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/

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