Nov 23, 1998

The Shias set up their own Shariat court to help the community avoid protracted litigation. But its effectiveness is suspect with voices of dissent already audible.

By Farzand Ahmed

Barely three days before Muslims, specially members of the Shia sect, celebrated the birth anniversary of Hazrat Ali, the last Caliph, on November 2, a group of ulemas and lawyers assembled at the Chhota Imambara in old Lucknow to remind the community of what the holy Quran has decreed -- those seeking justice from sources other than the Shariah (Allah and the Prophet) were zalim (barbarous) and fasid (rebels). The assembly of scholars under the banner of the Shariat Court Conference (SCC) then promptly announced the setting up of a Shariat court to deal with problems relating to the Muslim Personal Law and the Shia Waqf properties.

According to the Imamia Educational Trust (IET) which organised the meeting, the SCC is an effort to awaken and motivate the Shias to settle their disputes in accordance with the Shariat (Islamic law) and save them the bother of getting stuck in protracted legal battles. Describing it as a wake-up call to the ulemas, IET General Secretary Maulana Syed Ali Hussain Khummi said the court became a necessity as the ulemas were paying no heed to problems of the Shias.

The idea of setting up a Shia Shariat court is not new. It was first mooted in 1993 by All India Muslim Personal Law Board (AIMPLB) at its Jaipur session. But it had to be shelved because some Muslim intellectuals opposed on the ground that the maulvis were trying to create a parallel judicial system in a secular country. They felt such a court might provoke a controversy and a backlash. Similar Sunni Shariat courts, called "Dar-ul-Qaza", are already functioning in Bihar and Orissa but this is the first Shia court.

This time round, the SCC moved quickly to give a concrete shape to the idea and set up a 15-member "judiciary" comprising Shia ulemas and lawyers, with two judges as advisers. According to Maulana Mujtaba Ali Khan Adib-ul-Hindi who presided over the SCC, the two advisers would provide basic guidelines so that the court's decisions do not come into conflict with the law of the land and the Constitution. Says renowned Shia theologian Kalbe Sadique, aimplb vice-president: "The Shariat court would not only help the community solve its disputes mutually but also minimise the workload of judiciary."

The intentions, no doubt, are noble. But the court has already run into rough weather. There is resentment among some Shia leaders over the selection of members of the court's bench. The very first day, Maulana Khadim Hussain, the founder-member of Imam Raza Foundation of India and the driving force behind the court, rejected the SCC list of members and submitted a fresh one. He said the members should have full knowledge of Islamic law and have no links with any Waqf. Says Syed Mohammad Hassnain Abidi, general secretary of the All India Shia Conference: "This court will neither come into being nor will it help the community with the type of members it has as judges."

One of the major reasons for setting up the Shariat court is to seek redressal for illegal occupation of Shia Waqf properties worth crores of rupees in Uttar Pradesh by individuals and state government agencies. The IET alleges that the state Government constructed a power house on Waqf land near Asafi Imambara. The immediate provocation for setting up the court, however, was the "illegal" occupation of the "Azimullah Khan Ka Karbala" by the state Housing Board in Lucknow recently and the construction of a hospital in its place. The Shia Waqf Board has been ineffective in preventing the takeover of these properties as in most cases either the relevant documents are missing or Waqf officials have connived with encroachers. The Shariat court will collect evidence and documents and urge government agencies to return the properties. In case they refuse, the matter will go to the civil courts, which will examine the evidence collected by it and take a decision.

The aims of the court are laudable. But its effectiveness is suspect. Apart from questions being raised about the judges, the problem of enforcing its verdict is also bothering the ulemas and lawyers. The Shariat court's decision in a dispute is not binding on the litigants and can be challenged in civil courts. Khadim Hussain says in case an aggressor rejects the court ruling, it could issue a fatwa against him, leading to his social boycott by the community. But even that might not be very effective. Similar Sunni courts have failed to make an impact, let alone reduce the judiciary's burden. The ulemas hope this one will meet with a better fate.

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