Madras HC's order declaring Sharia courts illegal is a start; Supreme Court must follow suit

The Madras High Court order of 19 December that declared Sharia courts functioning from mosques across Tamil Nadu as illegal is of far-reaching consequences. The court said, "If a place of worship — whether it be temple, mosque or church — is used for purposes other than prayers, and more specifically to create extra-constitutional forums, certainly the authorities are duty-bound to take action against them." The order, delivered by a bench of Chief Justice Sanjay Kishan Kaul and Justice M Sundar, shows a ray of hope for the Indian republic because India has recently seen the birth of parallel courts being run by Islamic groups — many of them funded by Saudi money.

This might also be the first time that the higher judiciary has made it clear that "extra-constitutional forums" like Sharia courts are illegal and unacceptable. The order came on a petition challenging the extra-constitutional role of Chennai-based Makka Masjid Shariat Council, which has been engaged in administering justice in Muslim family disputes. The high court order also clarifies that mosques, churches and temples can only be used as a place of worship — a point with which no religious group should have any disagreement. The order is not specific to Muslims and empowers police and administrative officials in Tamil Nadu to close down any extra-constitutional court whether run by Muslims, Christians or Hindus.

 Madras HCs order declaring Sharia courts illegal is a start; Supreme Court must follow suit

Representational image. Reuters

However, it is not clear if the 19 December order applies only to those Sharia courts that function from mosques, or also to those which operate from madrassas and non-religious places. A large number of Sharia courts — managed by imams (prayer leaders) and Islamic scholars associated with mosques, madrassas and religious organisations — operate from places that are not mosques. Therefore, there will be a need for further legal clarification on this subject. Otherwise, these Sharia courts in Tamil Nadu will simply move away from the mosques to non-religious places in order to skirt the high court order.

In July 2014, the Supreme Court of India had declared that the Sharia courts run by Islamic clerics have no legal basis, and their orders are not binding and can be challenged in a court of law. The Supreme Court order effectively meant that government officials and police officers are free to close down extra-constitutional institutions like Sharia courts. However, the Madras High Court order is clear in that it makes the operation of Sharia courts illegal. But this order applies on to the state of Tamil Nadu. Ultimately, the Supreme Court too will need to deliver such a clear judgment that outlaws parallel courts across the country.

As the world is witnessing the rise of jihadi groups worldwide, India too has seen the emergence of radicalisation among Muslim youths in favour of the Islamic State and Al-Qaeda. India is at present surrounded by two countries where jihadi forces are strong: Bangladesh and Pakistan. Within India, a number of new Islamic organisations and NGOs are being formed whose funding comes from Saudi Arabia and other West Asian countries. Between 2011 and 2014, around 25,000 Wahhabi preachers reportedly visited India.To counter jihadism, both courts and government officials in India need to have a clear thinking that the modern Indian State cannot allow a parallel legal system to continue to function in the country.

In this context, it is a matter of concern that a number of Islamic clerics and religious organisations are running Sharia courts across the country. Such courts are known by many names such as Dar-ul-Qaza (House of Justice) and Dar-ul-Ifta (House of Fatwas). They deliver fatwas that are supposed to be juristic opinions but carry more weight than the law. Almost all major religious groups, mosques and madrassas such as Darul Uloom Deoband run such parallel Sharia courts.

Two Islamist organisations engaged in running aparallel Sharia-based legal system are prominent: the All India Muslim Personal Law Board (AIMPLB) and the Bharatiya Muslim Mahila Aandolan (BMMA), both of which run Sharia courts. While the role of AIMPLB in running Sharia courts and promoting an orthodox version of Islam across India is well known, the BMMA has got some legitimacy in the press for the reason that it is opposed to the practice of instant triple talaq. Due to this, BMMA is seen as a legitimate organisation by women's rights groups but for all practical purposes, it is a Sharia group out to promote the same religious orthodoxies that its male counterparts in the AIMPLB do. The Bharatiya Muslim Mahila Aandolan announced last July that it is training 30 women judges in Quranic law.

India is a hugely diverse country that was divided in 1947 in the name of religion, not by the Rashtriya Swayamsevak Sangh or the Bharatiya Janata Party. It is to the credit of the framers of the Indian Constitution that they did not come under the influence of the communal nature of the Partition, and despite the Muslim-Hindu bloodshed that was raging at the time, delivered an authentic secular Constitution to the people of India. The Madras High Court order reminds us that Indians must not accept parallel courts and religious organisations like the AIMPLB and the BMMA which ultimately sow the seeds of partition from the country's mainstream.

The author is a former BBC journalist and is presently executive director of the Open Source Institute, New Delhi. He tweets @tufailelif

Updated Date: Dec 20, 2016 15:55:26 IST