denomination or every section thereof to establish and maintain institutions for religious and charitable purposes and to manage its own affairs in the matters of religion would include the freedom to establish Darul-Qaza/Nizam-ul-Qaza to settle disputes between two persons professing Islam, according to Sharia.”
The Government emphasized that “it is not a parallel judicial system” as the Qazis or Darul-Qaza/Nizam-e-Qaza did not prevent Muslims to report matters to the Judicial Machinery set up under the law of the land.
“Those who do not resort to Darul-Qaza/Nizam-e-Qaza are at liberty and fully entitled to resort to the court of law.
There is no question of compelling anyone not to report matters to the judicial machinery,” the affidavit filed by the Ministry of Law and Justice said. It also sought to dispel the impression that it created confusion in the minds of “uneducated multitude of Indian Muslim citizenry”.
On the controversial issue of ‘fatwa’ issued by the ‘Shariat Courts’, the Centre said ‘fatwa’ meant “opinion” and even the seeker of opinion was not bound to follow it.
It submitted that “the Mufti has no authority or powers to impose his opinion and enforce his ‘fatwa’ on anyone either by imposing any penalty as a fine or send him to jail.”
Howver, it termed as “few bad examples” the ‘fatwas’ issued in cases relating to Imraana, Jyotsna Ara and Asoobi.
Justifying their role of ‘Shariat Courts’ in the Muslim society, the Centre said they “are conciliatory and/or mediatory for a, which strive to settle disputes outside the courts expeditiously in an amicable and inexpensive manner and have no real power or authority to enforce its orders.”
Terming the system of Islamic courts as a form of Alternative Disputes Redressal Forum, the Government said, “it mainly performs conciliatory role without any enforcement powers.”
The Centre said that in a number of cases Courts of Law have accepted the decision of Darul-Qaza and made them rule of the Court and passed decrees accordingly.
“It is also in vogue in many non-Islamic countries, for example, in England,, which has a population of about 15 lakh Muslims, unofficial Sharia Panchayat are functioning.”
Email Satya Prakash: