Friday, 20 February 2015

Restitution of Conjugal Rights by Maha Ali

Marriage confers important rights and entails corresponding obligations both on the husband and wife some of these rights are capable of being altered by the agreement freely entered into by the parties. But mainly, the obligations arising out of marriage are laid down by the law. An important obligation is consortium which not only means living together, but also implies a ‘union of fortunes’. A fundamental principle of matrimonial law is that one spouse is entitled to the society and comfort of the other. Thus, where wife without lawful cause, refuses to live with her husband, the husband is entitled to sue for the restitution of conjugal rights and similarly, the wife has the right to demand the fulfillment by the husband of his marital duties. The restitution of conjugal rights is often regarded as a matrimonial remedy but at the same time, it has faced a lot of criticisms. In majority of the cases in the sub-continent, the question which arises is regarding its origin, its roots in religion and the it constitutionality.

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Marriage is considered more of a religious, than a social or legal contract, in most communities. For example, DF Mulla in his ‘Mohammedan Law’ explains that the object of marriage is procreation and legalization of children. Similarly, it is considered a ‘samskar’ or sacrament instead of a social-legal contract in the Hindu society. It was established in Gurdev Kaur v. Swaran Singh[1], that the action for restitution was borrowed from old Ecclesiastical courts in England, and was, in fact, originally not Hindu.[2] The concept of restitution of conjugal rights was transferred from the ecclesiastical courts to the Divorce Court by the Divorce Act of 1857. If one spouse left home, the other could ask the court for a writ for the restitution of conjugal rights. In a case where no excuse for their absence was presented, the court would order the spouse to return home. The penalty for non-compliance would be “attachment”, which meant that the guilty party would be imprisoned until they agreed to obey the court order.  Christian marriages treated the woman as part of the man. Canon law considered a man and his wife as one person, which meant that the case could only be dealt with by Ecclesiastical courts and not by civil courts. However, no such principle exists in Islamic or Hindu laws. [3] Under the ancient Hindu law, the most important duty of the wife was to honor and serve the husband, and it was the duty of the husband to provide residence and maintenance for his wife. The remedy of restitution was not mentioned in the Shastric texts. However, if one of them failed to perform their marital duties, the other spouse was entitled to enforce his or her rights in a court of law.[4] The English Ecclesiastical law of the restitution of conjugal rights was grafted into the existing Indian Penal Code in the nineteenth century with little modification, it subsequently became completely controlled and shaped by Indian interpretations of marital rights and obligations. [5]

The significant feature of the restitution of conjugal rights is that it is a remedy aimed at preserving the marriage and not dissolving it. However, as observed in R. v. Jackson[6] , a woman named Mrs. Jackson was confined by her husband, and hence the award was impotent and not a useful one. Lord Herchell described it in his judgment as ‘barbarous’.[7] Earlier marriages were formed on the fundamental principle that the wife was considered a property of her husband, which is why she was required to live with him willingly or unwillingly, in the home provided by her husband. In the case that the woman refused to comply or left her husband, she could be compelled to live with him. M. A. Qureshi in his book, 'Marriage and Matrimonial Remedies' explains this phenomenon by comparing the women in those marriages with cattle which could be brought back to their masters in the case that they ran away.

With the Hindu Marriage Act of 1955, this idea of the wife being unconditionally tied to the husband was completely altered.  According to Section 9 of the Act, both parties can avail restitution of conjugal rights. In Baburao v. Sushila[8], the Madhya Pradesh High Court stated that only when the petitioner deserves it should the restitution be allowed. However, it cannot be granted if there is no hope for the parties to cohabit happily. It further states that, “in marital matters it is the attitude of the mind and the feelings that count, and no decree of the court can force the parties to live together.” [9]

Despite the fact that all of the religions in India made references to marital duties and cohabitation, lawyers and judges continually pointed out during this period that importing the concept of restitution of conjugal rights was entirely inappropriate as it did not formally constitute part of any of the major religions in India. The most common practice, in cases of severe disagreements between couples, was that the wife would flee to her natal family. [10] In the mid-nineteenth century, the Restitution of Conjugal Rights (Act XV of 1877, Schedule 11, Article 34) was available to the husband claiming the society of his wife. Formerly, women could seek help of the extended family in cases of violence against them by the husbands, but Section 259 of the Civil Procedure Code (1882) stated that the extended family could not interfere, particularly if the person ‘harboring’ her was a distant relative- such as an uncle instead of a parent. [11]

Arguments were presented for and against the doctrine of the restitution of conjugal rights during the legislative debates on the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955. In Shakila Banu v. Gulam Mustafa[12], the High Court observed:

 “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”  

 Later, in T.Sareetha v. T. Venkata Subbaiah[13] , the Andhra Pradesh High Court held the section 9 of the Hindu Marriage Act to be violative of the Constitution. The court indicated that ''the consequences of such a decree are firstly to transfer the choice to have marital intercourse to the state from the concerned individual and secondly to surrender the choice of the individual to allow or not to allow one's body to be used as "a vehicle for another human being's". Court also stated that the section assailed on the touchstone of “minimum rationality... it promotes no legitimate public purpose based on any conception of the general good and hence, is arbitrary and void.”

In Islamic law, according to A.A.A. Fyzee in ‘Outlines of Muslim Law’[14], the Holy Qur'an gives the husbands the right to retain their wives with kindness or part with them with an equal consideration. However, if the husband has not paid the dower money, he cannot ask for the restitution of conjugal rights under Islamic law. It is further discussed in the Hedaya[15] that until the wife receives her dower from the husband, she may refuse her husband to a carnal connection. Ameer Ali in the 'Mohammedan Law' has referred to the Hedaya again, which provides that the husband has no power to stop his wife from traveling or leaving his house to visit her friends until he has paid the whole amount of dower, because he does not have the right to “secure fulfillment before rendering fulfillment himself.” This rule was used in Eidan v. Mazhar Hossain [16] where the Allahabad High Court stated that the wife could refuse to cohabit with her husband until he had paid the dower, in a suit by the husband to enforce his conjugal rights. Other such reasons due to which the court can refuse to grant order of the restitution of conjugal rights may be cruelty of husband or in-laws towards the wife, failure of husband to perform marital obligations, and second marriage of the husband. The Qur'an commands the husbands to keep their wives with kindness, or to part with them with an equal consideration.[17] The husband can divorce a wife who is unwilling to live with him, or marry another woman, leaving his first wife in peace.[18]

Owing to the Muslim husband being dominant in matrimonial matters, the Court leans in favour of the wife generally, and requires strict proof of all allegations necessary for matrimonial relief. The obligation of the wife to live with her husband is not absolute. The law recognizes circumstances which justify her refusal to live with him. For instance, if he has deserted her for a long time, or if he has directed her to leave his house, he cannot ask the assistance of the Court to compel her to live with him.[19] Irregularity of marriage is also a valid defense to a suit for the restitution of conjugal rights, as it is necessary for a marriage to be valid according to Muslim law before the Courts can grant a decree of restitution of conjugal rights. [20] In another judgment, it was discussed that Islam does not force the spouses a life devoid of harmony and happiness and the parties cannot live together as they should, it permits a separation.[21]

As understood, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy aimed at preserving the marriage, and not at disrupting it, as in the case of divorce or judicial separation. So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.




[1] Gurdev Kaur v. Swaran Singh, A.I.R. 1959, Punj. 164.
[2] M.A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 80
[3] M.L. Shanley, Feminism, Marriage and the Law in Victorian England, p. 177
[4] .A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 82
[5] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 289
[6] R. v. Jackson (1891) 1 Q. B. 671.
[7] A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 79
[8] Baburao v. Sushila A.I.R. 1960, M.P., 73
[9] As cited in A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 84
[10] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 287
[11] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 288
[12] AIR 1971 Bom. 166, ILR 1971 Bom. 714
[13] AIR 1983 AP 356
[14] Pg. 116
[15] C. Hamilton, The Hedaya or Guide, pg. 54
[16] Eidan v. Mazhar Hossain 1877 I.L.L. All., 483
[17] Surah 65, verse 3
[18] (1934) 59 Bom. 426
[19] Ameer Ali, Mohammedan Law. 6th Ed. Pg. 383
[20] PLD 1959 Lah. 1014
[21] PLD 1959 Lah. 566

