New Delhi: India’s Supreme Court on Monday ruled that a Shariah court has no legal sanction and clerics have no authority to enforce fatwa on anyone using coercive means, although it underlined that the existence of Darul-Qaza (Muslim court) or issuing of fatwas is not illegal.
The ruling, Islamic scholars say, will maintain the status quo as Shariah never intended to implement a parallel judicial system.
The court’s ruling would appear to be largely clarificatory in nature, and reaffirms that fatwas, including several well-publicized controversial ones, have no legal sanction. However, by stopping short of terming them illegal, it allows the continued functioning of such parallel courts whose judgements are often enforced on the strength of social sanction.
“Darul-Qaza is neither created nor sanctioned by any law made by the competent legislature. The object of establishment of such a court may be laudable but… Is bereft of any legal pedigree and has no sanction in laws of the land. They are not part of the corpus juris of the state,” a two-judge bench headed by justice C.K. Prasad said on Monday.
The bench said: “No Darul-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.”
Shariah, which translates into “the way”, is the Islamic canonical law prescribing the religious and social duties of an individual based on the teachings of the Quran and the traditions of the Prophet Mohammad. Shariah distinguishes between a fatwa and a qaza. The first is a legal opinion based on Shariah, given by a mufti (cleric) when someone consults him on a personal matter, and the second is a judicial verdict. However, there is no effective implementation mechanism in case of both fatwa and qaza, which means anyone can choose to obey or not obey it.
“Shariah panchayat is an arbitrary committee with no standing in law. Muslims do not even go to Darul-Qaza because these bodies don’t have any enforcement power. Since its inception in 1994 to 2010, Delhi Darul-Qaza has settled only 341 cases. It just points to the fact that people hardly seek their help,” says Zafar ul Islam Khan, president of the All India Muslim Majlis-e Mushawarat, a group of Muslim organizations in India.
On 25 February, the Supreme Court had said a fatwa could not be forced upon people and the state had to protect persons who are harassed for not following such diktats. Stressing that it was a matter of choice for people to accept fatwas, the apex court had said the running of institutions such as Darul-Qaza and Darul-Iftaa was a religious issue and that the courts should interfere only when someone’s rights were violated by their decisions.
Disapproving fatwas issued by a Shariah court against a person who did not appear before it, the apex court said on Monday, “A fatwa is an opinion only an expert is expected to give. One may not object to issuance of fatwa on a religious issue or any other issue so long it does not infringe upon the rights of individuals guaranteed under law.”
Pointing that Shariah or any of the Muslim courts never intended at having a parallel judicial system, Islamic scholar Akhtarul Wasey said: “Shariat panchayat is an internal, informal arrangement of the community to help those who approach it to save their time, money, and the usual harassment that entails the judicial system. If both the parties agree with the decision, well and good. If not, they can move courts. No one said it is a parallel legal system. This is a system that can complement, supplement the existing judicial process while discharging a case.”
The court passed the verdict on an item of public interest litigation filed by advocate Vishwa Lochan Madan, questioning the constitutionality of Shariat courts, which he alleged ran as parallel courts in the country deciding on religious and social freedoms of Muslim citizens. Madan also argued that the fundamental rights of Muslims could not be controlled and curtailed through fatwas issued by qazis and muftis appointed by Muslim organizations.
However, he clarified that his petition not be seen as an attempt to introduce the Uniform Civil Code in the country.
The All India Muslim Personal Law Board had earlier submitted that a fatwa was not binding on people and it was just an opinion of a mufti who has no power and authority to implement it.
The counsel appearing for the board said if a fatwa was sought to be implemented against the wish of the person concerned, then he could approach the court of law against it.
Khalid Rasheed Farangi, a Muslim cleric, said that under the Constitution, Muslims have the right to work and act according to Muslim personal law. “One must also keep in mind that Shariat Application Act, 1937, has very clearly said that in those cases in which both parties are Muslims and the matter is related to nikaah (marriage), talaaq, zihar, lian, khula and mubaraat (forms of divorce), the decisions will be taken in the light of the Muslim personal law,” he said.