By Aditi, WBNUJS
Editor’s Note:This paper seeks to identify the significance as well as challenges of the doctrine of religious arbitration from its western experience, especially in the USA, thereby analyzing its scope of application in the Indian legal framework. It explores the linkages between the western experience and the Indian situation in this regards and strives to bring out the lessons that can be learnt by India from the western conditions in this regard. Religious arbitration systems have existed for quite a long period in the west and they have been prominent and successful in countries like US, since the Courts have been able to enforce their awards. The author is of the opinion that such endeavors would help in curing the insecurities of various religious communities by answering their concerns of self-governance on one hand, while balancing the concerns of public interest on the other.
The historical linkage between law and religion has long lost its formal recognition. However, its existence cannot be completely denied till this day. The doctrine of religious arbitration can be cited as one of the latest examples in this regard. The doctrine, under a widened ambit of the idea of autonomy under the system of arbitration, can be perceived as a tool for giving religion a backdoor entry to the legal framework. While the significance of such systems cannot be completely denied, they are nevertheless posing some critical challenges for the law of arbitration, among others, which involves the reconciliation of legal as well as religious principles.
A lot of ink has been spilt on the legitimacy and importance of religious arbitration in countries like Canada and the United States where many systems under this doctrine have been flourishing. On the Indian legal scenario, many such informal systems are surfacing owing to the increasing demands of self-governance by certain communities. This paper seeks to identify the significance as well as challenges of the doctrine of religious arbitration from its western experience, especially in the USA, thereby analyzing its scope of application in the Indian legal framework. It explores the linkages between the western experience and the Indian situation in this regards and strives to bring out the lessons that can be learnt by India from the western conditions in this regard.
DOCTRINE OF RELIGIOUS ARBITRATION: THE WESTERN EXPERIENCE
According to Michael A. Helfand, the prominence of religious arbitration can be attributed to the emerging ‘new multiculturalism’ which has shifted its focus from the ‘old’ ideas of recognition to the ideas of group autonomy and self-governance.[i] According to this ‘new multiculturalism’, maintenance of identity of various religious or cultural groups is inherent not only in protection of the symbols and histories of their faith but also in a sort of ‘jurisdictional differentiation’.[ii] Religious Arbitration emerges as a tool for meeting such objectives of these groups by facilitating dispute resolutions in accordance with their respective religious principles.
Religious arbitration systems have existed for quite a long period in the west. The Beth Din or the Jewish Rabbinical arbitration court is the most common religious arbitration institution in the United States. Besides this, the largest Christian arbitration service there is Peacemaker Ministries which offers legally non-binding as well as binding mediation and arbitration services. Biblical scriptures serve as a general guide of decision making in such proceedings. Islamic dispute resolution services are also available, and may take the form of either mediation or arbitration.[iii] Their prominence and success in countries like US, for the most part can be attributed to the willingness of the secular courts to enforce their awards.
The encouraging attitude of the secular courts in the US towards such systems can be reasoned on various grounds. Besides Helfand’s argument of multiculturalism, the more formal reasoning behind the legitimacy of these systems has been largely derived from the ideas of contract enforcement and party autonomy under arbitration. As such, the supporters of this doctrine argue that if two parties agree to refer any dispute to a religious forum, such an agreement should be honored by the court.
Also, it is argued that such systems enhance the freedom of religion of the multicultural groups and enables them to ‘adhere to the strictures of state law without sacrificing their commitment to their religious practices’.[iv] The last and probably the most significant argument favoring the operation of these systems is that owing to the religious question doctrine in US and many other secular countries, which prohibits the courts from adjudicating on religious questions, sometimes results in leaving certain matters concerning religion devoid of an appropriate dispute resolution forum. This has created voids in the law which may be filled by the religious arbitration systems.
Despite the legal legitimacy derived from the arguments above, the challenges that the doctrine of religious arbitration poses in a western setup cannot be overlooked. Beginning with submission to religious arbitration, theoretically, it can be said that parties cannot be coerced to enter into a religious arbitration agreement. In case of such occurrence, the safeguards of contract law are always present to hold the contract unenforceable. However, in practice, there is a great social pressure of their respective community on the parties to adhere to such dispute resolution systems.