Sunday, 1 February 2015

Authentic Discourse on Reform in Pakistan

It goes without saying that the judicial system of Pakistan is extremely deficient and is in dire need of fundamental and immediate reforms. However, so far, there is not a single comprehensive study which systematically analyses the root causes of the problems faced by the system of the administration of justice in Pakistan. This is despite the fact that many foreign funded projects were undertaken and a plethora of research work was produced to reform the Pakistani judicial system in the recent past.
Given the complexity and severity of the challenges faced by the legal and judicial apparatus in Pakistan, any piecemeal approach is predestined to fail. In this context, Dr. Osama Siddique’s study is both timely and to the point. The study employs a wide range of methodological techniques such as historical, empirical and sociological to analyse the judicial reform discourse in Pakistan. It also makes comparative references to the legal reform discourse in India.
The book is built around four inter-related themes: colonial context of the Pakistani legal system; problems faced by litigants in civil courts; crime perception; and critique of foreign funded legal reforms. It is divided into six substantial chapters and a final chapter titled ‘Toward a new approach’, which provides a conclusion along with recommendations. Each of the substantial chapters is packed with dense information based on qualitative research and quantitative data to the extent that each chapter is equivalent to a doctoral thesis in its own right.
The first chapter emphasises the need to link the judicial reform discourse in Pakistan with its colonial past because, according to the author, “in many significant ways, Pakistan’s colonial past and its post-colonial present are contiguous eras that seamlessly flow into each other in the historical continuum…” (p5). He then classifies the existing literature regarding “narratives of colonial displacement” of local legal traditions into three broad categories: desirable modernisation, inevitable modernisation, and radical displacement.
He highlights the complex and often contradictory process of colonialism by arguing “while violence and coercion may have at times played a role in pursuit of certain policy objectives, so did compromise, cooperation and acceptance.” (p57). This chapter provides the most comprehensive overview of colonial legal history.
Chapters 2 and 3 are based on empirical data collected from various parts of the Punjab between 2009 and 2011. At the outset the author observes the poor quality of judicial and legal statistics maintained by the state officials. He then goes on to fill this gap by conducting an extensive survey regarding civil and criminal litigation by looking into the background of litigants, lawyers and judges, the cost of litigation, causes of disputes and delays in adjudication, alternative modes of dispute resolution, perception of the prevalence of crime, nature of various crimes, and crime reporting.
The depth of insights and the incisive nature of the questions raised in these two surveys are admirable. For instance, the author goes on to ask follow-up questions regarding the nature of litigation and whether the respondents would choose litigation if confronted with future disputes and thus come back to the courts to seek remedies. Surprisingly, 48 per cent respondents said that they would come back to the court in case they have a dispute in future. However, when they were interviewed further, out of this number, 77 per cent said that they did not have any other option.
Regarding the criminal litigation survey, the author observes that there is a causal relationship between the failure of the system of administration of justice and violence in society, as in many cases, failure to resolve a civil case led to criminal litigation. It also forced litigants to search for alternative mechanisms for dispute resolutions which included not only a recourse to extended family, panchayat and influential landlords, but also local crime lords and even local police and bureaucracy. (p165)
Chapters 4 through 6 provide a critique of various judicial reform projects in Pakistan including the Asian Development Bank’s $ 350 million Access to Justice Programme — the largest externally funded judicial reform programme in the world todate.
It is observed that the reform discourse is ahistorical and decontextualised as it fails to take into account history, social realities, culture, political and economic realities and popular aspirations. This myopic approach is due to the monopoly of the ‘legal community’ who forms the ‘reform club’ in Pakistan, which includes judges, lawyers, policy-makers, and consultants. They focus primarily on formal law and legal institutions, and totally ignore the wider socio-economic, cultural and political environment in which the judicial institutions operate. This also exposes the weakness of the democratic system in Pakistan because politicians and legislators play a minimal role in the judicial reform discourse. As a logical consequence of this arrangement, the whole project of judicial-cum-legal reforms become bureaucratic and unaccountable. This also results in ignoring the alternative modes of dispute resolution, which could not only be efficient and cheaper, but also reduce the case-load of the judiciary.
Dr Siddique recommends a broader multidisciplinary approach which is able to “shift the focus of justice sector reform from a purely technocratic/legalistic perspective to a legal-sociological viewpoint”. (p434) This is because the causes of many problems faced by the ordinary litigants in society “lie far beyond the adjudicative and corrective capacity of the courts”. This requires “a deeper understanding of what causes societal dispute and resulting litigation”. The book concludes with the prescription, “… the ‘cultural hegemony of law’ will have to give way to a larger, more democratic, and richer consultation…”  (p436-7)High Resolution Image of Book Cover
This is a path-breaking study both in terms of its content and methodology. The author has made full use of his academic and professional background to boldly engage with the intricacies of justice sector reforms in Pakistan. His empirical analysis is informed through insights drawn from such diverse theoretical frameworks as law and development, comparative law, legal anthropology, sociology of law, Indian legal history, legal theory and legal realism.
The next line of our national inquiry should focus on the issue of the political economy of judicial reforms in Pakistan, which will expose the impediments at local, national and international levels, and our future research should further specifically explore the process of the culmination of academic research into policy-making. This book has succeeded in providing the groundwork for such further research.

