Law and Society

Of Inconsistencies and Inequalities: SC on Shariat Courts vis-á-vis Khap

Aishwarya Ajayan

The different approaches adopted by the judiciary in similar issues have resulted in a failure to accord equal significance to the constitutionally granted rights.


The Supreme Court of India is regarded as the protector of our constitution and the fundamental rights & liberty of individuals. In fact, the court has over the years delivered many commendable decisions recognising and protecting constitutionally granted rights of the citizens. The Supreme Court has more often than not stood up for religious liberty and associational rights as well. At this juncture, however, certain peculiarities in terms of the parameters used by the court in similar situations are noteworthy.

The recent judgment of the court on the issue of Shariat court has gained prominence in this regard. The decision of the All India Muslim Personal Law Board (AIMPLB) to establish 40 Shariat Law courts in the country received mixed reactions from different sections of the society. While some considered the legal aspects of such an entity, others deliberated on the religious liberty underlining the formation of such courts. In this context, it would be pertinent to note the decision of the Supreme Court in Vishwa Lochan Madan v. Union of India (AIR 2014 SC 2957). The court delivered a judgment effectively recognising the Shariat courts as associations by declaring it to be extrajudicial and not illegal. The court, however, limited the power of such courts by stating that they cannot pass decisions and any such fatwas issued shall not be enforceable. This is a legally sound judgment as the court gave importance to the constitutional right of association under Article 19(1)(c).
Another decision in a similar situation was the Shakti Vahini v. Union of India judgment (AIR 2018 SC 1601) on Khap Panchayats. The court delivered an admirable judgment after deep consideration of the issues, involving inputs from different states, recommendations of the 242nd law commission and condemned the attack on individual liberty of adults. The court declared that convening any gathering in the nature of Khap panchayat is not permissible under law and effectively declared it illegal.
The difference in these two decisions is that in the Vishwa Lochan Madan decision, the court considered the fundamental right of association granted by constitution and in the Shakti Vahini decision, the court considered the individual liberty of adults and violation of human rights.
This difference in approach undertaken by the court in similar issues in both the cases require attention.


The Supreme Court, in the case of Shakti Vahini v. UoI, noted extensively about liberty and recognised the duty of the judiciary to zealously guard the right to liberty of an individual “as the dignified existence of an individual has an inseparable association with liberty”. Along with liberty the court also recognised the paramount importance of a life with dignity and the right to choose. To quote the judgment, the court said “life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person”. The court related liberty of a person to the identity of a person thereby according more significance to the right. This liberty was particularly considered in the context of marriage of two consenting adults.
The case of Vishwa Lochan Madan v. UoI, though consisted of similar issues, the court did not discuss the aspect of individual liberty in the same. The court referred to Imrana’s case where the status of marriage of a woman who was raped by her father-in-law was questioned. In place of recognising and protecting her and her husband’s individual liberty, the Shariat court dissolved the marriage. The Supreme Court here failed to note this unreasonable violation of individual liberty.

Protection of Women’s Rights

One of the most ironical aspects of the Shariat law case is the claim made by AIMPLB that the establishment of such courts are necessary to guard and protect the rights of Muslim women who find it difficult to approach the judiciary of the land due to the delay in justice and financial constraints. This argument should be considered in light of Imrana’s case where the Shariat court mercilessly dissolved the marriage of the woman who was raped by her father-in-law and thereby put her in untold misery. In place of protecting women’s rights as claimed, their decision caused harm to the liberty and right of choice of the woman. Moreover, the judiciary while considering this issue, too, noted the plight of the “innocent” husband who was made to refrain from maintaining a physical relationship with his wife and failed to notice the injustice meted out to the woman in the equation. Though the culprit was punished by the judiciary through a criminal proceeding, the approach of the court has not been women friendly in this instance.

The SC, though found that Shariat courts had no legal status, lauded the object of the establishment of such courts as well.
The Supreme Court did not make this misreckoning in its decision regarding Khap panchayats where it recognised the rights of the woman and rebuked a society that polices her and fails to protect her right of choice. The court stated that such organisations violate human rights and promote vigilantism and declared its maintenance to be impermissible under law. The different approaches adopted in similar issues is perplexing.

Consent of Parties

In the case of Shariat courts, the court held that the fatwas issued by such courts cannot be enforced but it can be followed by the parties out of their own will. The court also stated that such courts cannot take up suo motu cases and can only act if issues are brought to them by the parties. India being a republic governed by rule of law, the tolerance of any inhuman or arbitrary decision by a Shariat court or a Khap panchayat is a stain on our democracy.
Certain differences of these two associations cannot, however, be ignored. It can be seen that in case of Shariat courts, the Muslim personal law is applied in resolving disputes whereas in Khap Panchayats, it is customs and conventions that help in decision making. But these differences do not negate the legal violations that is caused by both the entities. The actions taken by the Khap panchayats result in offences under the IPC and causes violation of individual liberty. The court was efficient in recognising this and probing it in depth.


It is true that in Shariat court case, the Supreme court stated that they have no legal validity and ruled that it cannot make enforceable decisions. Yet the court failed in viewing the infringement of individual rights with the same gravity as it observed the same in the issue of Khap Panchayats. The issue to be debated by the state and the judiciary is the uniform approach to be adopted in dealing with non-state forums, like Shariat courts and Khap panchayats, when they invoke religion and culture in composing decisions that violate constitutional values and individual rights. Aside from rescuing the people aggrieved by the decisions of such non-state forums, the question to be considered is whether the judiciary can hold these non-state forums responsible for the egregious violations of individual liberty committed by them.

Aishwarya Ajayan is a fourth year B.A., LL.B (Hons.) student at the National University of Advanced Legal Studies, Kochi.

Image Source: Shaun Curry/AFP/Getty Images


Categories: Law and Society, Politics

1 reply »

  1. Great read. Though I am not someone from a legal background but from pure common sense I can say that both Shariat Court and Khap panchayat are wrong as bench in both justify and judge simultaneously the legality or illegality of action and actor. In our court of law the responsibility of justification lies with Lawyer and responsibility of judgement lies with the bench.

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