On July 7, the Supreme Court of India delivered a ruling which is more confusing than clear. It said that fatwas the Muslim religious leaders issue have no legal sanctity, but allowed the practice to continue because it is not illegal.
It pointed out that Dar-ul-Qaza or the so-called Shariat courts have no legislative sanction, but held that Shariat courts are not a parallel judicial system. The Supreme Court stated that Shariat courts were “bereft of any legal pedigree” but virtually accepted a plea that the “object of such a court may be laudable”. What are we to make of the contradictionsIJ legal pundits will argue that there is no contradiction since the apex court has made the legal position clear on the twin issues. The simple question is: If an ‘informal' court or a diktat has no legal sanction, why should it even be allowedIJ
It has never been the case that fatwas or the Shariat courts have a legal sanction. Even the Muslim community has not claimed that. So, the apex court merely reiterated what already exists. In doing so, it dismissed a petition that sought to disband Shariat courts. It also set aside the petitioner's plea that the apex court direct the All India Muslim Personal law Board and other Muslim organisations to not appoint or train clerics for rendering judicial services. In other words, the status quo will continue. Muftis and their ilk will continue to psychologically torment members of the community with their fatwas and the Shariat courts will continue to render often dubious services. Going by the Supreme Court's sentiment, since all of these are of a non-binding nature, they have the right to exist even if they shock not just the Muslim community but the rest of the country as well with their often outrageous positions that militate against the Constitution and basic human rights.
The Bench of Justices Chandramauli Kumar Prasad and Pinaki Chandra Ghose had a wonderful opportunity to take a firm stand when petitioner Vishwa lochan Madan approached it for relief. But it chose to be ambivalent. This is in contrast to the unambiguous and welcome stand the apex court had taken on the issue of Khap panchayats. In May 2011, a two-member Bench of Justices Markandey Katju and Gyan Sudha Mishra had called Khap panchayats “illegal”, “kangaroo courts”, and “unconstitutional”. The Bench then went a step further and announced, “Atrocities with respect to personal lives of people, committed by brutal, feudal-minded persons deserve harsh punishment.”
The diktats of Shariat courts, like those of the Khaps, are also non-binding in nature and have no legal sanction. Aggrieved persons can approach the regular courts. like the clerics say in defence of Shariat courts, Khap panchayats too claim that their directives are meant to amicably settle issues that arise out of contentious or disputed relationships. Both are in the wrong, even if one emanates from religion and the other does not. The goose and the gander cannot be dealt with separately.
It is clear from the July 7 ruling that the learned judges swung back and forth while shaping their final opinion. On the one hand, they clarified that “…whatever may be the status of fatwa during Moghul or British rule, it has no place in independent India under our constitutional scheme.” On the other, they added that this would not mean the fatwas are illegal. In the process, the judges effectively sought to draw a distinction between the ‘good fatwa' and the ‘bad fatwa' and seemed to go along with the All India Muslim law Board's stand that the fatwa (as well as the Shariat courts) is an informal justice delivery system with an objective of bringing about amicable settlement between the parties. In sum, although they are not in the constitutional scheme of things, fatwas and Shariat courts are not illegal; only they have no legal sanctity!
Giving further endorsement to fatwas and adding to the jumble, the judges said, “In our opinion, 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.” But what if it does and the affected party does not take recourse to the lawIJ This is common because few members of the community have the courage to challenge an influential cleric. The fatwa-giver often escapes punishment.
The two-judge Bench then attempted to strike a balance by saying that fatwas could not be issued on people who haven’t approached the clerics for advice (religious or otherwise), because a fatwa “has the potential of causing immense devastation”. Even this word of caution is not a directive but a mere “advice” — if the clerics chose to ignore it, the courts can do little unless the fatwas impinge upon a person's basic rights and that person (or someone else) brings the matter to the court's notice. The point is: Why is there need to resort to such convolutionsIJ
The problem is that the Union of India has meekly gone along with the view that fatwas are “advisory” in nature, that the Dar-ul-Qaza does not administer criminal justice and that the Shariat courts function as an arbiter, mediator, negotiator or conciliator in matters pertaining to family matters or any other dispute of civil nature between the Muslims. This stand has strengthened the argument in favour of continuance of a system which, at the very least, has no legal sanction. There already exist legal mechanisms for the redressal of family issues and disputes of civil nature. Where is the need for Muslims to approach the Dar-ul-Qaza with their grievancesIJ That many of them do so is because of peer pressure and not due to their trust in the alternative system. They are generally in no position to contest that pressure.
The soft stand of the state and the courts has resulted in many untold atrocities on victims of fatwas or Shariat courts. Imrana's ordeal is a case in point. Twenty-year old Imrana was allegedly raped by her father-in-law eight years ago in Uttar Pradesh. Clerics of the prestigious Dar-ul-Uloom — an institution that commands considerable loyalty among the Muslim community in that State — issued a fatwa that after the rape, she ceased to be her husband's wife. The fatwa, which the judges quoted in their ruling, refers to the Quran: “Marry not the woman whom your father copulated”. The fatwa dissolved the marriage and prohibited husband and wife from living together.
There are many more of these atrocious diktats, including one where a woman was asked to accept her rapist father-in-law as husband; and another where a rapist father-in-law was let off because neither had there been a ‘witness’ to the incident nor had the husband filed a complaint against his father. Worse, the victim was categorically told not to file a police complaint. These are the sort of “advisories” Muslims clerics and their organisations issue, and yet the apex court refuses to crack down on them.