http://tns.thenews.com.pk/book-review-authentic-discourse-on-reform/#.VM5M19KUcw9 

Monday, 21 July 2014

Taking Away My Rights! (Protection of Pakistan Act 2014) by Muhammad Wajid Munir

The recently promulgated Protection of Pakistan Act (PPA) has come under scathe criticism. Many legal analysts believe that it violates fundamental rights and some salutary principles of criminal jurisprudence. However, others argue that we are facing extraordinary situations which require extra-ordinary solutions because certain procedural and substantive laws in the country provide too much relaxation to criminals.

The critics of the PPA are of the view that law enforcement agencies have been given ubiquitous powers and ‘license to kill’ (shoot at sight) after giving a ‘sufficient warning’ (Section 3). One shudders to think who will standardize ‘sufficient warning’? There are chances that it can be used in a negative way. The prevailing practice is that law enforcement agencies have been given power to use force but in limited context, such as:

Ø  Cr.P.C:128:  Officer in charge of police station may proceed to disperse assembly by force and may require assistance of any male person, not being an officer of armed forces. Provided that firing shall not be resorted to except under specific directions of an officer of the police not below the rank of an Assistant Superintendent or Deputy Superintendent of Police.
Ø  Cr.P.C:130 (2): Police Officer shall use minimum force, and do as little injury to person and property.
Ø  Cr.P.C:46: According to this section Police Officer shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word of action.
Ø  Cr.P.C:50: Person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Consequently, section 3 of the PPA is double edged sword which might be used in a negative way and it also paves the way for notorious encounters. It was held in Muhammad Ifzal v. Home Secretary, Government of Punjab (1996 PLD Lah. 325)that dignity of man is granted by the constitution and no citizen can be subjected to torture by law enforcement agencies. Primary duty of the police is to detect crime and to bring the criminals before the court of law and not to punish them themselves.”

In Muhammad Yaqub v. State (1992 SCMR 1983) it was held that “public functionaries are to act in aid of enforcement of Article 9 of the constitution rather than to violate them. An encounter simpliciter will not entitle a police party to killing discriminately persons who are allegedly in the encounter”.

Similarly, according to section 3(2) (b) of the PPA law enforcement agencies may arrest without warrant even on the basis of suspicion! This is not only against the constitution but also against the respected UDHR to which Pakistan is a signatory. 

Ø  Article 4: Right of individual to be dealt with in accordance with law etc. Art. 4 (a) no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
Ø  Article 10: Safeguard as to arrest and detention.
Ø  Fair Trial Act, 2013: Section 8: Application for issue of warrant: Application for issuance of warrant shall be made by authorized officer to judge.
Ø  Fair Trial Act, 2013: Section 15: If judge is of the view that officer has mala fide intention; he may recommend departmental action against him.
Ø  UDHR: Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
Ø  UDHR: Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

It is worth noticing that Section 34 (1) (a) (c) of the PPA and Cl. 36 Rowlett Act, 1918 also deal with search and arrest without warrant. Rowlett Act was notorious due to clauses like this that’s why it spurred wide-spread protest in the sub-continent.

On top of all, the real howler is section 14 of the PPA. Under this section the accused will not be entitled to the benefit of doubt, which is a blatant violation of the cardinal and universally accepted notion of ‘burden of Proof’. It is a recognized principle of criminal law that onus to prove is on the prosecution. Better than ten guilty persons escape than that one innocent suffer (William Black Stone). Article 117 and 118 of “Qanun-e-Shahadat Order” clearly states that burden of proof is on the prosecution. Likewise, Article 11 (1) of UDHR states that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.

Another thorny point is under PPA, reports of investigation will also be admissible in evidence against the accused (section 7). The current practice in Pakistan is that the reports of investigation like police reports (Section 157, 168, 173 of Cr.P.C and Section 25 of Fair Trial Act, 2013), Experts opinion (Section 510 of Cr.P.C and Article 59 to 65) are not “admissible” in evidence. These reports are relevant but not admissible. As in Saeed Ahmad v. State (PLD 2003 SC 389) it was held that expert opinion normally, is not safe to treat.

