Ignorance, hypocrisy or biasness on Fatwas & Shariat?

July 11, 2014 by  
Filed under newsletter-india

sharia courtsDelhi, July 08, 2014: Figure this out, in a long pending petition, since 2005, the petitioner Vishwa Lochan Madan pleads in the Apex Court that the All India Muslim Personal Law Board (AIMPLB) is striving to establish a ‘parallel judicial system in India,’ that makes it extremely difficult for Muslim women to get justice, he claims that Camps are being organised to train Qazis and Naib Qazis to administer justice according to Shariat; Dar-ul-Qazas, spread all over the country are functioning as parallel judicial system aimed to administer justice to Muslims in accordance with Shariat; and sought declaration that the Dar-ul-Qazas (Muslim Courts) and Shariat Court in India are “absolutely illegal, illegitimate and unconstitutional”; and further that pronouncing fatwas has no place in Indian Constitution and hence, these should be banned and effective steps should be taken to disband these Dar-ul-Qazas and to direct the Muslim bodies to restrain from meddling in personal issues of individuals.

The two judge bench of Chandramauli Kr. Prasad and Pinaki Chandra Ghose ‘dispose off’ the petition “without any order,” and even noted, “The grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived.”

Yes the bench did observe that fatwas (opinions, presented in the light of Islamic jurisprudence) and Shariat court or Dar-ul-Qazas have “no legal sanction and cannot be enforced by any legal process,” but in this it agreed completely with the views of not only the AIMPLB and Dar-ul-Uloom, Deoband, but also the Union of India, and respective state governments of Madhya Pradesh and Uttar Pradesh, who all noted that these “Fatwas are advisory in nature and no Muslim is bound to follow those” (Union of India); these are “not mandatory” (UP Government), “has no legal value” (MP Government). Further that, Dar-ul-Qaza can be “perceived as an alternative dispute resolution mechanism” (Union of India), which is an “informal justice delivery system aimed to bring about amicable settlement of matrimonial disputes between the parties” and has “no authority, means or force to get their Fatwas implemented (AIMPLB). It is thus “within the discretion of the persons or the parties who obtain Fatwas to abide by it or not” (Darul Uloom). All of them further agreed that thus “Dar-ul-Qaza does not act as a parallel Court for adjudication of disputes.”

In fact the SC noted, “The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status.”

But just because it has no legal status, is it legal? The Apex Court noted in its judgment, “It is not sanctioned under our constitutional scheme. But this does not mean that existence of Dar-ul-Qaza or for that matter practice of issuing Fatwas are themselves illegal,” adding, “It is informal justice delivery system with an objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned either to accept, ignore or reject it.”

“In our opinion, one may not object to issuance of Fatwa on a religious issue or any other issue so long it does not infringe upon the rights of individuals guaranteed under law,” the bench said in its judgment.

Subramaniyan Swamy, who was on the panel on TimesNow, I am sure, had not read the judgment, as he demanded from the Narendra Modi Government to implement the SC judgment, to which Arnab Goswami agreed.

What do above observations tell us? Whose views were upheld by the Court of Law? What should have been the headline? The news was that the writ-petition was reejcted and SC refused to pass any order, accepted the respondents’ views? Mind you, besides the Muslim bodies and the so called then secular governments at the center and UP, the respondents included the state of MP, ruled by the BJP.

Yet the headlines in the press were, “SC says no place for fatwa in India, sets up debate on civil code, khap” (IE), “Sharia courts not legal, can’t enforce fatwas, says SC” (HT), “Shariat courts run by Muslim clerics, fatwas have no legal sanction, rules SC” (FirstPost), “Fatwas have no legal standing: Supreme Court” (ToI), “Historical judgment in India: Fatwas, Sharia courts illegal, says Supreme Court” (OneIndia.in), “Fatwas not binding on anyone: SC” (PTI), etc. And the headlines of ‘panel discussions’ on prime time news TV channels, “SC ruling on Sharia courts: Will this affect religious diktats?” (CNN-IBN), “Shariat Courts or Kangaroo Courts?” (NDTV), “Debate: Can’t force fatwas” (TimesNow). When Advocate Ejaz Maqbool, councsel for the AIMPLB in the case, tried to elaborate on the judgment, pointing that the petitioner’s contentions were rejected in the court, the ‘conscience keeper’ of the nation called this line of agreement as “completely broken and illogical.” Earlier, when a cleric from Kashmir tried to put his views, he was snapped saying, “This is not Saudi Arabia.” And every time, he was pushed back by the panelists he took refuge in the BJP leader Subramaniyan Swamy.

And I am not even mentioning about the Hindi news channels.

