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

The SC said such institutions are not backed by law of the land.

By: Express News Service Written by Utkarsh Anand | New Delhi |
Updated: July 8, 2014 8:05:02 am
Supreme Court says faith can’t be used as ‘dehumanising force’, but refuses to declare Shariat courts, fatwas illegal. (Source : IE archive)

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.

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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: “Whatever may be the status of fatwa during Mogul or British rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody.”

Fatwa on rights, status and obligation of individual Muslims would “not be permissible”, unless asked for by the individuals concerned, it said.

“Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and, therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force,” the court held.

Addressing arguments by the Centre, All India Muslim Personal Law Board, Dar-ul-Uloom Deoband and other Dar-ul-Ulooms in the country, the bench accepted the position that no order for banning Shariat courts was required since it was undisputed that fatwas and qazas were advisory in nature, and that no Muslim was legally bound to follow them.

The bench also said that the case cited by petitioner Madan was an “eye-opener”, since a Muslim girl had to desert her husband because a fatwa directed her to live with her father-in-law, who had allegedly raped her.

“Though neither the wife nor the husband had approached for any opinion, an opinion was sought for and given at the instance of a journalist, a total stranger. In this way, victim has been punished. A country governed by rule of law cannot fathom it,” the court said, and sought restraint from Shariat courts in issuing such orders in future.

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