Court, misquote

The Supreme Court has not declared fatwas illegal. It has situated them within the law.

Written by Tahir Mahmood | Published:July 14, 2014 12:38 am
As long as there is  legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism  operating for it in any particular community and order its abolition. As long as there is legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism operating for it in any particular community and order its abolition. Source: CR Sasikumar

The Supreme Court has not declared fatwas illegal. It has situated them within the law.

A victory day for the Muslims, a day of deliverance for all others — these diametrically opposed perceptions of the apex court’s ruling on the fatwa and Dar-ul-Qaza traditions of Muslim society are being projected by the Urdu and English media respectively. Neither is warranted by the letter and spirit of the court’s absolutely innocuous judgment.

A few years ago, a Delhi lawyer had filed a writ petition in the Supreme Court seeking a ban on the fatwa system and shariat courts, alleging that these were tantamount to running a “parallel judiciary” in the country. A division bench has now pronounced its judgment, which has been reported in the print media under sensational captions and is being hotly debated on TV channels. All this hurly burly is based on sheer misinformation about the system challenged and reflects a grave misreading of the judgment.

The Arabic word “fatwa” means an exposition of religious law by a Muslim cleric or seminary in answer to a specific query. It is like a lawyer’s opinion, which the querist may or may not act upon. The fatwa-giver writes his opinion as per his own understanding of religion, right or wrong, and does not claim it to be authentic — fatwas always conclude with the words wallahu a’lam bi-sawab (god knows better with certainty). Muslim law neither obliges any person to seek a fatwa in any matter nor makes it incumbent upon her to follow it if obtained.

As regards shariat courts, known as Dar-ul-Qazas, these are in the nature of what is known in law as alternative dispute resolution (ADR) mechanisms and generally decide personal law discords of disputants who voluntarily approach them and agree to abide by their verdicts. In some cases, where one party to a family dispute (generally a wife) seeks relief from a Dar-ul-Qaza and the other party unscrupulously keeps absent just to harass the complainant, a decision may, in the interest of justice, be given ex parte. No Dar-ul-Qaza decision, whether given ex parte or after hearing the parties, constitutes what is known in law as res judicata so as to bar the jurisdiction of any state court to entertain and decide the dispute.

A Dar-ul-Qaza hierarchy was first established on a mass scale in Bihar in 1919 and has successfully been operating there for over nine decades. Dar-ul-Qaza decisions are often taken by the disputants to local civil courts, which treat them as arbitration awards and pass decrees accordingly. Justice C.K. Prasad, who wrote the Supreme Court judgment, served in Bihar for long years as advocate general and high court judge.

He must be fully conversant with the true nature of the so-called shariat courts and his decision reflects a proper understanding of the system. He had spoken his mind during the hearing of the case in February this year when he told the petitioner: “You are assuming all fatwas are irrational. Some fatwas may be wise and may be for [the] general good also. People in this country are wise enough. If two Muslims agree for mediation, who can stay it? It is a blend of arbitration and mediation.” His judgment is fully in accord with this thinking.

That the court has declared fatwas or Dar-ul-Qazas to be “illegal” is a fantasy; that it has endorsed these religious traditions with impunity a delusion. Obviously, as long as the freedom of speech and expression guaranteed by the Constitution is available to the citizens, the court cannot restrain a mufti from giving his opinion on a religious matter. And, as long as there is legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism operating for it in any particular community and order its abolition. The SC therefore has done nothing of the sort — the petitioner’s demand for that has been clearly rejected, and rightly so.

At the same time, the court has made it clear, again absolutely rightly, that neither a fatwa nor a Dar-ul-Qaza verdict can be forcibly implemented by anybody against the wishes of the person who obtained it. It has further observed that in a bilateral dispute, a third party’s request for a fatwa should not be entertained by the muftis. Unfortunately, both practices are rampant.

Unconcerned persons having no locus standi in a particular dispute seek and obtain a fatwa, and the neighbours of the parties in dispute or the local community organisations harass them for not acting upon it. Instead of speaking out against such clearly unlawful practices in a mild way, the SC, in my opinion, could have issued mandatory directions in this regard. Of course, it has said in so many words that a person whose legal rights are being violated can always approach a state court for relief.

Instead of rejoicing over the judgment, Muslims must duly take its real message and translate it into concrete action. Others must let the judgment remain what it is — there is nothing in it for them to “celebrate”. Muslims should also evolve ways and means to ensure that fatwas are issued only by real experts in religious jurisprudence.

The writer has been chair of the National Minorities Commission and member, Law Commission of India

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    Ahsan Khan
    Jul 14, 2014 at 10:19 am
    Thank you for explaining the verdict in such a lucid manner.Muslims must raise their voice against misuse of fatwas and any illegal attempt to enforce the fatwa on an unwilling party. The consution protects the rights of individuals and anyone being victimised for not following a fatwa or opinion of mufti is free to approach the courts to seek relief.Unfortunately there is enormous social pressure and sanction in rural areas which makes it difficult for people to defy the diktat of obscurantist misogynist clerics who may not have any deep religious knowledge but are ever willing to produce a fatwa and incite people to enforce them.
    Reply
    1. A
      Ashok Sridharan
      Jul 14, 2014 at 8:14 am
      Brilliant article. This is a detailed explanation that even a layperson can understand
      Reply
      1. G
        Gangu true
        Jul 14, 2014 at 3:47 am
        No body of either C, M, J, H, J, S or whatever is allowed to be judge or jury except for state judicial system under Indian law. There can be no country within a country, despite of Indian law being perpetually discriminatory towards majority holding reserved sections of vote banked potion. This position has been stated in SC judgement. How long this situation would remain acceptable to the disempowered minority?
        Reply
        1. N
          nirode mohanty
          Jul 14, 2014 at 3:50 pm
          The government should abolish this Commissioin, a waste of tax payer's money.Not just fatwa, all these radical seminaries should be banned, as in any civilized country.
          Reply
          1. C
            ccc
            Jul 14, 2014 at 3:44 am
            govt. should encourage more muslims to take up madrasa education and settle there disputes through sharia courts, don't meddle in the affairs of muslims, history has shown that it is not good for national unity and peace.
            Reply
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