Indian Supreme Court says fatwas have no legal sanction
The apex court said that neither Darul Qaza nor any mufti can issue fatwas and try to enforce against a person who has not approached him for religious opinion.
The order says that Shariat courts have no sanction of law and nobody can run a parallel court in India, especially if the fundamental rights of Indians, guaranteed by the constitution, are breached.
The Indian SC said religion or faith cannot be used to victimise innocents and that no law has given any recognition to fatwas.
The apex court cited the Imrana case and said fatwas can cause irreparable damage to the rights of an individual.
Imrana, a 28 year-old Muslim woman was sexually assaulted by her father-in-law in 2005 in Charthawal village in the Muzaffarnagar district of India and subsequently, Islamic clerics there called her marriage with her husband null and void as the Shariat regards sexual relations with both the father and son as incestuous, sparking outcry over treating a rape as adultery.
The SC said though religious opinion as fatwas have a laudable object, they cannot be enforced the moment they breach the fundamental rights of a person.
The Muslim Personal Law Board agreed with the ruling of the SC.
The verdict was given by the top court after a petition filed by Delhi-based advocate Vishwa Lochan Madan, challenged institutions like the Darul Qaza and Darul Iftaa.
A bench, headed by Justice CK Prasad, said that no religion, including Islam, allows punishing innocent persons and ordered that no 'Darul Qaza' should give verdicts that affects the rights of a person who is not before it.
The All India Personal Law Board had earlier submitted that a fatwa was not binding on people and it was just an opinion of a 'mufti' (cleric) and he has no power or authority to implement it.
The counsel, appearing for the board, had said if a fatwa was sought to be implemented against the wishes of the person concerned, then he could approach the court of law against it.
The petitioner had submitted that the fundamental rights of Muslims could not be controlled and curtailed through fatwas issued by 'qazis' and 'muftis' appointed by Muslim organisations.
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@Strategic Asset: Thank you for the Christian perspective of personal laws. In General: In the history of India rarely if at all a Ruler interfered with Personal Laws of any religion,caste, community. No Hindu, Buddhist, Mughal & British monarch enforced his Personal Laws on Subjects for the sake of Uniformity. The first abomination was committed by Nehru when under pressure from Ambedkar he agreed for Uniform Hindu laws to be enacted in 56, much against the wise counsel of Rajendra Prasad. An implicitly Secular State had no business interfering in Hindu Laws,Custom & Mores.(2) It is nobody's case that all must go back in time to their respective religion's dispute-resolution-system (DRS) or old laws. Not all have their laws anyway; Jains & Buddhists & Sikhs (own law only for marriage) have been traditionally using Hindu laws., Jews(Ben Isrealis) & Parsis have most aspects of life under their own laws. Only Muslims happen to have a well developed DRS since centuries. They have grown with it. Though Criminal & general Civil cases are not covered since 19th century the glossary of Indian court procedure is full of quaint Persian & Arabic words even today as remnants of pre-British judicial system. Thank you for the posts.
@Strategic Asset: It is difficult to understand your point, because you seem to have one until someone refutes you at which time you disown your original point.
I am flattered that you have made a study of my habits only to arrive at faulty conclusion but to stick to the subject: I was clear that Sharia is Muslim specific. I was clear that subject to limits being cleanly defined & strictly monitored Sharia courts are useful & I will hold that view. You made it appear as if I was mixing it with Lok Adalat. That was wrong. I understand no Hindu-Christian Clergy is involved in any dispute resolution system. Muslim Clergy is already all-India; it is not banned; there are strict limits imposed of course. I hold the view that Indian judicial system is unable to cope with burden of work. Therefore, SC/Law Ministry should work out modalities to make use of ALL kinds of native set-ups & centuries old Sharia is one such though meant only for Muslim disputes. You appear to disagree; that's all there is to it. There is nothing clever or dumb about speculating in a chatty way ( no offense can be meant to anybody's Faith, let alone of a screen-name) that the great law givers like Macaulay who framed Indian laws were Christians-be they Church of England, Presbyterian or Irish Catholic. Well, we differ. I can't say much about UCC. I don't even know how it's Draft looks. Everybody else who wants to get rid of Muslim laws seem to have seen it!
I will be grateful if you don’t read what I have not written.
@Rakib: It is difficult to understand your point, because you seem to have one until someone refutes you at which time you disown your original point. Your original point was this:
With crores of cases pending in courts where a civil dispute might take a life time to be resolved a Sharia Court & Panchayat has a useful function to perform (provided it’s limits are cleanly defined & strictly monitored) at least among a section of the populace.
My counterpoint was that this would be a dangerous trend as it would give more power to the clergy, have all-India jurisdiction and the consequences would be dire for the faithful unlike local Lok Adalats or Panchayats. I forgot to add that a shariah court would follow a different body of jurisprudence and not Indian Civil Law.
