Parallel Judiciary in India

Author - Abhishek Chansoria, 1st Year student of IIT Law School (RGSOIPL).

The governance of our country rests on three pillars: the legislature, the executive and the judiciary. It is the Constitution which has bestowed these separate powers on the three. The same Constitution has left some elbow-space for the personal laws of an individual providing for non-intervention of the State in the personal issue of an individual, namely religion. But, what happens when this personal religious institution takes up the job of any of the three? Will the policy of non-intervention still hold its importance? If it doesn’t, then when does the need of such intervention arise?

The major personal laws in force in India are the Hindu and the Muslim laws. Every common law has been formed and subsequently evolved according to the comforts of the society. Be it the patriarchal northern India based on Aryan lines, or be it matriarchal southern and eastern India influenced by the Dravidian society, both have been churned with time to suit the ever growing society. Whereas it is evident that the Muslim laws have a heavy bias towards the male counterparts, the Hindu polygamy practices before the Srinivasa Aiyar v. Saraswathi Ammal, 1951 and the subsequent Hindu Marriage Act 1955 also reflect the plight of women. The government’s stance to abolish polygamy in Hindus was a blazing example of a legislation driving a social change.

In the Muslim communities, the practice of issuing Fatwa is a grave over-exercise of jurisdiction by an institution. In the judgment given by the Supreme Court of India in Vishwa LochanMadan v. Union of India, fundamental rights given to the people are considered to be above personal and religious norms. Article 13 of the Constitution states that every law which is in contravention with the Constitution is void. From the very first day of the enactment of the Constitution, certain fundamental rights have been recognized. Hence, every action violating our rights is void. A fatwa is not given a legal mandate and hence it has been left at the choice of the individual to follow the same. The authorities issuing Fatwa do not draw its power from any legislation, hence, the concept of deductive reasoning simply tells us that the Fatwa also do not hold any legal sanctity. In the words of the Supreme Court- “The power to adjudicate a provision must flow from a ‘validly made law’”, which involves the legislature. The religious institution should exercise advisory actions pertaining to the need for a balanced solution approach.

The khap panchayats are infamous for their orthodox and conservative stand in inter-caste marriages. A myriad of cases of honor killings are coming forward with every passing day.

Along with the analysis of the need to check certain authorities from over-stepping actions, it is imperative to acknowledge the social evils addressed by the same authorities. As we know that a Muslim community in Pakistan and a Muslim community in India have the same religious genesis but what is different between the two societies is the political will which has driven them further. On one hand, the handful amendments in the Muslim personal law show the political escapism in our country, and on the other hand, the drive to acknowledge social changes which is a proof of political desperation is surfacing in Pakistan.

In the last week of May, 2014 the religious leaders of Pakistan issued a Fatwa stating honor killings as an "Un-Islamic" act. The leaders opined that daughters are the gifts by Allah and being dishonored by them is forbidden in Islam. There is a need to look at our neighbour’s religious approach to the common laws.

A fatwa which is issued for curbing the practice of honor killing, hence upholding the right to life, liberty, free will of women and men shows the institutional responsiveness to address the social evil. Whereas, the authorities in India issue a fatwa, which is prima facie so retrograde, "advising" a rape victim to marry the rapist, who is her father-in-law. The fatwa also stated that her husband can no longer keep any physical relationship with her as it is written in Quran that "Marry not the women whom your father copulated".   

 

Talking about the khap panchayat’s involvement in evils like honor killing, a question on the authority of the Khap needs to be answered. From where do they draw the power to adjudicate such draconian laws? The Supreme Court of India has used the term “kangaroo courts” for such institutions. But, a critical point of analysis remains that, though we have a well written Constitution along with its machinery, still the provisions dictated by such authorities are recognized by a large part of the population under them. Doesn’t it show the social status and acceptance enjoyed by them?

As it is well evident that the three pillars of our democracy have somewhere lacked in filling this lacuna between the people (affected by such Fatwa and Khap) and their constitutional rights, hence it will be prudent to use the authorities already present on the ground for the constitutional realization. This can be done by strict and careful regulation on such institutions and there powers. The khappanchayats have been blamed for the honor killings, but recently a Khap namely, 'Satrol KhapPanchayat' in Narnid village, Haryana, has come forward with its ideology which is far from conservatism. The Khap hasagreed with the truth that interaction between men and women has increased andstopping it is not possible. The decision given by the five-member committee has loosened the knot by allowing marriages in 42 villages which were earlier banned. Also, it has shown desperation is curbing female foeticide, bride sharing and dowry.

We can conclude that whatever be the laws; personal or statutory, should not go against the Constitution. The Constitution is above every personal law as it ensures happiness for all not on the basis of religion but on the lines of individual dignity.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.