Short History of Shariat Laws in India

Updated: Jul 19, 2021


Historical Background

Shariat law is the law which is governed by the Muslim personal law application act 1937 [1] many people believe that Muslim religion was originated from a country named Arabia various tribe came together and determined what should be called as law whether written or unwritten Muslim law. The roots of Muslim law can be found way back in 1206 on the Indian Penisula, the Muslim law kept on developing during the reign of the slave dynasty, Khilji dynasty, tughlaq dynasty, the Lodi dynasty and the Sur dynasty when these clans were in power they were assisted by Mufti who dealt with cases involving personal law among Muslims. During the Sher Shah regime the forces of the court were limited and Muslim law was adjusted to suit the prerequisites of the occasions. A doctrine was introduced which called as power of Ulemas which is known as the doctrine of Islamic law its power was reduced and shattered the dominance of the orthodox Sunni school. After that ruler Aurangzeb ordered the formation of proper code of law and its compilation. Many people debate that the existence of Muslim law is very unorthodox after the Muslim rule got vanished and the east India Company entered the India and the British raj introduced the Shariat act 1937.



Constitutional Background

After this India got its Independence during the rule of the British era existence of fundamental rights was nowhere to be seen there was constant torture on the citizens of the country after independence. India got its constitution and the fundamental rights were recognized in the country for the first time it was a drastic change for the citizens of the country. The Shariat application law which was introduced by the British government after the independence of the country the act was maintained in Indian society. Several changes were made in Muslim law and it was evolved from time to time, after the establishment of Islam origin source of law was determined from Quran a holy book and also known as good’s will so it became a customary source of law. Written teachings and lessons mentioned in the holy book Quran, and all unwritten customary laws govern the Shariat law and Islamic society. Shariat law evolved from time to time after the death of the prophet different schools were formed, 4 different schools were formed which interpreted the law according to their ideology. The four schools are as follow (Hanafiyya, Malikiyya, Shafiyya and Hanabaliyya) Muslim Population dominated countries adopted the teachings of the following schools for Muslims. The writings of Quran are given foremost importance in the Shariat act that contains marriage, divorce, inheritance, family relations and the state will not involve in the personal matters.



Threat to women rights?

The applicability of Shariat law has been in question because many people blamed that it violates the women rights one landmark case which raised this issue was Shah Bano case[2] the facts of the case were 62-year-old Shah Bano filed a lawsuit and the issue was to seek the alimony from her former husband, the supreme court gave the decision in her favor but Islamic community contended and challenged that the decision of Supreme Court is not according to the Shariat law which stated that the particular matter was not mentioned in the holy book Quran as after this court’s jurisdiction was questioned and the extent to which the personal law’s should get involved was also questioned, plenty of protest were seen the issue was first raised in early 1930 women faced discrimination from personal laws in all religions the Shariat law protects the application of Muslim law but it doesn’t define the law. Shariat courts were made to safeguard and enforce Shariat laws, Shariat laws cannot be called a court in its strict or true sense they are more like an arbitration centre the working of these courts are like Muslims can approach the Qazis women often approach Qazis for matter relating to marriages and divorce, marriage and maintenance the governance of Shariat courts in India is now managed by All India Muslim Personal Board (AIMPLB). Muslim courts are known for their controversial decision and verdict, the AIMPLB wants to open Shariat courts in every district of India and this decision faced a lot of backlashes because many people thought that the Muslim population is looking to make a parallel justice system just like our country already had which seemed wrong the AIMPLB contested that the working of the Shariat courts will be done according to the Indian Constitution so it was decided that the verdict given by Shariat courts cannot be enforced neither it can become a precedent because Qazi doesn’t hold such legal authority. In Viswa Lochan Madan Vs Union of India[3], in this case it was held by Supreme Court that fatwas or decision given by Shariat Courts doesn’t hold any place in independent India as these verdicts cannot be enforced on the parties, and it can be challenged in the court as there is no legal sanction which backs these verdicts. As the Shariat courts existed in this country from a pre British era so the constitutional validity of these Shariat courts can be backed if we read Article 13 along with Article 372[4] it allows the acts which are made before the existence of constitution backed by one condition that they should not violate the fundamental rights which are given in the Indian Constitution, so according to this Shariat courts are legally sanctioned. It was contended that personal law doesn’t comes under the purview of article 13 as the Shariat law covers the personal life or personal law of Muslims thus it is not a codified law, but in the constitution it is mentioned in article 13, 14, 25(1), 29(1) safeguarding of rights of minorities but it doesn’t involve setting up of Shariat courts. This situation explains that there is some kind of legal sanction attached to Shariat courts but the existence of these courts are questioned because they are not mentioned in the constitution explicitly.


Functioning

The working of sharia courts are as follows-

1) The presence of lawyer is not mandatory as the parties can argue their case themselves in front of the judge.

2) The Jury system is not present in the functioning of shariat courts as these courts consist of a single judge who is addressed as Qazi and the matters are presented in front of him.

3) The historical functioning of court proceedings is not followed in shariat courts so the proceedings of the case take place casually.

4) The verdicts or decision of shariat courts cannot be imposed on parties as they are not binding verdicts so the parties can choose to ignore the verdicts which are passed by the shariat courts.



Conclusion

The conclusion is that sharia courts do lack legal sanctity in India and Supreme Court themselves ruled out that such courts cannot act as a parallel justice system in the society because of this the verdicts of courts cannot be bind on the individual or parties and can be challenged in the court, currently sharia courts are not illegal but some of the controversial decisions passed by them still remain a challenge for a developing country like India.



References
[1] https://legislative.gov.in/sites/default/files/A1937-26.pdf 
[2] https://blog.ipleaders.in/case-law-summary-mohd-ahmed-khan-v-shah-bano-begum-others-1985-air-945/ 
[3] https://islamiclaw.blog/2018/02/13/commentary-vishwa-lochan-madan-v-union-of-india-2014-and-the-uncertain-boundaries-of-muslim-personal-law-in-india/ 
[4] https://www.lawctopus.com/academike/article-13-analysis/ 



~Authored by Rochan Datta

98 views0 comments