The Supreme Court recently ruled that Sharia courts have no legal sanction. Wajahat Habibullah, former chairperson of the National Commission for Minorities and former chief information commissioner, speaks to Manavi Kapur about the significance of community-specific family laws and the need to balance them with the law of the land
How is Sharia law, practised in various countries across the world, different from the way it is followed in India?
There is no Sharia law as such available in India. The Supreme Court has just said that Shariat has no legal sanctity. This is a system of personal exchange of opinions. The clergy is believed to be experts on the subject. If you want an opinion on the Koran, the Sharia court will only give you an opinion on it. It is not an enforcement agency and is entirely voluntary. For example, if you go to a mechanic for an opinion on your car, he cannot force you to do what he's suggesting.
You don't go to these courts for justice, you only go to them for an opinion. A fatwa literally means an opinion, it is not a decree. Unfortunately, the media often misunderstands it as a decree. The clergy has no authority in that sense. They are like judges who give a judgment if you ask them for one, like the khap. You can confirm these issues yourself from the Koran. But in sections of the society where people are uneducated, they treat these opinions like judgments. All that the Supreme Court has done in this case is to clarify that position.
The court's apprehensions regarding Sharia courts were that they violate and infringe upon human rights. Is there a counter-claim to this?
This is specific to the case in which the Public Interest Litigation was filed. All that the court has said is that the actions of the husband and the father-in-law were unreasonable and that it must follow the course of law.
The apex court stopped short of ruling the Sharia courts to be illegal. What implications does it have for the Muslim community in India?
It has only said such a court has no legal sanctity. Sharia courts are not doing something illegal by giving an opinion. And as for the Muslim community, the Supreme Court ruling has no implications whatever. In fact, there were no major outcry even from the clergy because they know that they are free to give advice which is not enforceable by law. People come to the clergy considering them to be learned on the question of the Sharia and, therefore, may desire an opinion because they don't feel qualified to interpret the Koran for themselves. Besides, they would want to know about precedents in other parts of the world. You are free to go to a second doctor for a second opinion if you are not satisfied with the first doctor. This is true in the case of a maulana as well.
How does the Uniform Civil Code play out in this situation? If such courts have no legal sanction anyway, how relevant is the code?
This has nothing to do with the code. There is Muslim Personal Law that is enforceable by court and by the Waqf boards under the Shah Bano amendment. So Sharia courts and Muslim Personal Law are not related. But the personal law is very different in Jammu and Kashmir, where pre-Islamic law exists. In such cases, the Shariat is very clear that pre-existing laws in a region will prevail. In formulating the uniform code, one can draw on the tenets of the Sharia. In the United States Supreme Court, Prophet Mohammed's is one of the faces engraved in the archway, among the great law-givers of the world. This is how civil law has evolved. It is possible to review them and essential components of the Sharia laws, where they are considered conducive to the promotion of the uniform code, can also be incorporated.
In a country as diverse as India, should law be based on faith?
Sikhs have objected to being brought under the Hindu Marriage Act and want the Anand Marriage Act to prevail. Christians have their own personal laws, and within Christianity too, there are different sects like the Syrian Christians. This subject needs to be put to a wider debate, and not be restricted only to Muslims. It is possible to balance the uniform code and personal civil law by keeping certain sections out of the purview of the code altogether. Personal laws need to be tightened, especially for marriage, where there is a strong case for a uniform code. The practice is already fairly uniform, even among Muslims who are allowed several wives but you will find very few men with more than one wife. Look at the case of Saira Banu - she told her husband that she would not accept another wife and he complied.
How is Sharia law, practised in various countries across the world, different from the way it is followed in India?
There is no Sharia law as such available in India. The Supreme Court has just said that Shariat has no legal sanctity. This is a system of personal exchange of opinions. The clergy is believed to be experts on the subject. If you want an opinion on the Koran, the Sharia court will only give you an opinion on it. It is not an enforcement agency and is entirely voluntary. For example, if you go to a mechanic for an opinion on your car, he cannot force you to do what he's suggesting.
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Have Sharia courts been successful as justice delivery systems?
You don't go to these courts for justice, you only go to them for an opinion. A fatwa literally means an opinion, it is not a decree. Unfortunately, the media often misunderstands it as a decree. The clergy has no authority in that sense. They are like judges who give a judgment if you ask them for one, like the khap. You can confirm these issues yourself from the Koran. But in sections of the society where people are uneducated, they treat these opinions like judgments. All that the Supreme Court has done in this case is to clarify that position.
The court's apprehensions regarding Sharia courts were that they violate and infringe upon human rights. Is there a counter-claim to this?
This is specific to the case in which the Public Interest Litigation was filed. All that the court has said is that the actions of the husband and the father-in-law were unreasonable and that it must follow the course of law.
The apex court stopped short of ruling the Sharia courts to be illegal. What implications does it have for the Muslim community in India?
It has only said such a court has no legal sanctity. Sharia courts are not doing something illegal by giving an opinion. And as for the Muslim community, the Supreme Court ruling has no implications whatever. In fact, there were no major outcry even from the clergy because they know that they are free to give advice which is not enforceable by law. People come to the clergy considering them to be learned on the question of the Sharia and, therefore, may desire an opinion because they don't feel qualified to interpret the Koran for themselves. Besides, they would want to know about precedents in other parts of the world. You are free to go to a second doctor for a second opinion if you are not satisfied with the first doctor. This is true in the case of a maulana as well.
How does the Uniform Civil Code play out in this situation? If such courts have no legal sanction anyway, how relevant is the code?
This has nothing to do with the code. There is Muslim Personal Law that is enforceable by court and by the Waqf boards under the Shah Bano amendment. So Sharia courts and Muslim Personal Law are not related. But the personal law is very different in Jammu and Kashmir, where pre-Islamic law exists. In such cases, the Shariat is very clear that pre-existing laws in a region will prevail. In formulating the uniform code, one can draw on the tenets of the Sharia. In the United States Supreme Court, Prophet Mohammed's is one of the faces engraved in the archway, among the great law-givers of the world. This is how civil law has evolved. It is possible to review them and essential components of the Sharia laws, where they are considered conducive to the promotion of the uniform code, can also be incorporated.
In a country as diverse as India, should law be based on faith?
Sikhs have objected to being brought under the Hindu Marriage Act and want the Anand Marriage Act to prevail. Christians have their own personal laws, and within Christianity too, there are different sects like the Syrian Christians. This subject needs to be put to a wider debate, and not be restricted only to Muslims. It is possible to balance the uniform code and personal civil law by keeping certain sections out of the purview of the code altogether. Personal laws need to be tightened, especially for marriage, where there is a strong case for a uniform code. The practice is already fairly uniform, even among Muslims who are allowed several wives but you will find very few men with more than one wife. Look at the case of Saira Banu - she told her husband that she would not accept another wife and he complied.