Explained: Quran case in Supreme Court, and the powers of judicial review

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Parties to petition

Rizvi had named three secretaries of the Centre as respondents. He also named 56 private persons such as Chancellor of Aligarh Muslim University, who is the current Syedna of Bohras, Chancellor of Aliah University in Kolkata, principals of some colleges such as Islamia English Medium Higher Secondary in Kerala, leaders of political parties such as Asaduddin Owaisi etc. The Muslim Personal Law Board comes at number 57. It is not clear why Vice-Chancellors of Aligarh Muslim University, Jamia Millia Islamia (or its Chancellor) and Maulana Azad University were not made respondents.

In purely legal terms, the writ jurisdiction lies against the “state’” and all these persons named as respondents are certainly not ‘state’ within the meaning of Article 12 of the Constitution. Ideally he should have made Muslim God, Allah, as respondent number one as Muslims believe him to be the sole author of the Quran. Under Indian law, idols are juristic persons and recently Ram Lalla won the historic Babri Masjid case.

Power of judicial review

Under Indian law, only a “law” can be challenged as unconstitutional. Article 13(3) defines law, which includes any ordinance, order, by-law, rule, regulations, notification, custom or usage having in the territory the force of law. “Laws in force” on the commencement of the Constitution include laws enacted by a legislature or other competent authority. This definition certain does not cover any religious scripture including the Quran. Similarly, neither the Vedas nor the Gita, nor the Bible, nor the Guru Granth Sahib can be said to be “law” under Article 13 and thus challenged in a court of law. To term the Quran or other religious scriptures as custom or usage, as this petition claims, is absurd. Anyone with common sense knows customs and usage are repeated practices of human beings. Words of divine characters can never be considered as customs. The divine books can be sources of law but not law in themselves. Thus Quran in itself is not “law” for the purposes of Article 13. It is the paramount source of Islamic law and Muslim jurists extract laws from it through interpretation and also taking into account other sources of law such as Hadees (Prophet’s sayings), Ijma (juristic consensus), Qiyas (analogical deductions), Urf ( customs), Istihsan (juristic preference) and Istisilah (public interest).

As a matter of fact, the Quran itself abrogated several shameful customs of Arabs such as female infanticide, and therefore the Quran can never be called custom. If Quran is not law, it is not subject to judicial review. No court can sit in judgment on any sacred book.

Wasim Rizvi, former chief of the Shia Waqf Board, outside Supreme Court. (Express Photo: Tashi Tobgyal, File)

Terrorism already a crime

The petition claims the Quran promotes terrorism and therefore these 26 verses must be removed. Assuming for the sake of argument that someone like the petitioner believes that the Quran commands him to indulge in terrorism, can such a belief be protected under freedom of religion? Certainly not, as freedom of religion under Article 25 is subject to public order, health, morality and other fundamental rights. No one can take away anybody’s life as it would be contrary to Article 21, which guarantees right to life and personal liberty to everyone. But Muslims are certainly entitled to believe that the Quran is the “infallible word of God”. No court has the power to examine the veracity of this belief.

While killing of a human being is punishable under Section 302 of the IPC, 1860, UAPA was passed in 1967 and amended in 2008 in compliance with the UN resolutions to combat terrorism. We also had laws like TADA, 1985 and POTA, 2002. UAPA was made far more stringent in 2019. Thus there are a number of laws that already prohibit and severely punish terror activities. No terrorist can defend himself by relying on his religious texts as the law of the land, not the Quran, will apply in such cases. There are religious practices which the laws prohibit, such as sati under the Sati (Prevention) Act, 1987 or untouchability under Article 17 of the Constitution and the SC & ST Atrocities Act, 1988. It is true that despite such laws, untouchability is still practised in hundreds of Indian villages.

PILs & petitioners

PILs or pro bono public litigations became popular post-Emergency when the Supreme Court was suffering from a crisis of legitimacy due to its pro-government decisions. Through PILs, the court started winning the trust of the people. Within a decade or two, abuse of PILs became rampant. The court soon realised it and tried to contain the misuse. In Narmada Bachao Andolan (2000), Justice B N Kirpal said public interest litigation should not be allowed to degenerate to become “publicity interest litigation” or “private inquisitiveness litigation”.

Rizvi’s petition is clearly in the teeth of these guidelines, and is nothing more than a publicity interest litigation.

To restrict use of PILs, the first question courts ask today is about the credentials and motives of the petitioner. In Ashok Kumar (2003), Justice Arijit Pasayat held that the court has to be satisfied about the credentials of the petitioner, his information must not be vague, and the information should show gravity and seriousness. No PIL petitioner can be allowed to indulge in wild allegations about the character of others. Rizvi’s petition has made 14 crore Indian Muslims potential terrorists.