This adherence is perceived as giving respect to the postulates of one’s religious community and any deviance in this regard is generally frowned upon. As such, this might raise concerns about the volitional nature of the arbitration process. The provisions of contract law do not come for rescue here as most of the courts in the US have held such pressure as not sufficient to void the religious arbitration agreements on the grounds of duress.[v] Further, often the actors causing duress are not recognised in these cases, which makes it all the more difficult to be proved in the court of law.
Further, discrepancies arise during the process as well. Most religious arbitrations mandatorily employ the procedures as given in their respective religious doctrines. While this use of mandatory procedural law is seen by some as an advantage, as most of the arbitrations lack a body of procedural rules. However, the mere existence of a procedure cannot ensure its fairness.[vi] Many conflicts can be spotted between these procedural doctrines and the secular law which can put party interests at stake. There is a lack of substantive and procedural protections for vulnerable groups like women. Religious codes frequently contain provisions that discriminate against women. For instance, under Jewish law, women cannot act as arbitrators. In some systems, there is a bar on female testimony.[vii]
Other procedural safeguards like the right to counsel may not be provided under a number of religious systems.[viii] Furthermore, religious tribunals, at times, impose religious sanctions similar to those associated with communal shunning[ix] against parties who refuse to appear in response to a filed claim civil cases. As such, argument of the Muslim Canadian Congress that “the religious arbitration law would permit religious clerics to turn back the clock and use the judicial system to enforce their waning authority over vulnerable communities” may seem to hold ground.[x]
However, these inconsistencies brought about by the religious arbitration systems cannot be deemed to be without a remedy. The pro-religious arbitration scholars often argue public policy to be an umbrella safeguard against the evils of this doctrine. Due to lack of enforcement capacity, the religious arbitration awards are enforced by the courts. As a statutory ground of vacatur of arbitral award, public policy can be adhered to by the courts to set aside the awards which substantially conflicts with the secular law. Hence, according to this line of argument, judicial review negates any chance of injustice that may happen in the course of the functioning of these tribunals.
C. CAN PUBLIC POLICY ANSWER ALL QUESTIONS?
While theoretically this may seem to fill the empty voids of the religious arbitration systems, the practical picture portrays a different scenario. The general practice of the US courts with respect to the application of effective judicial review on religious arbitrations is on a liberal side. Seemingly, the absence of any other forum to decide on religious matters is the root cause behind this. However, irrespective of the cause, the outcome has a potential of putting much at stake.
The arbitration agreement in such arbitrations often contains religious doctrines which the courts avoid interpreting owing to the religious question doctrine. As such important issues like the appointment of arbitrators, procedural norms of the arbitration and so on are often not looked into by the courts, making the practice of judicial review futile.[xi]
Even where these questions are looked into by the courts, a practice of circumventing statutory review has developed where even those arbitrations which do not conform to statutory requirements are held to be valid and enforceable in the garb of party autonomy. The justification is that the parties voluntarily consented to the proceedings and knew what they were getting into,[xii] which is not always the case. This approach risks not only the interest of the parties to the arbitration agreement but also the third parties which might be affected due to the blind adherence of the ‘party autonomy’ in such cases. Hence, this has curbed the power of judicial review to a great extent.
This sometimes causes the parties to reach a peculiar paradox: they have to participate in the arbitration till the end in order to submit the case to the review of the courts, at which point the court may refuse vacatur on grounds of the deemed consent of the party to the proceeding.[xiii] Even if the consent barrier is surpassed, post-arbitration statutory review may be compromised by religious question restrictions.[xiv] This poses a serious problem in perception of judicial review as an effective safeguard against the negatives of the religious arbitration doctrine.
In the western experience the religious question doctrine forms the basis of encouragement that religious arbitrations receive from the secular courts. However, the same doctrine has lead to an undue enhancement of the scope of such institutions, thereby putting the interests of the subjects at stake. However, in the countries like India where the idea of secularism is different from the western perspective, the existence of such systems in the social scenario, as well as the attitude of courts towards such systems, presents a significantly different framework.