Did anyone from the Muslim community, any cleric, or leader, or for that matter any court judgment had ever said that fatwas are legal or binding? Fatwas are opinions of matters pertaining to intricacies of everyday life that an individual can seek from a person with known knowledge of Islamic jurisprudence, like a Mufti or a Qazi. Because Muslims follow different sects and schools of thought opinions on several issues also vary between Shias and Sunnis. For example, some Shias scholar would hold Muttah (contract marriage as permissible); while among Sunnis it’s not allowed. Among Sunnis, similarly there are differences among Deobandis and Barelvis on many matters. Among Sunnis mostly people follow the fiq (jurisprudence) of one the four Imams – Imam Abu Hanifa, Imam Malik, Imam Shafi’I and Imam Ahmad ibn Hanbal. The Salafies (a sort of puritans), on the other hand, claim to practice the epitome form of Islamic practice purely based on Quran and Sahi Hadith and reject many of the rulings of these Imams. Theirrespective opinions on most matters thus differ and it is entirely on an individual, who he or she wants to follow.

It is misnomer to call Dar-ul-Qaza as ‘Shariat Court,’ for literally it would only mean the ‘office of Qazi.’ The Office of a Qazi simply advises on issues, but the term is often used. Shariat is the Islamic Canonical Law based on the teachings of the Quran and the traditions of the Prophet.

The Court in fact agreed that in matter of Islamic jurisprudence, Fatwas can be sought. “In our opinion, one may not object to issuance of Fatwa on a religious issue or any other issue so long 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, than 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.”

Barkha Dutt, on her show, kept asking how people not directly affected, also go and seek opinions on matter that create problem for others. One wonders, which particular fatwa she was talking to, but in the reports and panel discussions the purported fatwas issued against Imrana and Gudia (and against an all women band in Kashmir) were raised. The fatwa issued against Imrana was a reference point for the petitioner too. The learned bench had observed, “Though neither the wife (Imrana) nor the husband had approached for any opinion, an opinion was sought for and given at the instance of a journalist, a total stranger. In this way, victim has been punished. A country governed by rule of law cannot fathom it.”

supreme courtThe Apex Court was hence right in issuing cautions on the ground that fatwas have religious sanctity. “As the Fatwa gets strength from the religion; it causes serious psychological impact on the person intending not to abide by that,” and advised “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.”

If anything this was as much a warning to mischievous reporters trying to get provoking bites for the sake of creating controversy. From the purported fatwa on Sania Mirza’s dress to the one first issued by local cleric on Imrana, often the so called opinions passed are not by some Qazis or Muftis but local mullas, with limited understanding of Islam and issues of modern day life, at the behest of reporters. As the court pointed out the clerics must not be “unmindful of the motivation behind the Fatwa,” and must “consider the desirability of giving any response.”

The Apex Court is right in pointing that fatwa sought by any stranger on issues that does not remotely concern him or her, “may cause irreparable damage” and a “violation of basic human rights.” Such persons – both clerics and ‘stranger’ seeking fatwa – should in fact be penalized in my opinion.

Indian Express (and several other papers) also pointed out from the judgment that the SC said, “Faith can’t be used as ‘dehumanising force.” Of course it should not be, and the court right pointed out, “No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.”

Journalists and commentators with limited knowledge on Shariat and fatwa also think that the judgment will open the Pandora box, as now fatwas of Darul-Qaza may be challenged in court of law, as they cite from the judgment, “whatever may be the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. ”

The fact is that at many instances, they are already challenged as anyway Darul-Qaza does not have the power and force to implement its rulings. For example, Darul-Qaza directs brothers, sisters and relatives of a particular family how a property should be divided among them according to Shariat. Any party, not happy, can very well go and challenge the advisory in the court of law as it in any case has no legal standing. In Bihar there are several such litigations, for example. Even in case of Imrana, she continues to live with her husband.

So is everything hunky dory and media unnecessarily creating mountain out of mole?

Certainly not! The judgment also serves as a mirror to the community and they must introspect and the community leaders must come forward and take steps at modernizing the archaic practices and work towards codification of laws, in accordance with not only Shariat, but also keeping in mind the democratic secular and progressive ideals.

Increasingly it has been felt that they need training not only in Islamic jurisprudence, but also about modern day life, culture, society, politics etc, besides of course refresher course on handling of media. The countrywide establishment of Dar-ul-Qazas and training Qazis and Naib Qazis are thus a step in right direction, although as TCN had reported earlier , much needs to be done.

What is the need of the hour is much needed debate on codification of Muslim personal laws, the reference point for which should be progressive laws in other Muslim countries, and not some conservative and regressive system of governance. The codification of Muslim personal laws should not only take on board all the stake holders, but see to it that the concerns of women are particularly taken care of through constant consultations. It should also be mindful of secular traditions of the Indian Constitution.

In most Muslim countries and in erstwhile era of Muslim rule in India, the office of Qazis ‘Darul Qaza’ is institutionalized. It should be seen that fatwas are issued only by designated bodies and others should be discouraged to express their opinions publicly, or it should be well publicized that their opinions hold no value. As there are different schools and sects, a proper mechanism should be put in place by brining consensus.

– tcn

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