Personal laws ought to be administered by the regular law courts and cannot be enforced in derogation of fundamental rights by religious courts that lack legal sanctity. This is the broad import of the Supreme Court’s thoughtful ruling on the legality of Dar-ul-Qazas, or Sharia-based courts, established in different parts of the country to adjudicate disputes among Muslims. Fatwas issued by Sharia courts are not legally binding on individuals averse to submitting to their authority, the Court has ruled. However, it has declined to ban these adjudicatory bodies, holding that Muslims desirous of obtaining the expert opinion of Islamic scholars in Dar-ul-Qazas can continue to invoke their jurisdiction voluntarily. The ruling has thus clarified the correct status of these Sharia courts. They can exist and issue opinions, but are limited in their scope and applicability to individuals who approach them voluntarily, and not at the instance of third parties to a dispute. These rules will hopefully protect individual Muslims, especially women, from possible persecution through controversial adverse orders, often issued without regard to their fundamental rights. Fatwas on religious issues are acceptable, but no fatwa that violates fundamental rights may be issued; they may not be issued at the instance of third parties on issues that concern individuals, and more importantly, they must not be issued to punish the innocent.
The Supreme Court has preserved the religious character of these Sharia courts, noting that they do not constitute a parallel judiciary, but an “informal justice delivery system with the objective of bringing about amicable settlement between parties.” It is important that the Supreme Court’s intervention, at the instance of a petitioner who wanted Sharia courts to be banned, is understood in the correct perspective. The All India Muslim Personal Law Board (AIMPLB), which has set up most of these Dar-ul-Qazas, has a duty to regulate their functioning and restrain them from issuing edicts that violate fundamental rights. It is true that in the Imrana case, one of the three instances the Supreme Court has referred to, the controversial fatwa dissolving a marriage and ordering a woman to leave her husband after she was raped by her father-in-law was not issued by a Sharia court but by a Muslim panchayat. However, an Islamic seminary endorsed the fatwa initially, and the AIMPLB claimed that the incident of rape did not occur at all. In some parts of the country, Muslim women have formed women’s Sharia courts for themselves, contending that orders of Sharia courts are invariably adverse to women. It is up to bodies like the AIMPLB to reform the functioning of the Sharia bodies.