RELIGIOUS ARBITRATION: INDIAN PERSPECTIVE
A. NATURE AND SIGNIFICANCE
On the Indian legal scenario, the doctrine of religious arbitration is not that developed and institutionalized as in the west. This is probably because of the Indian ‘state-accommodationist legal structure’ as termed by Ayelet Shachar[xv] in terms of religious interests. However, certain informal institutions have lately started cropping up, especially under the Islamic law which, in pursuance of Helfand’s new multiculturalism, seek the enforcement of their religious laws through an appropriate forum.
In India, such institutions exist in form of panchayat like institutions, majorly Islamic in nature. Institutions like the All India Muslim Personal Law Board (AIMPLB) and The Imarat-e-Shariah have established such ‘Shariah Courts’, as they are popularly called, in some towns and cities. Besides these, many informal institutions of similar nature have been established by the communities itself in certain parts of the country. Such institutions are locally known as ‘darul qazas’. These institutions of dispute resolution, like the arbitration tribunals in the west, apply religious law to solve disputes among parties of the same religion. However, these institutions largely limit their jurisdiction to family disputes.[xvi]
Unlike the religious arbitration in United States and other western countries, such courts do not have a state backing. The courts cannot be approached for enforcement of orders pronounced by such institutions. The process is an informal one and the enforcement of awards granted in such cases is done through social pressures. However, the completely private nature of such institutions adds up to the already complex nature of the religious arbitration doctrine. As in the western scenario, the lack of procedural safeguards and prevalence of discriminatory practices in such systems have an effect of reversing the legislative reforms done in this regard. Considering the social framework in the Indian society with religion deeply rooted in the foundations, the social pressure to submit to such institutions is quite high, and in some cases takes the form of a mandate.
Although the justification given for such courts is the application of Shariah law by those who are most knowledgeable to it,[xvii] there have been issues of interpretation of religious law amongst these institutions as well. Further, the sanctions imposed by such institutions are often widely inappropriate and in contravention with the state law.[xviii] As mentioned above, these institutions have a completely segregated existence from the courts. As such, no provision of judicial review is possible unless a separate suit is filed, which is quite rare in cases of the vulnerable groups who often suffer the brunt under these institutions.[xix]
C. RECONCILING RELIGIOUS ARBITRATION AND INDIAN ARBITRATION LAW
There has been a rising demand by the parent institutions like AIMPLB to grant state backing to the judgments given by such institutions and grant them a final and binding status. While an umbrella provision granting finality and enforceability to all the judgments of such institutions would intensify the problems under such a private regime, the idea of formalizing these institutions by bringing them under the ambit of state arbitration laws may deserve consideration.
Here the complexities arisen in the western experience with respect to the religious arbitration doctrine may raise doubts about the validity of such an idea. However, a comparative analysis of the practical aspects of Arbitration Law in both the scenarios points out that the Indian setup is capable of filling the voids of the state-backed religious arbitration systems to a significant extent without drawing into the problems that seem inherent in the western counterpart. As such bringing such systems under the ambit of formal arbitration laws can help reconcile the community objectives as well as individual interests through a pre-existing bridge which has already gained legal and social acceptance.
A plain review of the provisions of Arbitration and Conciliation Act 1996 (hereinafter the act), which is the governing law of arbitration in India, is enough to diminish any doubts regarding the legitimacy of these institutions under Indian law. The new act, based on UNCITRAL model law was brought about with an objective to ensure party autonomy and minimize judicial intervention to every extent possible. Right from the appointment of the arbitrators to the procedure followed, the parties have full liberty to decide the conditions of arbitration, subject to certain non-derogable provisions of the act.
Section 11 provides for provision enabling parties to agree upon conditions for appointment of the arbitrator. In the case of failure of the parties to do so, the matter may be referred to the Chief Justice of High Courts (in case of domestic arbitration) or the Chief Justice of India (in case of international arbitration) or their respective designates.[xx] However, unlike the western courts where the power of appointment by the courts may be curtailed owing to the religious question doctrine,[xxi]the Indian scenario facilitates this to be done under Section 11(8) of the act. Under this provision, the appointment of the arbitrator by the Chief Justice has to be done while having ‘due regard to any qualifications required of the arbitrator by the agreement of the parties’. Therefore, in the case of religious arbitrations, any religious condition or doctrine regarding the appointment of the arbitrator can be read as ‘qualifications’ under this clause. Absence of religious question doctrine helps the courts in reasonably interpreting any such condition.