Shockingly, some conducts (long march, strikes or to sit in etc) against government have been termed as offences against the state—“waging war against the state”. Indeed, it is a flagrant violation of Article 16 and 19 of constitution because they are not against the state but a government and its wrong policies.

Ø  Art. 16: Freedom of Assembly; Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.
Ø  Art. 19: Freedom of Speech; Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.

Lastly, Preventive detention for ninety days and minimum quantum of punishment for ten years also comes under scathing criticism. There is a huge debate regarding preventive detention and majority of criminal law experts believe that it is against human rights. Same is the case with minimum quantum of punishments, which will be now wobbling “ten years”. What about theory of reformation and rehabilitation!

It is worth mentioning that India also legislated some laws against terrorism but it was an abortive attempt owing to provisions like burden of proof and arrest without warrant. Such legislation included;


Ø  Terrorist and Disruptive areas Act (TADA), 1987
Ø  The Prevention of Terrorism Act (POTA), 2002
Ø  Terrorist and Disruptive Areas Rules, 1987
Ø  Maintenance of Internal Security Act (MISA), 1971 

All above mentioned laws were misused and later done away with. TADA lapsed but was re-enacted on 24 May 1987. It was amended in 1993 and again thereafter but was allowed to lapse on 23 May 1995. The Prevention of Terrorism Act (POTA) was enacted in 2002, only by a joint session of Parliament on 26 March 2002, but was repealed in 2004 and replaced by the Unlawful Activities (Prevention) Amendment Act, 2004.

In a nutshell, PPA smells more of Rowlett Act, 1918 which the British came up with to quell terrorism. There is no denying the fact that we are facing extraordinary situation, which require extra-ordinary solutions but it does not mean to take away fundamental rights of our citizens.

Because the PPA violates fundamental human rights, it can be declared ultra vires the constitution. In Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan (PLD 2010 S.C. 61) it was decided that “the Supreme Court is empowered to examine the legislative competence to declare a statute or a legal document ultra vires the Constitution, or the action of the State authorities void if it is in conflict with the provision of Constitution, in exercise of its power of judicial review”. Similarly in Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 870) it was held that “Judiciary had a duty to examine the constitutionality of any law if it was concluded that it had been promulgated in derogation of the Fundamental Rights as envisaged under Art. 8 of the Constitution, or where any provision of any law was found contrary to the Constitution”.

Instead of strict laws government should focus on education so as to weed out terrorism from its very roots. Meanwhile, reforms in police department are the need of the hour and a prerequisite for any meaningful legislative action against the menace of terrorism. The police department needs to be depoliticized and it should be given more autonomy in order to resist against corrupt politicians and powerful sections of the society.

Tuesday, 8 July 2014

How is the Co-existence of Sharia and Modern State Possible?

In its recent judgment Vishwa Lochan Madan vs Union Of India, the Indian Supreme Court rejected a petition requiring the abolition of informal Sharia tribunals in India, on the pretext that ‘adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with.’ The petitioner contended that such tribunals were functioning all over India as a parallel judicial system, administering justice amongst Muslims in accordance with the Canonical law of Islam, based on the teachings of the Qur’an and traditions of the Prophet. Specific references were made to various fatwas issued by some such tribunals, which violated women’s rights. Such fatwas included the cases of Muslim women who were raped by their fathers-in-law. The tribunals which dealt with their cases required them to wed the rapist after getting divorced from their husbands. This view was supposedly supported by the classical jurists of the Hanafi school.
While refusing to accept the petitions, the Supreme Court postulated a positivist account of law by asserting that ‘the power to adjudicate must flow from a validly made law.’ The Court noted that the Sharia tribunals do not exercise any function of adjudication and their opinion does not have any authority of enforceable law. Neither do these opinions have any legal or constitutional status whatsoever. Indeed, these fatwas are ‘expert’ opinions. They are not decrees, hence they are not binding on the courts, the State or the individual. Thus the issuing of fatwas is not illegal per se. This mode of administering justice was characterised as an ‘informal justice system’ which tries to bring an amicable settlement of disputes between the parties. The opinion of any Sharia tribunal is not binding and it solely depends upon the discretion of the individuals involved to either accept it or reject it.