To look at Rizvi’s credentials: He has never stood up for Muslim causes, and has been changing political loyalties. Based on the UP government’s recommendation, the CBI filed two FIRs against him in November 2020 for the alleged misappropriation of Waqf properties (he is a former chairman of Shia Waqf Board). Youth Congress leader Sharad Shukla has filed a case against him for making sexist remarks against Priyanka Gandhi. Although Rizvi’s petition mentions the FIRs against him, it is silent about the CBI’s move.

Controversial verses

While the petitioner claims he had done extensive research on the Quran, he has not annexed any book or article published by him on the Quran. The petition wrongly mentions “chapter” and “verses” although there is a difference between the two. Even the translation of the Quran he relies on — The Clear Quran by the controversial Egyptian-Canadian imam Dr Mustafa Khattab — is not considered the authoritative translation.

The petitioner seems to have no clarity about the fundamental distinction under International law between the laws of war and laws of peace. Hugo Grotius (1583-1645), known as the father of international law, titled his book De jure belli ac pacis (The Rights of War and Peace). Until 1945, war was not prohibited for any nation. Article 2, Para 4 of the UN Charter now prohibits use of force. But even today under Chapter VII, a nation may resort to war in exercise of its right to self-defence.

The verses quoted in the petition are not only about war but refer to a particular situation of persecuted Muslims who had to migrate to Medina and were expecting an attack by the Meccans within the premises of a sacred mosque in Mecca during Haj. Even in such a situation, Muslims were permitted to fight only those who fight them (2:190). As a result of this verse, no violence indeed took place and not a single person was killed when Muslims went for pilgrimage in the year 8 AH. Even the following year, when Mecca was finally conquered, only 3 Muslims and 17 Meccans were killed. Moreover, the Prophet granted general amnesty to everyone.

The Quran was revealed over a period of 23 years depending upon the situation. The petitioner has overlooked the text, the context and usage of the revelations, and ignored the basic intrinsic moral and spiritual values that Quran promotes. The petitioner has cited some verses asking Muslims not to trust and befriend the enemies of God and the Prophet and to kill them wherever they are found. For instance, Covid-19 restrictions are peculiar to the current context and would come to an end when the pandemic ends.

The Quran is not a systematic book but an extended homily, and its verses must be understood in the proper situational context rather than general instructions for all times and in all situations. Its core is respect for human life, brotherhood, tolerance and plurality. At a number of places, the Quran commands humanity as a whole not to fight with one another since only God knows the whole truth. “If it had been thy Lord’s will, they would all have believed — all who are on earth! Wilt thou then compel mankind, against their will, to believe!” (10:99). Arabic words, like words of other languages, have multiple meanings in different contexts and also overlapping shades of meaning in similar contexts. No single word in any language has an inherent atomic meaning.

At times, the petition questions interpretation rather than verses, but at other times he questions verses themselves. He has even alleged that the entire Quran is not divine and some of these verses were added by the first three Caliphs. The problem with this wild allegation is that such a claim was never made even by Ali or Hussain for whom Shia Muslims have the highest reverence. No Shia cleric had ever questioned the divinity of the Quran.

Earlier petition on Quran

Chandmal Chopra had filed a petition for a ban on the Quran in Calcutta High Court in March 1985 as it allegedly incites violence and promotes enmity among different sections. The petition was disallowed by the High Court on May 17, 1985. Justice B C Basak, relying on the Supreme Court judgment in Veerabadran Chettiar (1958), held that the Quran was an object held sacred by Muslims within the meaning of Section 295 of IPC and as such fell beyond the purview of offence of blasphemy under Section 295A. The court also noted that verses were quoted out of context and did not reflect any malicious or deliberate intention to outrage the feelings of non-Muslims. The court went on to observe that banning the Quran would violate Article 25 and the Preamble of the Constitution. It categorically held that it cannot sit in judgment on holy books like Quran, Bible, Gita and Guru Granth Sahib. The court concluded that public tranquillity had not been disturbed at any material time by reason of existence of the Quran and there was no reason to apprehend that there was likelihood that there would be such a disturbance in future. The court said that in fact the petitioner, by filing this petition, has promoted disharmony and feelings of enmity between different communities and this is blasphemy within the meaning of Section 295A.

On November 24, 1985 , a Divisional Bench of Justices D K Sen and S K Sen upheld the High Court decision and categorically held that “we hold that courts cannot sit in judgment over the Koran or the contents thereof in any legal proceedings. Such adjudication of the religion itself is not permissible”. These judgments, though of mere persuasive value for the apex court will certainly be considered by the Supreme Court in the disposal of Rizvi’s petition.