India: Supreme Court judgment on fatwas needs close eyeBy Subir Ghosh Jul 09, 2014 11:23PM UTC
Too much hot air is being blown into Monday’s Supreme Court judgment clarifying that fatwas are not binding on Muslims. That’s possibly because there’s a new government in New Delhi that is led by the Bharatiya Janata Party (BJP), and some people have a morbid tendency of contextualising issues. In fact, if anyone contextualised anything, it was the Supreme Court.
The court ruled that fatwas are not illegal, but are also not legally binding on those against whom they are made. It was hardly a historic judgment, as some would have one believe, that can set the stage for the possible enactment of a Uniform Civil Code that has been high on the priority list of the Hindu nationalist party, which is now at the helm of affairs. If anything, the Indian apex court has only clarified a number of things – both for Muslims, and their detractors. That’s all.
What the two-member Supreme Court bench did on Monday, while categorically disposing of the petition which had challenged the validity of Sharia courts, was to ink that proverbial thin line between the black and the white. The confusion, if any, had been in the minds of radical Muslims and their equally steadfast opponents. The court only dispelled the clouds of confusion. The judgment, as such, is a sane reminder for those who are too myopic to notice that thin line.
It is important to examine closely what the two-member bench comprising Justices Chandramauli Kumar Prasad and Pinaki Chandra Ghose had remarked while passing its 17-page judgment on the writ petition filed by advocate Vishwa Lochan Madan arguing that the All-India Muslim Personal Law Board (AIMPLB) was establishing was a parallel judicial system in the country in order to impart justice under the Shariat, or the Islamic canonical law. The petitioner had cited the infamous Imrana case where a fatwa had decreed that the woman, who had been raped by her father-in-law, should leave her husband and instead marry the rapist. Madan had contended that this fatwa and another similar one had the ostensible support of the AIMLPB.
The board, which was a respondent in the case, admitted that it was indeed establishing Dar-ul-Qazas (personal law courts) and training Qazis and Naib Qazis (clerics), but also said that these Dar-ul-Qazas had no authority. The Dar-ul-Uloom, Deoband also admitted issuing the fatwa in the Imrana case, but again pleaded that it had no agency or power to enforce its fatwas.
The bench remarked, “The power to adjudicate must flow from a validly made law. Person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law.”
The judges agreed that the Dar-ul-Qazas were an informal justice delivery system with an objective of bringing about amicable settlement between parties. “It is within the discretion of the persons concerned either to accept, ignore or reject it.” In other words, a fatwa is not illegal, but it is ‘not legally binding’. The two are not the same. Moreover, since these ‘courts’ are not legal entities, defying a fatwa cannot be either a civil or a criminal offence.
But on a cautionary note, the judges said, “One may not object to issuance of fatwa on a religious issue or any other issue so long [as] it does not infringe upon the rights of individuals guaranteed under law. Fatwa may be issued in respect of issues concerning the community at large at the instance of a stranger but if a fatwa is sought by a complete stranger on an issue not concerning the community at large but individual, then the Darul-Qaza or for that matter anybody may consider the desirability of giving any response and while considering it should not be completely unmindful of the motivation behind the fatwa.”
The bench went on to say, “We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue fatwa concerning an individual, unless asked for by the person involved or the person having direct interest in the matter.” That would be like giving unsolicited advice (on part of the Dar-ul-Qazas). It is important not to miss the context here: in the Imrana case, neither the husband nor the wife had asked for the clerics’ opinion.
Issuing a fatwa cannot be illegal, per se, but coercive imposition certainly can be. The judges said, “Issuance of fatwa on rights, status and obligation of individual Muslims, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights.” This is what those issuing fatwas that go beyond solving ordinary disputes need to heed. Simply put: don’t exceed your brief.
And if you do, you would be breaking the law: “Any person trying to enforce that (a fatwa) by any method shall be illegal and has to be dealt with in accordance with law.”
The judgment was far-reaching only in this sense: Indian courts can well reach out to those who break the law through fatwas. That’s all there is to Monday’s fatwa story.