Imrana and the fatwa

Let us be clear that the real issue in Imrana’s case is not about the enactment of an Uniform Civil Code. That political controversy must not blur the basic issue which is flagrant violation of Imrana’s fundamental rights, namely to live with dignity, to gender equality and freedom from cruel, inhuman and degrading treatment. To any fair-minded person, to whatever religion he or she may belong or whatever belief or ideology he or she may hold, the fatwa is a travesty of elementary norms of fairness. Invocation of religious texts and their purported interpretation cannot justify such inhuman action. Freedom of religion guaranteed by Article 25 of the Constitution is not absolute. It is subject inter alia to “morality” and to other parts of the Constitution which include gender equality and the right of a woman to make choices about her personal life. What could be more immoral than to condemn and coerce a young woman whose physical integrity has been destroyed and who has undergone a traumatic experience.

Suppose a law were passed in our country on the lines of the fatwa — namely that a woman who is raped by her father-in-law cannot upon pain of sanction be permitted to live with her husband even though the couple are keen to continue the marriage. Such a law would be struck down within minutes as unconstitutional. Can it make any difference if this kind of law is characterised as the personal law of a religion? Personal laws are recognised by the Constitution as Salman Khurshid reminds us. Unfortunately, he forgets that it is those personal laws which are in conformity with the mandate of the Constitution. Personal laws do not enjoy any immunity from compliance with constitutional obligations guaranteeing fundamental rights. Besides one of the fundamental duties prescribed by the Constitution is “to renounce practices derogatory to the dignity of women” (Article 51-A (e)). The fatwa indeed is destructive of the woman’s dignity.

Take the case of Sati. This pernicious practice of burning or burying alive the widow along with the body of her deceased husband was justified by some on the ground that it formed an important part of Hindu religious traditions and was an ancient practice hallowed by time. Nonetheless, Parliament passed the Commission of Sati (Prevention Act) 1987 which prohibits and criminalises the practice of Sati and its glorification. The constitutionality of the Act was challenged and was rejected by the Supreme Court. The monstrosity of the fatwa lies in its total lack of compassion for the unfortunate victim. Instead it regards her, a woman, as a wrong-doer who needs to be punished. It is tragic that the hapless, shattered girl, a mother of five, succumbs and accepts the fatwa under psychological coercion.

The fatwa should not provide a pretext for the defamation of Islam. Nor should criticism of the fatwa be mischievously construed as an attack on that enlightened religion, any more than condemnation of Sati could be regarded as an attack on Hinduism. Religion as such has nothing to do with the crucial issue in Imrana’s case which is the horrendous violation of her basic human rights.

The bottom line is that in our secular democratic republic the Constitution is the supreme law of the land and must prevail. It cannot be overridden by fatwas which defile and deface the Constitution. The rejection of the fatwa by the All India Women Personal Law Board and some eminent Muslims is welcome. The CPM deserves to be congratulated for the clear cut stand adopted by it on this issue and its rejection of the fatwa. On the other hand, the deafening silence of Congress President Sonia Gandhi is intriguing, as is the guarded support to the fatwa by Chief Minister Mulayam Singh Yadav. Is it so difficult to consider an issue which is fraught with serious human rights concerns objectively on merits without being influenced by political or electoral considerations?

The writer is a former attorney general for India