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Above: Akhil Bharatiya Hindu Mahasabha activists at a demonstration in Lucknow/Photo: UNI

With the startling news of these courts being set up in various parts of UP, there is fear that these “kangaroo” courts will usurp the sovereign functions of the State and act as extra-judicial bodies

By Atul Chandra in Lucknow

Having failed in its attempt to get the Shariat courts (often equated with Darul Qaza) in the country scrapped, the Akhil Bharatiya Hindu Mahasabha has decided to establish a parallel judicial system for Hindus by setting up a “Hindu court” in Meerut this Independence Day. On the face of it, the term sounds more like a “khap panchayat” which acts as an extra-judicial body.

To nip the “divisive” and “unconstitutional” move in the bud, Ankit Singh, a lawyer based in Allahabad, has challenged it in the Allahabad High Court through a public interest litigation (PIL). Singh’s advocate, Rohan Gupta, told India Legal: “The power to adjudicate is sovereign. No one can usurp that power.” He called the idea of Hindu courts “absolutely absurd”.

The PIL asserts that “the Hindu courts are wholly illegal, an outrage to the Cons­titution and an affront to the judiciary and must be stamped out ruthlessly”.

The first-of-its-kind court will decide all matters pertaining to Hindus. The Mahasabha’s national secretary, Pooja Shakun Pandey, a PhD in mathematics and a master’s in computer science, has been appointed “judge” of this court which will deal with matters like marital discord, property disputes and harassment of Hindu women. Pandey has claimed that she has knowledge of law.

Though much of this will be on the lines of Darul Qaza, the Hindu courts will be starkly different from these courts in that they will have their own jails and the judges can even award capital punishment.

The newly-appointed judge was of the view that, irrespective of caste, the Hindu courts will aim to bring all Hindus together even as the BJP is trying to divide them to keep its hold on power. On the constitutionality of the Hindu court, Pandey said that her court “does not need any kind of sanction” and will function like the Shariat courts which work according to their law.

The by-laws of the Hindu court are expected to be declared on October 2. Five more judges will be appointed in the western UP districts of Hathras, Aligarh, Mathura, Firozabad and Shikohabad on November 15, 2018, the day Nathuram Godse was hanged, to redress the grievances of Hindus.

Pandit Ashok Sharma, the national vice-president of the Hindu Mahasabha, said that he decided to set up a Hindu court after his demand to scrap Shariat courts was not met. “We had challenged the establishment of Shariat courts (Darul Qaza) a few days ago and asked that they should not exist at all because there should be one constitution for all…. Since the government had not taken any action in our favour, we set up the first Hindu court here on August 15,” Sharma reportedly said.

In a dig at Prime Minister Narendra Modi, Sharma said the Hindu courts were being set up in reaction to the Darul Qaza which neither the Supreme Court nor 56-inch chest was ready to close. The day Darul Qazas are closed, we will wind up the Hindu courts, he said. As for the qualification required to be judges of these courts, Sharma said they should be highly qualified and be well-versed with Hindu scriptures, Chanakya “Neeti” and Naarad “Neeti”.

Kamlesh Tiwari, the former national president of the Hindu Mahasabha, backed the setting up of Hindu courts. He reportedly said: “Musalman samvidhan nahee maante, toh Hindu koi bewakoof hain? Hum bhee apne hisab se adaalatein banaayenge (Muslims don’t follow the Constitution. Are Hindus idiots? We too will have our own courts).”

Like the All India Muslim Personal Law Board’s logic that Shariat courts dispensing justice as per Islamic law helped reduce the burden on civil courts, the Meerut district president of the Hindu Mahasabha, Abhishek Agarwal, made a similar argument in defence of Hindu courts. “The civil courts already have lakhs of pending cases making it difficult to get justice for a person who is poor. So by means of Hindu courts, people will be able to get quick and affordable justice,” Agarwal is reported to have said.

The petition denounces the statements of Pandit Sharma and Pandey. Their statements, it said, were proof that the Mahasabha “wants to take law in their own hands” and were tantamount to “usurping the sovereign functions of the state”. The setting up of such courts, the petition contends, mocks the “sanctity of the constitutionally appointed courts” and also “colours justice with religion”.

The petition avers that the “setting up of ‘Hindu courts’ itself amounts to setting up an adjudicatory mechanism parallel to the courts, which is clearly usurping the power of the sovereign functions of the state”. It describes Hindu courts as “unconstitutional and unfathomable” and contends that the constitution of these courts neither has any “legal pedigree” nor any sanction under the “law of the land”.

As these courts were thus wholly illegal, they would fall in the category of “kangaroo court”, the petition argues. As such, any steps for the execution of any decision of these courts would invite penal action under the Indian Penal Code, the petition says.

The observations of the Supreme Court on the “illegality of formation of Kangaroo courts such as Khap panchayats” would be relevant in the case of Hindu courts. The petition quotes the apex court as observing: “The ‘Khap Panchayats’ or such assembly should not take the law into their hands and further cannot assume the character of the law implementing agency, for that authority has not been conferred upon them under any law.

“Law has to be allowed to sustain by the law enforcement agencies. For example, when a crime under Indian Penal Code is committed, an assembly of people cannot impose the punishment. They have no authority. They are entitled to lodge an FIR or inform the police. They may also facilitate so that the accused is dealt with in accordance with law. But, by putting forth a stand that they are spreading awareness, they really can neither affect others’ fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.”

Praying for the dismantling of the Meerut court and restraining the Hindu outfit from establishing more such courts, the petition submitted “that the establishment of such ‘Hindu courts’ is a de facto way of dividing the country and creating secession. It endorses an unhealthy precedent of mainstream religion-based justice system in secular India. Therefore, the establishment of such courts is clearly against the spirit of secularism, which is deeply embodied in our Constitution and forms a part of its basic structure”.

Taking cognisance of the petition, a bench of Chief Justice DB Bhosale and Justice Yashwant Varma asked the petitioner to implead the district magistrate of Meerut and Dr Pandey, and issued notices seeking their response. The Court asked the counsel for the state government to apprise it of the matter on the next date of hearing which has been fixed for September 11.

Zafaryab Jilani, convener of the All India Muslim Personal Law Board (AIMPLB), said that people confuse Darul Qaza with Shariat courts. “We have Darul Qaza and not Shariat courts. Darul Qazas were there only for reconciliation. Unlike the Hindu courts, the Darul Qazas were not empowered to award punishment,” Jilani pointed out, adding, “We are not complaining about the Hindu courts.”

He said that the concept of Darul Qaza is 1,400 years old and is part of Muslim Personal Law. “If the Hindu Law also has a similar provision, let them have it,” Jilani added.

Dismissing the Hindu Mahasabha’s claim that the central and state governments had ignored its request to close down Darul Qazas, Jilani pointed out that Darul Qazas had the sanction of the Supreme Court which has dealt with the issue in detail in two judgments.

However, the BJP is not enthused by the idea of a Hindu court. Party spokesman Alok Awasthi said that all institutions, whether of Hindus or Muslims, which have the sanction of the Constitution alone should be allowed to function.

According to Pandit Sharma, the Hindu courts will be guided by laws drawn from Manusmriti, Chanakya “Neeti”, Naarad “Neeti”, the Mahabharata and the Ramayana. A 21-member committee, comprising some retired officers and intellectuals, has been constituted for framing the laws, he said.

Even the Hindu Law formulated by the British has drawn from the ancient legal text. Whether the new law now being formulated will interpret the ancient scriptures differently remains to be seen. The Hindu Mahasabha is adamant on making the existing laws governing Hindus irrelevant.

It is obvious that this issue will not die down easily.

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