Ananthakrishnan G, Indian Express ,November 03, 2006
PIL: They’re a dispute redressal forum without enforcement powers: Govt to SC
NEW DELHI, NOVEMBER 2: In A controversial move, the UPA government has defended the Darul Qaza or Shariat courts in the Supreme Court, saying their existence posed no challenge to the country’s judicial system. In an affidavit filed in the court, the Centre even defended the “jaziya tax” imposed by Aurangazeb as a mere “special tax” which non-Muslims had to pay for failing to render military service.
“The history of Darul-Qaza and legislative history of the enactments in the form of Regulations and Acts in respect of appointing Muslim Law officers to Court would show that the institution of Darul Qaza has never been and is not in derogation of or in conflict with the official/ recognised judicial system in India,” the Union of India said in the affidavit filed in response to a public interest litigation.
The PIL filed by Vishwa Lochan Madan had alleged that existence of Shariat courts and the fatwas issued by them were a threat to India’s judicial system. The Centre said that the courts were an alternative dispute redressal forum, which performed a “conciliatory role” without powers of “enforcement”.
The government linked the setting up of Shariat courts to the freedom guaranteed to minorities under Article 26 of the Constitution and denied they were a parallel judicial system. “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 matter of religion would include the freedom to establish Darul-Qaza/ Nizam-ul-Qaza to settle disputes between two persons professing Islam, according to Shariat,” the affidavit said. Besides, their existence did not prevent Muslims from reporting to the courts of law, the Government said.
On fatwas, the affidavit said these judgments could best be considered the opinion of the Mufti who undergoes special training before his anointment. “The Mufti proceeds on facts submitted to him for his opinion. The Mufti has no power and therefore does not investigate the veracity of the facts submitted to him,” it said, adding the Mufti had no power either to impose his opinion either by way of fine or sending the person to jail.
The Government also sidestepped the controversy over the fatwas issued in the Imrana case, saying, “the case of Imrana has been found not to having been referred to any of the Dar-ul-Waza/ Nizam-e-Qaza”. The affidavit also dodged questions on the fatwas issued in the case of Jyotsna Ara of Assam and Asobi in Haryana, both of whom were raped by their fathers-in-law, saying the petitioner had not made the Muftis who had given the fatwa party to the petition. “In any event, few bad examples may lead to the abolition of a system which otherwise is found useful and effective,” the Centre submitted, requesting the court to reject the PIL.