Friday, Oct 24, 2014

No place for fatwa in India; cannot be used to punish innocent: Supreme Court

Supreme Court says faith can't be used as 'dehumanising force', but refuses to declare Shariat courts, fatwas illegal. (Source : IE archive)
Written by Utkarsh Anand | New Delhi | Posted: July 7, 2014 11:50 am | Updated: July 8, 2014 8:05 am

The fatwa has “no place in independent India”, and “cannot be used to punish innocent,” the Supreme Court on Monday ruled. The court said a fatwa has no legal sanction, and restrained Shariat courts from unilaterally issuing directives that may affect the rights of Muslims.

Prohibiting institutions like Dar-ul-Qaza, Dar-ul-Iftaa and Nizam-e-Qaza from enforcing their orders using coercion, the court held that fatwa, which is basically an opinion delivered by an expert in Muslim personal law, can be issued only if parties approach them for adjudication of disputes, which are primarily civil and matrimonial in nature. A qaza is an order or a decree passed by Shariat courts.

“In any event, the decision or the fatwa issued by whatever body, being not emanating from any judicial system recognised by law, it is not binding on anyone including the person who had asked for it. Further, such an adjudication or fatwa does not have force of law and, therefore, cannot be enforced by any process using coercive method,” a bench of Justices Chadramauli K Prasad and P C Ghose said.

“The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his fatwa on any one by any coercive method,” the bench said.

The verdict is the first legal declaration on the validity of fatwas, and opens up an avenue for affected parties to challenge in a court of law orders of Shariat courts, besides restraining these institutions from issuing orders in the absence of the parties, or orders that are illegal or unconstitutional.

The court, however, declined petitioner advocate Vishwa Lochan Madan’s plea to disband these “parallel courts”, noting that although they were not sanctioned by law, they represented an informal justice delivery system with the objective of bringing about amicable settlements.

The court refused to declare these institutions, or the practice of issuing fatwas, as illegal, and noted that nobody may have an objection to the issuance of fatwas on religious or some community-related issues.

It observed that while there was unanimity that fatwa or qaza lacked a status under the law, clarification and certain directions were still required, since fatwa “gets strength from the religion and it causes serious psychological impact on the person intending not to abide by that”, and has “potential of causing immense devastation”.

The verdict is likely to trigger a debate on Muslim personal law and the necessity of having a Uniform Civil Code, and have a direct bearing on the operation of khap panchayats and similar institutions that issue contentious diktats.

On the legal validity of fatwa, the bench said: continued…

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