Nothing prepared us for the pleasant constitutional surprise, an incredibly brief order by a two-judge bench of the Supreme Court that “the decisions of Dar-ul-Qaza or the fatwa” are neither “created nor sanctioned by any law made by the competent legislature”. The fatwa issued by Dar-ul-Qazas (a sharia court) or “for that matter anybody, is not adjudication of dispute by an authority under a judicial system sanctioned by law”. In our constitutional legal system, a “qazi or mufti has no authority” nor any legal powers to impose “his opinion and enforce his fatwa on anyone by any coercive method”.
However, any decision affecting 65 million Indian Muslim women must be read closely. First, the decision is not a judgment at all; it is merely an advisory. The court does not overtly declare the law; it merely dismisses the petition with an observation “that no Dar-ul-Qazas or for that matter, anybody or institution by any name, shall give verdict or issue fatwa touching upon the rights, status and obligation of an individual unless such an individual has asked for it”. Fatwas that do not do so are constitutionally valid. And a non-citizen may still fall under the sway of a fatwa.
The court’s observations deserve to be given great weight, but in so far as the sharia is a matter of faith and that faith is interpreted by its custodians, only rebelling women may take recourse to civil courts. And even they must bear the intolerable ambiguities of constitutional as well as pious Islamic interpretation of the Quran. For example, the 2005 “model nikahnama” issued by the Muslim Personal Law Board (MPLB) says, in its last clause, that the “Ulema would take the decision and whatever judgement he gives would be binding on us”. As sociologist Sabiha Hussain points out, this “clause apparently closes the option for women to approach the secular courts”.
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Second, the court does not make prior fatwas invalid. Victims may file for proceedings with the police or approach the courts. But whether a crime has been committed by the issuance of a fatwa remains a matter for the police and courts to decide, eventually.
Third, only the fatwas “touching upon the rights of an individual at the instance of rank strangers”, which “may cause irreparable damage” and so are “absolutely uncalled for”, would “be in violation of basic human rights” and “cannot be used to punish innocent”, as no “religion, including Islam, punishes the innocent”. Religion, moreover, cannot be “allowed to be merciless to the victim. Faith cannot be used as dehumanising force”. These great words do not, for example, help Muslim women forced to marry their fathers-in-law under some strained interpretation of the Quran. Women are dragged to so-called sharia courts not by “strangers” but by near relations. Is it any relief if the fatwa were asked for “by the person interested”?
Fourth, although a fatwa can be asked for on behalf of a person in “case of incapacity”, what constitutes that incapacity and who is best suited to represent physical or mental disability or impairment is a vexed question. Would the judicial injunction on the “stranger” seeking a fatwa deter pious Muslims from taking genuine care of the incapacitated? The question is not fully answered by the clarification that “any person interested in the welfare of such [a] person may be permitted to represent the cause of [the] concerned individual”.
Fifth, what does the very last judicial observation signify? It says that, in “any event, the decision or the fatwa issued by whatever body being not emanating from any judicial system recognised by law is not binding on anyone including the person who had asked for it”. Does the word “binding” refer to law or religion or both?
The MPLB had already argued for the “necessity of establishment of a network of judicial system throughout the country” through which “Muslims should be made aware that they should get their disputes decided by the qazis”. True, “this establishment may not have the police powers but [it] shall have the book of Allah in hand and sunnat of the Rasool and all decisions should be according to the Book and the Sunnat”. But according to the MPLB, “this will bring the Muslims to the Muslim Courts. They will get justice”. The judicial position that while fatwas may be enforced as religion, they cannot be coercively implemented by the religious community, does not address the problem of pious Muslims being asked to believe, often to the point of harm and even death, that the decisions of the Islamic tribunals are always “just”.
According to Dar-ul-Uloom, Deoband, which admitted issuing the fatwa in the Imrana case “as per Fiqah-e-Hanafi, which is based on Quran and Hadith” it is “not running [a] parallel judiciary”. It contended that it “has no agency or powers to enforce its fatwas” and it is up to “the discretion of the persons or the parties who obtain fatwas to abide by it or not”. It can, however, do nothing if “God fearing Muslims being answerable to the Almighty, obey the fatwas”. But such coercive implementation of community decisions on deeply religious matters is not new. Hindus succeeded in maintaining untouchability for nearly 5,000 years and some are doing so even today, despite it being constitutionally and legally outlawed. Even now, caste biradari panchayats deliver patently unconstitutional decisions violating the equal rights of women as persons and as citizens. This does not, however, justify the hurtful, and even wounding, Muslim apartheid against Islamic women, if only because several wrongs never make a right.
Overall, the court is discharging its duty under Article 44 of the Constitution to “endeavour” towards a uniform civil code. But nowhere does it say so, and wisely. Wisely because the code raises complex issues of the politics of cruelty, survival and identity, which the representative institutions find unfeasible to answer. The court rightly asserts that, in the meantime, the Constitution normatively forbids barbaric treatment of Islamic women citizens of India. Although the Hindu law lacks the institutional piety of fatwas, its viciousness towards women seems impliedly addressed.
The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi.