A Welcome Ruling
It is gratifying to note that the Supreme Court’s ruling on the Darul Qaza and Shariat Courts has been widely welcomed by quarters within the Muslims community. Courts carry out the sacred duty of administering justice under a democratic polity and this space should not be allowed to be appropriated by anyone, let alone partisan interests.
Any dilution of the authority of courts and interference in their functioning should be seen as an attempt to undermine the strength of the foundations of a democracy. Seen from this perspective, the ruling makes it abundantly clear that no panel, body or organization other than the courts would have the right to punish individuals, withdraw liberties or curtail rights of people and hand down fiats that impose any kind of sanctions against individuals or collectives of people. The Court has made it abundantly clear that such bodies would have no judicial recognition and their rulings will not be bindings on anyone. They will rule only in cases where parties approach them voluntarily. Furthermore the decision arrived by them would not be treated as court verdicts, nor will be legally or administratively enforceable and individuals would have the right to accept, ignore or reject them.
Having said this, the apex court has defined the perimeter, jurisdiction and ambit of any such bodies that intervene in civil disputes among citizens of the country or their groups, with an intent to reconcile differences, negotiate compromises and suggest remedies aimed at avoiding the procrastinating as well as highly expensive legal course. The Court has neither invalidated the fatwas nor has held the Darul Qaza illegal. All that it has said is that judicial bodies must carry the sanction of the law and should owe their existence to legislatures.
While some sections of the media have read too much into the ruling, there is no reason for jubilation for even the supporters of Darul Qazas. What can be perceived clearly is that no extrajudicial bodies can be tolerated on the land and if at all communities wish to opt for some dispute resolution mechanism, it should have no powers beyond arbitration, reconciliation and negotiation. Their decisions will take effect only if the disputants wish to accept them voluntarily. The power to interpret the Constitution and legal enforcement of decision will rest solely with the judicial system that carries the sanction of the law. Similarly, no infringement of civil liberties or fundamental rights will be tolerated. There have been attempts in the past to curtail freedom of Muslim women or imposing a dress code or to restrain them from riding bicycle or travelling alone or compelling them to comply with elders’ choice in matters of selecting a spouse. The ruling clearly restrains the Darul Qaza or sharia panchayats from doing anything that is ultra vires of Constitutional rights. It will be worthwhile to look at the ruling from this angle and appreciate the spirit in which it safeguards the authority of law and banishes the role of Khap panchayats, kangaroo courts and extralegal structures.