Supreme Court of India(SCI) says Sharia courts are Not legal Monday July 07,2014

The Supreme Court of India(SCI) on Monday July 07,2014 ruled that Sharia courts run by clerics have no legal sanctity and that their fatwas are not binding on anyone.

The top court said Islamic judges, who interpret religious law, can only rule when individuals submit voluntarily to them and their decisions, or fatwas, are not legally enforceable.

A bench of Justices C.K. Prasad and Pinaki Chandra Ghose restrained forums like Dar-ul Qaza, Dar-ul-Iftaa and Dar-ul-Uloom Deoband from giving verdicts or issuing fatwas against a person who is not before it on the basis of complaints by "strangers"

Challenging the validity of Sharia courts

The Supreme Court of India ruling on Monday July 07,2014 came on a petition filed in 2005 by Delhi-based advocate Vishwa Lochan Madan challenging the validity of the "parallel courts" run by institutions such as the Dar-ul Qaza, Darul- Iftaa and Dar-ul-Uloom Deoband, which issue fatwas.

He cited the case of a woman Imrana who was asked by Dar-ul-Uloom, Deoband, to leave her husband and children and live with her father-in-law who had raped her.

Madan argued that Sharia courts illegally interfere with the religious and social freedom of Muslim citizens and that fundamental right of Muslims cannot be controlled and curtailed by fatwas issued by qazis and muftis appointed by Muslim organisations.

Madan argued that fatwas have the support of All India Muslim Personal Law Board and it is striving for the establishment of parallel Muslim judicial system in India.

According to the Madan, adjudication of disputes is essentially the function of a sovereign State, which can never be abdicated or parted with.

Rights

"No Dar-ul-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. No religion including Islam punishes the innocent," the bench said in its 20-page judgment.

"Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force. 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 cannot be used to punish innocent."

The Supreme Court's ruling came in response to a petition filed in 2005 by Delhi-based advocate Vishwa Lochan Madan, who challenged parallel courts run by institutions like Darul Qaza, Darul-Iftaa and Dar-ul-Uloom Deoband that issued fatwas.

He cited the case of a woman named Imrana who was asked by Dar-Ul-Uloom Deoband to leave her husband and children and live with her father-in-law after he had raped her.

Fatwas

The SCI, however, refused to declare fatwas as illegal, saying they were part of an informal justice delivery system for providing amicable settlements between parties, and it is for the persons concerned to accept, ignore or reject it.

It said there is nothing wrong in issuing fatwas so long as they do not infringe on rights of individuals guaranteed under the law.

"We observe that no Dar-ul-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," the bench said.

"In any event, the decision or the fatwa issued by whatever body being not emanating from any judicial system recognised by law, it is not binding on anyone including the person who had asked for it. Further, such an adjudication or fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive method. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law," the apex court said.

The apex court said it is the fundamentals of any legal judicial system that power to adjudicate must flow from a validly made law, and a fatwa has no place in independent India under the constitutional scheme.

"In our opinion, the decisions of Dar-ul-Qaza or the fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law.

Powers

"A Qazi or Mufti has no authority or powers to impose his opinion and enforce his fatwa on any one by any coercive method. In fact, whatever may be the status of fatwa during Mughal or British Rule, it has no place in independent India under our constitutional scheme," the bench said.

Muslims divided in their reactions

The Supreme Court of India's ruling on Monday July 07,2014 that Sharia courts have no legal sanction evoked mixed reactions among Muslim leaders and experts, with some saying the order had created more confusion and others welcoming the judgment for demolishing myths about Islamic jurisprudence.

Kamal Faruqui, a founder member of the All India Muslim Personal Law Board (AIMPLB), felt the order had created confusion.

"While on the one hand, it is widely known that Darul Qazas and Darul Iftaas are religious institutions, Articles 25 and 26 of the Constitution give the people full freedom to practice and manage the affairs of their religion," he said.

"Those who want can follow the rulings of Darul Qazas and Darul Iftaas. Those who don't want to, need not do so. So this order is being unnecessarily hyped. The court has said nothing should be done to affect fundamental rights, but the people also have the right to freely profess their religion," Faruqui told Mail Today.

However, former minister Arif Mohammed Khan said there was nothing in the apex court's order that went "against the facts". Sections of the clergy had become a "nuisance" and were interfering in the rights of the people, he contended.

"This is nothing but sheer exploitation," Khan said.

"Persons with no authority were issuing fatwas and there is a need to prosecute such elements," he said.

"The political establishment has been patronising and using these religious elements since 1986 for personal and commercial gains," he said.

In Lucknow, Muslim leaders welcomed the SC decision but said they were of the view Darul Qazas and Darul Iftaas were working within the ambit of the Constitution.

"The court's order has said religious laws cannot be superimposed on someone. We are happy that the court has made the facts clear and demolished myths related to Shariah," said Sunni cleric Sajid Rashid.

Mufti Azam Mufti Bashiruddin, patron of the Sharia Supreme Court of Jammu and Kashmir, said his court was much older than the Supreme Court and the latter has no jurisdiction over it.

"Muslims have always followed Sharia even before the existence of the Indian Constitution. We are not bound by any verdict of the Supreme Court," he said.