Also, courts have held the function of appointment of the arbitrators as a judicial one[xxii] and hence the courts, while interpreting any such conditions can call for any kind of aids for helping them interpret the doctrine according to the parties’ contemplations. Besides the appointment, even the procedure of arbitration can be decided by the parties with least interference by the state legal institutions.[xxiii] As far as the awards granted by the arbitration are concerned, the court cannot generally interpret it on its own accord. This can be done only in case a party applies to the court under section 33(1)(b) of the act. As such, party autonomy is preserved.
Above discussed provisions are indicative of the fact that the freedom of religion which these religious tribunals seek to protect seems to be consistent with the provisions of the Arbitration and Conciliation Act 1996, given its approach upholding party autonomy. As far as the conflicting interests inherent in the religious arbitration doctrine are concerned, the act also provides appropriate remedies in this respect. These largely include the provisions of equal treatment of parties[xxiv] and challenging an arbitral award[xxv].
D. LEARNING FROM THE WESTERN EXPERIENCE
Although the challenges of the religious arbitration systems may be different under both the aforementioned legal setups, the remedies are largely the same, thereby placing a heavy burden on the grounds of public policy yet again. However, their effects sure portray a distinction. The application of public policy by the Indian courts in this regard can enhance the consistency between the functioning of the religious courts and the general community as well as individual interests.
The grounds that broadly can be held relevant in this regard are the provisions of challenging an arbitral award on grounds of inability to present the case and public policy. The former provision incorporated under section 34(2)(a)(iii) of the act can prove as a remedy to vulnerable parties against discriminating procedural measures as well as lack of procedural safeguards, for instance, the right to counsel under a particular religious law. The latter provision regarding public policy is incorporated under section 34(2)(b)(ii) of the act. It is a general provision and would act as a safeguard for other discrepancies and conflicts arising out of the religious awards. Broadly, awards can be set aside under this ground if it is contrary to the fundamental policy of Indian law, interest of India or justice and morality.[xxvi]
However, this does not jeopardize the party autonomy by unduly interfering with the arbitration proceedings and awards thereof. The 1996 Act makes a provision for supervisory role of courts for the review of arbitral awards only to ensure fairness. The intervention of the courts is envisaged in few circumstances only.[xxix] The courts cannot go into the merits of the case and are generally hesitant to interfere where it involves application of mind on the part of the arbitrator and any injustice or inconsistency is not prima facie apparent.[xxx] Courts also cannot interpret the Arbitration Agreement nor can doubt Arbitrators Interpretation unless inherently illegal or in case of an application under Section 33 of the Act by a party to interpret a part of the agreement. Courts also lack any suo moto powers of interference under the 1996 Act.[xxxi]As such, the mechanism can be held as appropriate to uphold party autonomy while facilitating the balancing of interests thereby meeting the ends of justice.
The western experience with the concept of religious arbitration, notwithstanding its significance, has not been a pleasant one, thereby leading to a ban in regions like Ontario. In the Indian scenario, however, the western experience can be used to strengthen the already enhancing socio-legal legitimacy of religious tribunals, while ensuring the general prevalence of basic principles of natural justice in the process.
Some challenges may still remain unanswered, for instance, meeting the formal requirements of written agreements and so on in initially informal setups of religious tribunals, revising the scope of judicial review under the general public policy clause so as balance the concerns raised by religious arbitrations as against other arbitral matters and so on. Discussion of these challenges is beyond the scope of this paper. However, further evolution and modification of law in this regard can be undertaken keeping in mind the special nature of this kind of arbitration in the future to further mold this concept in order to tap the potential of these institutions while at the same time mitigating the damage caused by it. Appropriate editions can be made to the Arbitration Laws in India for this purpose with special reference to religious arbitration.
