Author: Ananthakrishnan G
Publication: The Indian Express
Date: November 3, 2006
URL: http://www.indianexpress.com/story/15886.html
Introduction: They're a dispute redressal
forum without enforcement powers: Govt to SC
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.
anantha.krishnan@expressindia.com