Also on re-reading your response to me, I see that you have cleverly tried to allude that the secular laws in India established during the British times may in fact be Christian. I am not British, so I have no idea what they were thinking. However, I am a strong proponent of a Uniform Civil Code for India.
@Rakib: To answer your many questions which appear to be in good faith, I have posted below. Bear in mind that I am not a lawyer.
No, there is no Christian jurisprudence similar to Sharia or Halakha (which is recognized for certain personal law only in Israel).
Succession for everyone except Muslims is governed by the archaic Indian Succession Act, 1925. Intestate succession for Christians is still governed by this act.
For Hindus, Jains, Buddhists and Sikhs, intestate succession is governed by the Hindu Succession Act, 1956.
Christian personal law in India applies only to marriage and divorce.
If you look at my post, I was not referring to personal laws in India. I was instead mentioning that at one point in history, humans did have the clergy arbitrating between aggrieved parties on all sorts of matters and it didn't end up too well. So why go back in time?
@Shilpa: You claim this was a case filed by a Muslim at the receiving end of a Fatwa. From what I can make out this was a Case, a PIL, filed by one Delhi-based advocate Vishwa Lochan Madan.Since when Muslims started having such a name? In a PIL the petitioner doesn't have to be a directly affected party. The Muslim family was not directly in the picture. The rapist was already in jail, the woman with her husband. The petitioner Vishwa made legitimate use of the original case to establish his reason for filing the PIL but the argument was not about the Rape-case but to ban institutions such as the Darul Qaza and Darul Iftaa aka Sharia Court.. SC did not ban any but reconfirmed the obvious limitations of such a religious Body....
@Strategic Asset: (For instance in my case, I would not want a bunch of priests arbitrating on my matter and telling me what God feels I should do.)
This is very interesting. Yours may be just a rhetorical statement but it has made me curious. Do Christians have a choice & Church runs personal law-Courts too? If so, it strengthens my case. Do they settle property & inheritance disputes? For instance if a Christian man dies intestate & if there is disputes among heirs which Christian laws apply? (I may be wrong but would it be that many of the so called Secular laws of India are actually Christian ones!?) Does Christianity have something similar to Sharia or Talmudic laws & their justice dispensing system? I am curious hence the question. Thanks.
@shah: well, I found your 'Muslim hating India pouncing on it....' comment interesting as this judgement was given in a case filed by a Muslim who was at the receiving end of a Fatwa...just fyi but one can expect all Muslims to respond with blind passion when they see or hear the word Musl.ims or Islam anywhere - India, Israel or Myanmar....one shouldn't expect them to bother to know the facts before they open their mouths and the mouths of their guns and stones and inflammable, fire-starting eqipment and knives n swords...etc. etc.
@TQS: "Ha! This is how India treats its minorities! I’m glad my ancestors migrated to the Pakistan."
Absolutely! Every secular Indian is also glad that your ancestors left because it's very clear that the are not designed to live in secular societies. So why prolong their unhappiness in a land which follows the secular path. By the way, are you still called as a "muhajir"? 70 odd years and still a muhajir.
@TQS: "Ha! This is how India treats its minorities! I’m glad my ancestors migrated to the Pakistan."
Absolutely! Every secular Indian is also glad that your ancestors left because it's very clear that the are not designed to live in secular societies. So why prolong their unhappiness Ina land which follows the secular path. By the way, are you still called as a "muhajir"? 70 odd years and still a muhajir.....
@Strategic Asset: I will be grateful if you don't read what I have not written. I was specific that Sharia Court is meant only for Muslims & I didn't club it with any other system. since I have rudimentary knowledge of Muslim practices. Lok Adalat/Arbitration Act were quoted ONLY as examples to show how legislature/judiciary can be imaginative enough to come up with creative solutions. IMO, there is a reason why SC hasn't banned Sharia courts. May be, SC knows it is incapable of delivering justice in time. It's happy with any Body that can reduce its work provided such a Body works within limits that can be imposed. Large swathe of the country does not even follow Indian laws or subject itself to Indian judiciary. Almost never heard is a North-Easterner or central Indian tribal fighting cases of his property,inheritance,adoption, divorce in SC. Time to make a thorough review of all kinds of justice delivering practices prevalent in India-religious, caste/khaap, tribal or village-and find out what can be retained, regularised, brought under discipline and integrated with main justice system. A holistic approach is needed provided nothing is against Constitution (duly amended one, of course). Nation has no choice but to come up with creative solutions or else it will be Mafia Courts all over.
@TQS: We are also glad that they did so but sad that more do not want to.
