Public Policy

The Changing Times of Personal Laws

 

“Religion cannot be allowed to be merciless on the victim. Faith cannot be used as dehumanizing force”

These were the words of Justice C.K. Prasad in what is truly a landmark judgment passed by the Supreme Court of India wherein he declared the sanctity of Shariat Courts illegal and banned the issuance of Fatwas affecting the Fundamental Rights of Muslims across the country. The judgment arrives soon after Indian Muslims witnessed bizarre fatwas trying to dictate almost the entire spectrum of their social lives. These Fatwas have gone from banning an all- girl Kashmiri band leading them to disbanding to the notable controversial incident where celebrated author Salman Rushdie was banned from participating in the Jaipur Literary Fest two years ago. But Vishwa Lochan Madan, a journalist and petitioner of this case[1] moved to the Supreme Court and filed a Public Interest Litigation (PIL) questioning the legality of a fatwa, which made Imrana, a resident of Muzaffarnagar, treat her husband as her son after she was raped by her father-in- law. The PIL questioned the jurisdiction of Shariat Courts, Dar ul- Qaza (Personal Law Courts) and the Deoband Muftis in dictating the social behaviour of Muslims and in the process setting up a parallel judicial system.

The Shariat Law in India had found its applicability via the Muslim Personal Law (Shariat) Application Act of 1937, which provides the application of Islamic Law Code of Shariat to Muslims in India in personal affairs. These personal affairs range from matters related to nikaah, talaaq, zihar, lian, khula and mubaraat. The All India Muslim Personal Law Board and many other non- governmental/ judicial authorities act as the guardian of Shariat law in India and impose their opinions by way of issuance of Fatwas. A Fatwa in the Islamic faith is the term for the legal opinion or learned interpretation that a qualified jurist or mufti can give on issues pertaining to the Islamic law.[2] The person who issues a fatw? is called a Mufti. This is not necessarily a formal position since most Muslims argue that anyone trained in Islamic law may give an opinion (fatw?) on its teachings.

The All India Muslim Personal Law Board or AIMPLB is a non- government/ judicial authority. The AIMPLB consists of Ulemas. These Ulemas are bodies of scholars or experts in the field of Islamic law who seek to impose their views and opinions by way of these fatwas upon matters they come across themselves. More often than not they impose their individual opinions on the personal matters of parties who are not even seeking their opinion. Such was the case of Imrana from Muzzafarnagar where neither she nor her innocent husband sought an opinion from any judicial or non- judicial authority but got slapped in the face by what is clearly an outrageously socially unacceptable fatwa.

This practice brings into a light many controversial doubts in our minds. How can a non- judicial body impose its opinions on personal matters? How can a non- judicial authority establish Dar- ul- Qazas (Islamic courts) all over the country?

The court may say that the practice of the AIMLB is not ‘parallel judiciary’ but aren’t the practices of such Boards deceitful and deceiving? Also, keeping in mind Imrana’s case and many others of the kind, why do we constantly, in the name of religion, forget that personal laws can never be superior to fundamental rights in a country which preaches of secularism in every part of its Constitution?

About the Author

Tarang- ImageTarang Nagar

A student of Symbiosis Law School, Noida she has an aptitude for public speaking and likes reading. She has an inclination towards International Law, affairs and economics. When she manages to get spare time she is daydreaming about travelling all over the world.  She is a big novel and movie buff. She has a special interest in taxation law and wants to pursue the same in the future.

Endnotes

[1]Vishwa Lochan Madan vs. Union of India & Ors. http://judis.nic.in/supremecourt/imgs1.aspx?filename=41747

[2]Hallaq, Wael B. “Fatwa”. Encyclopedia of the Modern Middle East and North Africa. Encyclopedia.com.

2 thoughts on “The Changing Times of Personal Laws

  1. ‘Impose’ would not be the appropriate word here, I think. These boards can only object and oppose, since they lie outside the judicial circumference. Since such boards cannot impose their verdicts, even when an opinion is being sought – they have a different tool.. or shall we say a resource which they exploit.

    Sharing their views and opinions on individuals, such Law Boards create loud noises – whether right or wrong, in perspective – to create a buzz in the public sentiment. The individual’s story usually goes out of favor, overwhelmed by the weight carried these populist “guardian” bodies in the form of mass-appeal.

  2. Tarang, I would like to make a point here.
    the court mentioned that neither a fatwa nor a decision of Dar-ul-Qaza has any “sanction under our constitutional scheme”. It only held that fatwas and shariat court decisions are not legally enforceable.
    It would be improper to interpret it that shariat courts are illegal or fatwas are void.

    What is more important an issue here is that why are people forced to go to such parallel and alternate judiciary like shariat courts or khap panchayats? It is because the formal judiciary is either too costly or inaccessible to a majority leaving them with no other option. It is a wake up call to look into the appropriate judicial reforms.

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