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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