However, as a balancing act, the court deemed it appropriate to put some control on vexatious issuance of fatwas, which violate the human rights of individuals,  specifically protected under the Indian Constitution:

Having regard to the fact that a Fatwa has the potential of causing immense devastation, we feel impelled to add a word of caution. We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue Fatwa concerning an individual, 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 cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.’
This is a remarkable judgment, which strikes a right balance between adherence to the principles of Sharia, on the one hand, and human rights within the legal framework of the modern state and international law, on the other. While the judges refused to grant the petition declaring all Sharia tribunals illegal, they nevertheless felt it appropriate to add a word of caution for such tribunals to adhere to: ‘However, we observe that no Dar-ul-Qazas or for that matter, any body 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.’ This effectively means a restricted regime for fatwas as a ‘valid’ fatwa after this judgment could only be issued if all the parties involved are agreed to get it. However, as most of the fatwas are issued with anonymous names of parties, this restriction will have only a limited effect.
In this judgment, the Indian Supreme Court has adopted a middle-of-the-road approach, going against a free regime for fatwas in Pakistan and a fatwa restricted regime of Bangladesh.
Full text of the judgment is available at http://www.indiankanoon.org/doc/22464727/

Wednesday, 26 March 2014

Need for Shariah Standard on Halal Consumer Products by Muhammad Akbar Khan

Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) has issued various Shariah standards regarding Islamic modes of finance for the proper regulation of Islamic Banks and financial institutions. This happened to be a very fruitful and successful effort in order to harmonise and uniform Islamic commercial law and almost all the Islamic banks and financial institutions around the world are following these standards today. However such efforts are greatly required in other fields as well especially in matters of halal (permissible) and haram (prohibited).

There is great need felt by Muslim consumers in every corner of the globe to know the exact parameters of halal and haram in consumer products especially in this age of advance technology. It is, therefore hoped that an adequate Shariah standard should be promulgated by AAOIFI or any other body of the Organization of Islamic Conference (OIC) to guide the relevant authorities and Muslim consumers in ascertaining halal and haram products for the benefit of Ummah as a whole. This will not only help to uniform Islamic law of halal and haram especially in modern age when many products are process mysteries and consumers know nothing about them. 

On the other hand, many Muslim and non-Muslim countries have established halal regulatory bodies and authorities but the basic concern of these bodies is to expand the business portfolio and maximum export of the products rather than protection and preservation of faith which is the basic concern of the notions of halal and haram in Islam. Indeed it is allowed to earn profit and export halal products but such gain should not be at the stake of faith of the Muslim consumers. Moreover, absence of a uniform Shariah standard on halal products makes them doubtful not only for the relevant authorities but also for the Muslim consumers and easily escapable for the perpetrators. 

While making Shariah Standard on halal products the important areas such as Islamic law regarding edibles, beverages, manufactured products such as medicines, cosmetics, packaging and labelling, metamorphosis, issue of alcohol, and intoxication etc should not be ignored. In this context whatever is prohibited by Shariah should thoroughly be reviewed in the light of interpretations of Muslim jurists. Liability for manufacturing haram products with halal logo should also be prescribed in the standard and strict compliance should be insured. The use of halal logo needs proper attention in this regard as most of the time a producer once issued a licence to sell halal products later on stops following the rituals but continues selling products with halal logo. This and other unfair practices should strictly be controlled by the relevant authority. To ascertain the legitimacy of a particular product under Shariah along with the religious scholars food technologists must also be taken on board and views of the common consumers should also be considered. Once such a Shariah Standard is promulgated all the Muslim countries and organisations of Muslims in non-Muslim countries should unanimously apply the standard and make it a part of their respective jurisdiction. 

This will help building confidence of the Muslim consumers regarding halal products and promotion and protection of faith of Muslim masses which is the primary objective of Shariah in halal and haram. This is not the task of any particular community to uphold the standard of halal and haram rather it is the duty of the Ummah as a whole which can only be achieved through an adequate Shariah standard that will lead to the establishment of concerned authorities throughout the world. Thus making any authority without having a proper Shariah Standard will be a futile exercise which may result in financial gain for the time being but in long run it may not be able to maintain confidence of the Muslim consumers. 





The author is lecturer in law at the International Islamic University, H-10 Islamabad, Post Code: 44000, Pakistan. He can be reached at: m.akbar@iiu.edu.pk ; Cell No: +92-3329424065