@Hamza:
"Indeed, only in these “dignified nations” a mob can destroy mosques without facing any consequences, victims of rape are not given any justice but when it comes to Muslims then you introduce these laws which only apply to them. What about introducing a law seeking more rights for the minorities, giving more rights to the victims of rape?"
The mob destroyed one defunct mosque built on the site of destroyed temple by invaders. How many temples have been destroyed in Pakistan? Guess: over 100 in the past few years.
How many Hindu girls have been raped and converted in Pakistan? What justice have they received?
What rights non-Muslims have in Pakistan where constitutionally they have been declared second-class citizen?
Indian constitution, on the other hand, gives equal rights to every citizen regardless of religion, caste etc. Therefore, there is no need for any new laws in this regard.
@Rakib: While Indian courts are notoriously slow and sometimes take more than a lifetime to pass a verdict especially in civil cases, let us not confuse Lok Adalats meant for arbitration at the local level with Shariah Courts.
The two are similar yet completely different. In Lok Adalats, the panchayat knows their ability to coerce a decision is limited. Some panchayats especially in rural areas of India may have more power than others since we do hear about some asinine decisions taken by a few khap panchayats from time to time. However the panchayats know their decision is non-binding and can be challenged in a local court. Their influence is limited to a few villages at most.
Nevertheless, arbitration is a necessary means to reduce the log jam of civil cases in the courts. However the Lok Adalats must be augmented by people who are appointed preferably by the local court and who have the necessary training on arbitration and Indian civil law.
This is in marked contrast to a shariah court where the one giving the decision purports to have divine authority and influences adherents of an entire religion across the country. For instance in my case, I would not want a bunch of priests arbitrating on my matter and telling me what God feels I should do. In case I don't agree, I may even be excommunicated. Bear in mind this is precisely one of the reasons that led to the separation of church and state across Europe.
@TQS We are also so happy your ancestors moved to Pakistan and wish more like them had followed their worthy example. We are deeply thankful to Mr Jinnah for creating Pakistan otherwise our India would have been ungovernable with a large, and rapidly growing, section of the population throwing spanner in our emancipation and growth at every turn. There are comments here talking of the great injustice of Babri. Nobody supports destruction of Babri here in India and steps have been taken across the political spectrum, including by BJP, that it does not recur at all. One wishes same could be said about Pakistan who have done the gravest injustice to the Christians of Pakistan who so categorically (and so foolishly) supported the creation of Pakistan and who fought so valiantly for Pakistan during the wars you thrust on India. You may seek to justify the destruction of Hindu temples citing the example of babri but how would you justify the desecration of hundreds of churches across your country? And the rape of countless Christian women whom you consider nothing more than chattel? If you were honest you would atleast look inside yourself and see how deeply you humiliate Christians who have the misfortune of living among you.
Off Tangent:- Sharia Court is just another alternative method of dispute resolution though meant only for Muslims. The word "court" is a misnomer since it can't enforce anything or punish anybody. It is a Societal mechanism of dispute resolution as per laws based on Scripture, Tradition, Consensus, Custom & Deduction..It's the Legislature that should have had the vision to come up with creative use of old institutions under Sharia or traditional Panchayats within the framework of Constitution. With crores of cases pending in courts where a civil dispute might take a life time to be resolved a Sharia Court & Panchayat has a useful function to perform (provided it's limits are cleanly defined & strictly monitored) at least among a section of the populace. India has had long tradition of Panchs & Mahajans. Words like Arbitration, Conciliation & Mediation are new but the concepts are ancient in India. Ancient methods used by "Panchayats" of Tribal people have been integrated in to formal legal system by creating "Lok Adalats" under The Legal Services Authority Act (1987). Also, Arbitration & Conciliation Act was enacted in 1996. Before throwing the baby away with the wash let there be some debate on how best to use a system in existence uninterruptedly since almost a millennium.
Allah be praised who has given Hindus of today more understanding about Islam than Muslim Mullahs !! Fatwa's are only good and applicable in religious civil matters and not criminal acts. And most importantly Fatwa's of divinly guided Imam e Waqt or Mujadids sent by Allah are binding to Muslims.
Judgement is good but it could have been better. I would have loved it if judgement had taken into consideration the social pressure the muslim woman have to obey Fatwas and sharia courts's decision. Indian courts refer to Muslim personal law which is based on sharia law for civil cases. What constitutes a muslim personal law is decided by muslim personal law board. That is the freedom of religion guaranteed under constitution. However for criminal cases there is no separate law for muslims and rightly so. In case of criminal cases (rape or molestation) no cleric or mufti or board should be allowed to give any decision and instead they should be fined or prosecuted for interference in criminal matter. Clerics or muftis of sharia courts should be made accountable if they failed to understand that they have no jurisdiction if matter is criminal in nature and should themselves refer victim to go to police or regular courts. ET moderator, please publish this in interest of upliftment of muslim woman in sub-continet
@Sudhanshu Swami: Absolutely right..... Even in Pakistan, the supreme of all courts is always a civilian one... doesn't it really mean the shariat courts in Pakistan have a secondary decree... and the shariat courts, which were introduced by a dictator back in 1979, are no more than symbolic now...