If structured carefully, the framework provided by religious arbitrations can provide the much-needed gateway to the religious tribunals, thereby bringing them under the ambit of the judicial scrutiny. Such endeavors would help in curing the insecurities of various religious communities by answering their concerns of self-governance on one hand while balancing the concerns of public interest on the other.
Formatted on 16th March 2019.
[i]Micheal A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, New York University Law Review, Vol. 86 No. 1, 1231 (2011)
[iii] Nicholas Walter, The Status of Religious Arbitration in United States and Canada, Santa Clara Law Review Forthcoming Vol. 52 (2012) available online athttp://ssrn.com/abstract=1854746 (last visited 28th February, 2012)
[iv] Micheal A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, New York University Law Review, Vol. 86 No. 1, 1231 (2011)
[v]See, e.g. Greenberg v. Greenberg, 656 N.Y.S.2d 369, 370 (App. Div. 1997); See also Mikel v. Scharf, 432 N.Y.S.2d 602, 606 (Sup. Ct. 1980)
[vi] Micheal A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, New York University Law Review, Vol. 86 No. 1, 1231 (2011)
[vii]Nicholas Walter, The Status of Religious Arbitration in United States and Canada, Santa Clara Law Review Forthcoming Vol. 52 (2012) available online athttp://ssrn.com/abstract=1854746 (last visited 28th February, 2012)
[viii] Michael C. Grossman, Is This Arbitration? : Religious Tribunals, Judicial Review and Due Process, Columbia L.R., Vol. 107, No. 1, 169 (2007)
[ix] Justin K. Miller, Damned if You Do, Damned if You Don’t: Religious Shunning and the Free Exercise Clause, 137 U. PA. L. REV. 271, 272-73 (1988).
[xi] Michael C. Grossman, Is This Arbitration? : Religious Tribunals, Judicial Review and Due Process, Columbia L.R., Vol. 107, No. 1, 169 (2007)
[xii] See, e.g., Kovacs v. Kovacs, 633 A.2d 425, 433 (Md. Ct. Spec. App. 1993)
[xiii] See Elmora Hebrew Ctr., Inc. v. Fishman, 593 A.2d 725, 731 (NJ. 1991)
[xiv] See Ginnine Fried, Comment, The Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular Courts, 31 Fordham Urb. LJ. 633, (2004) at 654
[xv] Ayelet Shachar, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, Theoretical Inquiries in Law, Vol. 9, No. 2, (2008), 573, 582
[xvii] Sikand, Y. The Muslim Personal Law Borard’s Shariah court campaign, Qalandar, September, 2005, as cited in id.
[xx] Arbitration and Conciliation Act 1996, Section 11
[xxi] Michael C. Grossman, Is This Arbitration? : Religious Tribunals, Judicial Review and Due Process, Columbia L.R., Vol. 107, No. 1, 169 (2007)
[xxii] SBP and Co. v. Patel Engineering AIR 2006 SC 450
[xxiii] Arbitration and Conciliation Act 1996, Section 19
[xxiv] Arbitration and Conciliation Act 1996,Section 18
[xxv] Arbitration and Conciliation Act 1996, Section 34
[xxvi] Renusagar Power Co. Ltd v. General Electric Co, 1994 AIR 860
[xxvii] Gibson, Christopher S., Arbitration, Civilization and Public Policy: Seeking Counterpoise between Arbitral Autonomy and the Public Policy Defense in View of Foreign Mandatory Public Law (April, 24 2009). Penn State Law Review, Forthcoming; Suffolk University Law School Research Paper No. 09-26. Available at: http://ssrn.com/abstract=1394447
[xxviii] Amelia C. Rendeiro, Notes: Indian Arbitration and “Public Policy”, Texas Law Review [Vol. 89:699]
[xxix] Mc Dermott International Inc. v. Burn Standard Co. Ltd.
[xxx]See e.g. BOC India Ltd. v. Bhagwati Oxygen Ltd. (2007) 1 Arb LR 476, 485; See also M.K. Chitkara v. Union of India (2008) 4 Arb LR 271
[xxxi] Samantaray Constructions Pvt Ltd v. State of Orissa (2007) 2 Arb LR 309, 315