By Tahir Mahmood
14 July, 2014
As long as there is legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism operating for it in any particular community and order its abolition. Source: CR Sasikumar
The Supreme Court has not declared Fatwas illegal. It has situated them within the law.
A victory day for the Muslims, a day of deliverance for all others — these diametrically opposed perceptions of the apex court’s ruling on the fatwa and Dar-ul-Quaza traditions of Muslim society are being projected by the Urdu and English media respectively. Neither is warranted by the letter and spirit of the court’s absolutely innocuous judgment.
A few years ago, a Delhi lawyer had filed a writ petition in the Supreme Court seeking a ban on the fatwa system and Shariat courts, alleging that these were tantamount to running a “parallel judiciary” in the country. A division bench has now pronounced its judgment, which has been reported in the print media under sensational captions and is being hotly debated on TV channels. All this hurly burly is based on sheer misinformation about the system challenged and reflects a grave misreading of the judgment.
The Arabic word “fatwa” means an exposition of religious law by a Muslim cleric or seminary in answer to a specific query. It is like a lawyer’s opinion, which the querist may or may not act upon. The fatwa-giver writes his opinion as per his own understanding of religion, right or wrong, and does not claim it to be authentic — Fatwas always conclude with the words Wallahu A’lam Bi-Sawab (god knows better with certainty). Muslim law neither obliges any person to seek a fatwa in any matter nor makes it incumbent upon her to follow it if obtained.
As regards Shariat courts, known as Dar-ul-Quazas, these are in the nature of what is known in law as alternative dispute resolution (ADR) mechanisms and generally decide personal law discords of disputants who voluntarily approach them and agree to abide by their verdicts. In some cases, where one party to a family dispute (generally a wife) seeks relief from a Dar-ul-Quaza and the other party unscrupulously keeps absent just to harass the complainant, a decision may, in the interest of justice, be given ex parte. No Dar-ul-Quaza decision, whether given ex parte or after hearing the parties, constitutes what is known in law as res judicata so as to bar the jurisdiction of any state court to entertain and decide the dispute.
A Dar-ul-Quaza hierarchy was first established on a mass scale in Bihar in 1919 and has successfully been operating there for over nine decades. Dar-ul-Quaza decisions are often taken by the disputants to local civil courts, which treat them as arbitration awards and pass decrees accordingly. Justice C.K. Prasad, who wrote the Supreme Court judgment, served in Bihar for long years as advocate general and high court judge.
He must be fully conversant with the true nature of the so-called Shariat courts and his decision reflects a proper understanding of the system. He had spoken his mind during the hearing of the case in February this year when he told the petitioner: “You are assuming all Fatwas are irrational. Some Fatwas may be wise and may be for [the] general good also. People in this country are wise enough. If two Muslims agree for mediation, who can stay it? It is a blend of arbitration and mediation.” His judgment is fully in accord with this thinking.
That the court has declared Fatwas or Dar-ul-Quazas to be “illegal” is a fantasy; that it has endorsed these religious traditions with impunity a delusion. Obviously, as long as the freedom of speech and expression guaranteed by the Constitution is available to the citizens, the court cannot restrain a mufti from giving his opinion on a religious matter. And, as long as there is legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism operating for it in any particular community and order its abolition. The SC therefore has done nothing of the sort — the petitioner’s demand for that has been clearly rejected, and rightly so.
At the same time, the court has made it clear, again absolutely rightly, that neither a fatwa nor a Dar-ul-Quaza verdict can be forcibly implemented by anybody against the wishes of the person who obtained it. It has further observed that in a bilateral dispute, a third party’s request for a fatwa should not be entertained by the muftis. Unfortunately, both practices are rampant.
Unconcerned persons having no locus standi in a particular dispute seek and obtain a fatwa, and the neighbours of the parties in dispute or the local community organisations harass them for not acting upon it. Instead of speaking out against such clearly unlawful practices in a mild way, the SC, in my opinion, could have issued mandatory directions in this regard. Of course, it has said in so many words that a person whose legal rights are being violated can always approach a state court for relief.
Instead of rejoicing over the judgment, Muslims must duly take its real message and translate it into concrete action. Others must let the judgment remain what it is — there is nothing in it for them to “celebrate”. Muslims should also evolve ways and means to ensure that fatwas are issued only by real experts in religious jurisprudence.
Tahir Mahmood has been chair of the National Minorities Commission and member, Law Commission of India