The Telegraph
Tuesday , July 8 , 2014
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No legal sanctity for fatwas

- Clergy free to issue order but compliance voluntary: SC

New Delhi, July 7: Fatwas issued by clergy or any organisation have no legal sanctity, and coercive methods to implement such orders will invite prosecution, the Supreme Court ruled today.

The court clarified that the clergy or organisations are at liberty to issue fatwas on religious issues but compliance by their followers should be voluntary.

“A fatwa issued by whatever body, being not emanating from any judicial system recognised by law, 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 methods. 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 bench of Justice C.K. Prasad and Justice Pinaki Ghose passed the order while disposing of a PIL by advocate Vishwa Lochan Madan. The petition had challenged the frequent issuance of fatwas.

The petitioner brought to the court’s attention two instances of women being raped by their own fathers-in-law and the Darul Uloom Deoband, issuing a fatwa that they could not lawfully live with their husbands in view of the rape. One of the rape survivors was directed live as a wife of the rapist father-in-law.

Justice Prasad, writing the judgment, said: “The (rape survivor’s) case is an eye-opener in this context. Though she became the victim of lust of her father-in-law, her marriage was declared unlawful and the innocent husband was restrained from keeping physical relationship with her. In this way a declaratory decree for dissolution of marriage and decree for perpetual injunction were passed.

“Though neither the wife nor the husband had approached for any opinion, an opinion was sought for and given at the instance of a journalist, a total stranger. In this way, victim has been punished. A country governed by rule of law cannot fathom it.”

The judgment added: “In our opinion, one may not object to issuance of fatwa on a religious issue or any other issue so long as it does not infringe upon the rights of individuals guaranteed under law.”

The bench said 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.

The court said: “It cannot be used to punish the 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.”

The top court has said a fatwa on individual rights can be issued only when the person concerned seeks such an advisory.

“We observe that no Dar-ul-Qaza (Islamic court) 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,” the bench said.

However, the court said, a fatwa may be issued on issues concerning the community at large at the instance of a stranger.

If a fatwa is sought by a complete stranger on an issue not concerning the community at large but an individual, then the organisation may consider the desirability of giving any response after examining the motive of the person seeking the advisory, the court said.

During the hearing, the Darul Uloom Deoband, had said it had issued the fatwa but pointed out that it had no agency or powers to enforce its advisories.

It is within the discretion of the persons or the parties who obtain fatwas to abide by it or not, the Darul Uloom Deoband had said, adding: “God-fearing Muslims, being answerable to the Almighty, obey the fatwas, others may defy them.”

Justice Prasad said: “A qazi or mufti has no authority or powers to impose his opinion and enforce his fatwa on anyone by any coercive method.”

The All India Muslim Personal Law Board had said “this establishment (Shariat courts) may not have police powers” but they were set up in line with religious tenets to ensure justice.

The court said: “The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land.

“A Fatwa is an opinion, only an expert is expected to give. It is not a decree, not binding on the court or the State or the individual. It is not sanctioned under our constitutional scheme.”

But, the bench clarified, it does not mean that existence of Dar-ul-Qaza or, for that matter, the practice of issuing fatwas were themselves illegal.

“It is informal justice delivery system with an objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned either to accept, ignore or reject it, the court said.

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