ہندوستان کی سپریم کورٹ نے شریعت لا او فتوي کو غیر قانونی قرار دیدیا۔۔۔۔ Fatwas have no legal standing: Supreme Court Dhananjay Mahapatra, TNN | Jul 8, 2014, 12.41AM ISTThe court said it would be illegal to impose these religion-based opinions on personal issues on citizens in violation of their fundamental rights.NEW DELHI: The Supreme Court on Monday ruled that fatwas issued by shariat courts or muftis had no legal sanctity, asserting that the defiance of fatwas will have no civil or criminal consequences. The court said it would be illegal to impose these religion-based opinions on personal issues on citizens in violation of their fundamental rights. Whatever may be the status of fatwa during Mughal or British rule, it has no place in independent India under our constitutional scheme, a bench of Justices Chandramauli K Prasad and Pinaki C Ghose said. Any person trying to enforce a fatwa by any method shall be illegal and has to be dealt with in accordance with law, it added. There have been bizarre fatwas covering almost the entire spectrum of social life of Muslims — from banning a popular all-girls Kashmiri band leading to its disbanding, to asking Muzaffarnagars Imrana to treat her husband as her son after she was raped by her father-in-law. In fact, it was the mushrooming of fatwas, ranging from dissolution of marriage to dress code for women, which led advocate Vishwa Lochan Madan to file a PIL questioning jurisdiction of shariat courts, Dar-ul-Qaza (personal law courts) and Deoband muftis in dictating social behaviour of citizens and, in the process, virtually setting up a parallel judicial system on issues relating to Muslim personal law. A fatwa 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. 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, said Justice Prasad, who authored the judgment. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived, the bench said. The All India Muslim Personal Law Board (AIMPLB) had told the apex court, Establishment of a network of judicial system throughout the country to help Muslims get their disputes settled by qazis may not have police powers but 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. This will bring Muslims to Muslim courts. They will get justice. But the bench was not amused. It said, The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land. Though the court said existence of Dar-ul-Qaza and issuance of fatwas were not per se illegal, it clarified that it is not a decree, not binding on the court or the state or the individual. It is not sanctioned under our constitutional scheme. It discussed the adverse impact of fatwas on people for whom religion was a matter of unflinching faith in the almighty. As fatwas get strength from the religion, it causes serious psychological impact on the person intending not to abide by that, the bench said. The court cited the stand of Deoband Dar-ul-Ulooms stand to emphasize the deep psychological impact of fatwas. The Deoband Dar-ul-Uloom had said, The persons who are god-fearing and believe that they are answerable to the almighty and have to face the consequence of their doings/deeds, such are the persons who submit to fatwa. In this context, the court recounted the harrowing tale of Imrana of Muzaffarnagar, UP. 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, the victim has been punished. A country governed by law cannot fathom it. In our opinion, one may not object to issuance of fatwa on a religious issue or any other issue so long as it does not infringe upon the rights of individuals guaranteed under law, it said. The court said fatwas could cause immense devastation and advised Dar-ul-Qazas and muftis not to issue them unless asked for by the person involved or the person having direct interest in the matter. 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, it said. TOI illustration by Zahid. Madan had sought a direction to the Union government and states to take effective steps to disband and dissolve all Dar-ul-Qazas and Shariat courts and to ensure that they did not function to adjudicate any matrimonial dispute under Muslim personal law. He had also requested the SC to quash attempts to establish a parallel Muslim judicial system by ordering AIMPLB, Dar-ul-Uloom Deoband and other Dar-ul-Ulooms in the country not to train or appoint qazis, naib-qazis or muftis for rendering any judicial service of any kind. Neither Union of India nor AIMPLB denied that Dar-ul-Qazas had been set up and qazis and naib-qazis were trained, who issued fatwas. But they said these were mere alternative dispute settlement forums not in conflict with the existing judicial system. Dar-ul-Uloom Deoband admitted to issuing a fatwa in Imranas case as per Fiqah-e-Hanafi, which was based on Quran and Hadith but asserted that it had no agency or power to enforce its fatwas. It was at the discretion of the person concerned to obey the fatwa. The Supreme Court ruling on Sharia law is actually a fine expression of pluralism Contrary to numerous media reports, the recent judgment is in line with Indias understanding of secularism. Saurav Datta In 2005, Vishwa Lochan Madan filed a writ petition in the Supreme Court, contending that the functioning of what he termed pseudo-judicial institutions, such as Sharia courts, “threatens the sovereignty of India’s secular judicial