Thursday, Dec 18, 2014
The court’s observations deserve to be given great weight, only rebelling women may take recourse to civil courts. (Source: Reuters photo) The court’s observations deserve to be given great weight, but in so far as the sharia is a matter of faith, only rebelling women may take recourse to civil courts. (Source: Reuters photo)
Written by Upendra Baxi | Posted: July 22, 2014 12:00 am

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”.

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 continued…

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