@Hamza mob can destroy mosques without facing any consequences. You used plural word of Mosque. Can you quote at least two incidences ! Even Babri 'Mosque' Was a deserted mosque. Nobody claimed till 1961. No namaz offered for decades. A Mosque which had entrance from Hindu gates and through Hindu area. and a Mosque, proven, built on occupied area. Please read history and check map of that area.
SC simply said that it is matter of belief. If you goto Mufti then you can follow his fatwa. If you got to Courts then you should follow the law. Going to courts itself means that, that person do not have belief in Sharia. It is that simple. I dont know how people can smell anti-Muslim sentiments here too !
@TQS and to all those who are glad that their ancestors migrated to Pakistan, I wish you all the best. Enjoy your Land of Peace.
With Regards Your Indian Friend...
@Hamza: Why dont you just shoot yourself!
@TQS: My ancestors migrated here as well but dude, what on earth are you talking about?
I am confused as to why as to why this judgement is wrong. It looks like a corrct decision on part of the Supreme Court. Here in Pakistan we need to take up this issue as well. We cannot punish women because of wrong done by men. Which religion wants a women to divorce his husband becAuse of someone else's mistake.
.........and that would be a correct decision for secular India.
@TQS:
remove your blinkers and read deeper. the Indians Muslims are progressive enough to AGREE FULLY with this and support the Indian Supreme Court.
No Taliban allowed in India.....
@shah:
This is a case of misreporting. The focus was never on Fatwas. The Indian Supreme Court simply ruled that Sharia law is not legally binding.
The motivating factor was abuse of women under Sharia - in matters of polygamous marriages, divorce, alimony payments,inheritance laws, and rape/sexual abuse crimes, all of which were highly unfavorable for women. For instance a married woman with 5 children who was raped by her father-in-law was forced to renounce her husband and marry her father-in-law instead. Now, the father-in-law would have to serve time in jail instead.
Great decision by the Supreme Court indeed!
The news report, which talks about the Indian Supreme Court's verdict on Sharia Muslim courts (these are, in strict legal terms, not courts but something similar to the informal judgments passed by - mostly - self-appointed administrators of justice such as religious clergy (many of whom do not even understand the tenets of law and the judicial system, and not sensitive enough - generally - to the victims of such "court cases"), does not mention the reaction of the Muslim community, particularly Muslim women who are relieved that they now have a legal basis to fall back on in cases of serious victimization. The ISC's verdict has been appreciated by many enlightened and educated Muslims who see the senselessness in having a separate legal system run on the basis of religious edicts or fatwas passed by clergymen who have zero knowledge of the intricacies of a modern judicial system. It is not surprising, therefore, that mullahs are the main protesters against the ISC verdict; women, particularly Muslim women, have applauded the ruling which will give them leeway to take up their case to a "real court" in the event of abuses by Shariah-enforcing clergy. This piece of news has also been applauded by Muslim women in other countries where female discrimination is rampant. Perhaps, Pakistan can learn from this, if it does not sound too patronizing? Pakistan's rape laws, that discriminate against the victimized women from the outset, need to be changed. If Pakistan wants to become a modern country with a modern outlook, it needs to ban Shariah courts which a big impediment to progress.
Sharia courts are for Pakistan and Afghanistan not for India. They should be declared illegal all across India.
Congrats to the Indian people, most of these fatwas are given by illiterate people and are against equal rights to women in general
@Hamza: Mr Hamza aka depressed Whatever you have mentioned , can you tell me any thing that doesn't happen in Paksitan worst than India. Whatever we have in india thats not hidden under religious cover. we are working on it and we will resolve it, btw What is the conviction rate in Pak for rape, killing Minorities ?
@TQS: It's not a decision against muslims, it's a decision against senseless people who seem to be running your religion. It's a great decision, and I am hoping a similar verdict comes up in Pakistan as well soon.
Bravo!
@NotShocked: Nice, sensible comment there. And, I don't think that's the court backyard.
Ha! This is how India treats its minorities! I'm glad my ancestors migrated to the Pakistan.
Oh, the backyard and not the front of court, why? Who put pictures of court garden & not court facade & pillars the entrance. I personally don't care what Indian courts decides for Muslims there. There are enough Muslims there to stand up for themselves if needed.
Awesome Verdict.. that's how dignified nations grow and take decisions. country cannot run on religion country is for their citizens irrespective of religion.