system, and their functionaries’ flagrant and blatant violations of India’s laws are an affront to the Constitution”. Lochan was spurred to do this after Muslim clerics issued three fatwas that he felt were illegal and violated women’s rights. Among them was the case of Imrana, a woman in Uttar Pradesh who was raped by her father-in-law. When she lodged a first information report against him, the village council declared that she must treat her husband as her son. Subsequently, the Islamic seminary of Darul-Uloom of Deoband passed a fatwa supporting the declaration, and soon thereafter, the All India Muslim Personal Law Board followed suit. In the Supreme Court’s ruling on Lochan’s petition, delivered on Monday, it held that fatwas were legally non-enforceable, and unless an individual voluntarily asked for it, no fatwa could be issued. Moreover, any fatwa impinging upon a citizen’s fundamental rights would be illegal, and the person or cleric trying to enforce it would be dealt with in accordance with the law. No Rejection of Sharia Courts While rejecting Lochan’s strident demand for the outlawing of Sharia courts and other allied bodies, the courts said that all fatwas were not bad, that they posed no threat to either the Constitution or India’s legal system, and that it would be inappropriate to rule on matters of religion and theology. During the proceedings, the court reprimanded Lochan for – in their terms – overdramatising the situation. Lochan’s petition wanted the Sharia courts and the darul qaza, or place of adjudication, to be declared illegal and unconstitutional. But contrary to some media reports, the court did not rule on the legality of Sharia courts, nor did it outlaw the darul qaza or the All India Muslim Personal Law Board. In fact, the court was not stating anything new or laying down anything unprecedented in law. It was only putting things in perspective to clear the air and sound a stern warning. Understanding fatwas Fatwas, religious opinions issued by a Muslim cleric, are at the heart of the matter. They are neither religious diktats that are binding upon all Muslims, nor do they carry the force of law. Yet fatwas have hogged the limelight for all the wrong reasons: the ones that come to national attention, especially, tend to have a cleric giving vent to an outrageous, even ludicrous opinion. The court did not support Lochan’s plea to ban fatwas altogether. Rather, it set a fine balance. In holding that seminaries and clerics were free to issue fatwas with respect to matters that affected the community at large, the court was actually protecting Muslims’ rights as religious minorities. At the same time, by cautioning those who seek fatwas against individuals whom they do not know, and holding that such violators would not be spared by the law, the court was sending out a clear warning. The respondents to the case, the government of India, the state of Uttar Pradesh, Darul Uloom Deoband, a famous and historic Islamic school in UP, and the All India Muslim Personal Law Board, submitted that the separate adjudicatory mechanism that Muslims were entitled to was sanctioned by law, citing the Muslim Personal Law (Shariat) Application Act, 1937. They also said the mechanism was a key ingredient of the community’s fundamental right to freedom of religion, granted under Articles 25 and 26 of the Constitution. The Case for the Defence The respondents argued that darul qazas were not adjudicatory bodies staffed with obscurantist and misogynist bigots who sought to challenge India’s legal system. Rather, they were only bodies for alternative dispute resolution, where the poor could go to avail themselves of timely justice at nominal cost. Darul qazas deal only with civil disputes, particularly in the domain of matrimonial law. Contrary to the literal meaning of their name, they are not adjudicatory bodies. Their decisions are not judicial opinions and are therefore not legally binding upon the parties. Moreover, those not satisfied with these decisions have the right to – and often do – avail themselves of the right to approach the family courts in India’s legal framework. Not only did the Supreme Court accept these submissions, it also lauded the establishment of such bodies. Reasonable Pluralism The legal philosopher John Rawls has delineated the principle of reasonable pluralism in public political culture, arguing for a system that doesn’t steamroll diversity and in the process violate minorities’ rights in the name of achieving uniformity. At the same time, it doesn’t embrace those practices that end up interfering in others’ rights. In the current case, the Supreme Court took this approach instead of succumbing to tired tropes of prejudice and boilerplate denouncements. In 2008, Reverend Rowan Williams, then the Archbishop of Canterbury and the head of the Anglican Church, called for Sharia principles to be integrated into and recognised by Britain’s legal system. He was ridiculed and abused by the British press at the time, but his thoughtful pronouncement was in line with Rawls’ dictum: “If what we want socially is a pattern of relations in which a plurality of diverse and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty.” India’s Supreme Court seems to agree.
Posted on: Thu, 10 Jul 2014 10:01:41 +0000
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