Culture · Law · Society

Validity of Fatwas In India

Aanchal Singla, in this article explains the concept of fatwas and its status quo in India, with reference to the 2014 Supreme Court case – Vishwa Lochan Madan v. Union of India.

MEANING OF FATWA

A Fatwa is an Arabic word where the linguistic meaning is “opinion”. It is a term prevalent in the Islamic religion. The person issuing a fatwa is a qualified scholar, known as mufti. He gives legal opinion on matters related to the Islamic law. A term related to fatwa is “Yastafti”, meaning to ask for an opinion. In religious context, fatwa is a much wider term.[1] A Muslim can consult an Islamic scholar if a query arises and the answer is known as ‘Fatwa’. It is generally perceived as a religious ruling.

Muftis issue Fatwa based on their knowledge of Quran (the holy book of Islam, containing words directly dictated by God to Prophet Mohammad), Sunnah (compilation of all the acts of Prophet Mohammad) and Precedents (it includes general principles established earlier on matters through the consensus of scholars). But a mufti uses his own logical deductions and best of his potential to provide a solution if no answer can be found even after consulting these texts.  This is commonly called ‘Ijtihad’.

SOME CONTROVERSIAL FATWAS

  • On December 2, 1947, the University of Al-Azhar religious scholars, the most respected in the Sunni Muslim word, called for holy war against the Zionists.[2]
  • In April 1974 the Muslim World League issued a fatwa stating that followers of the Ahmadiyyah movement are to be considered “non-Muslims”.[3]
  • Ayatollah Ruhollah Khomeini in 1989 pronounced a death sentence on Salman Rushdie, the author of The Satanic Verses. [4]
  • Sheik Sadeq Abdallah bin Al-Majed (of Sudan) issued a Fatwa that prohibits vaccination of children claiming it is a conspiracy of the Jews and Freemasons. [5]
  • In 2012, the deputy governor hosted an open house to celebrate the birth of Jesus Christ despite a mostly unheeded edict from the Indonesian Ulema Council (MUI) for Muslims not to wish Christians a happy Christmas let alone take part in festivities. The MUI had said wishing a happy Christmas was akin to confirming the “misguided” teachings of Christianity.[6]
  • In 2013, Kashmir lost its only all-girls rock band on Monday as its three teenage members decided to call it quits, a day after the Grand Mufti issued a fatwa terming singing as un-Islamic and asked them to abandon it.[7]

 LEGAL VALIDITY OF FATWAS IN INDIA

The provision for inception of a Muslim court is praiseworthy but it has no legal identity. They are not a part of the ‘body of law’ of state. In the 2014 case, Vishwa Lochan Madan v. Union of India[8], the Supreme Court of India cleared the status of fatwas and the obligations generated by them.

In this case, an illiterate woman, a mother of 5 children, was raped by her own father-in-law. She filed a criminal case against him. But on the contrary, a fatwa was issued by the Dar-ul-Uloom. According to the fatwa, “if one raped his son’s wife and it is proved through witnesses, or the rapist himself confesses it, Haram Musharat will be proved”.[9] It means that if the father had a physical relationship with a woman, the son cannot keep physical relation with that woman, in this case his own wife because The Holy Quran says – Marry not the woman whom your father copulated.[10] So the fatwa prevented the husband and wife to live together. The couple did not even approach the cleric themselves. This decision was supported by the All-India Muslim Personal Law Board. It drew a large media attention. Despite all the hurdles, the husband and wife continued to live together. It questioned the parallel judiciary running in India, i.e. the Sharia Courts.

The case was brought before the Supreme Court Bench comprising Justices Chandramauli K Prasad and Pinaki C Ghose. The ruling in this case was as follows –

  • According to our constitution, a fatwa has no legal sanction and cannot be enforced by any legal process.
  • As they cannot be enforced, no criminal liability lies on the person disobeying these fatwas.
  • Whether to obey or not to obey these orders by mufti is dependent upon the discretion of the individual to whom they are issued. Though there rulings have religious backing so people are afraid to defy them.
  • The Sharia courts were deemed not legal, but constitutional. So they are still allowed to carry on their functions. [11]

CONCLUSION

In  Vishwa Lochan Madan v. Union of India, various issues come to mind. For example, the Fatwa which was issued, ordering the couple to separate from each other was a declaration made when none was asked for by the couple themselves. The couple chose not to go to their religious authorities and the Fatwa was declared only on the basis of the actions of a journalist who brought the case to the attention of the Dar-Ul-Uloom. In this manner, the personal decisions and choices of the couple were ignored.

It was decided by the proclaimed Fatwa that the couple must now separate even though they were willing and intended to stay together as the grievance of the couple was not against each other but rather against the Father-in-Law. In this way the Dar-Ul-Uloom had acted in a manner in which they had followed the letter of the Quran but had ignored its spirit, which for all the major religions is to spread peace and justice and to provide help to the victim rather than increase the hardships faced by them.

Not all fatwas have a negative implication. They interpret the Islamic texts for the betterment of society. But due the increased number of cases related to violation of rights due to fatwas, it was the need of the hour to pass some rules regulating them.

Through this judgement the Supreme Court of India has tried to maintain a balance between respect for the religious freedom of the Islamic people and the authority and validity of the legal system of India. In this way, the Supreme Court in its actions has shown that India is not a country which belongs to specific religious groups, but rather a country of diverse religious backgrounds, in which no person is to find himself facing a different type of justice against their will than the one provided by the authorised judicial bodies in India, which is to be common to all the people of India.

References-

[1] http://www.questionsaboutislam.com/shariah-islamic-law/what-is-a-fatwa.php

[2]http://www.internationalnewsandviews.com/need-of-hour-role-of-muslim-scholars/#sthash.jEYDKsuw.dpbs

[3] ibid

[4] ibid

[5] http://www.freerepublic.com/focus/f-news/1881250/posts

[6]http://www.thejakartapost.com/news/2012/12/26/christmas-greetings-chime-despite-edict.html

[7]http://timesofindia.indiatimes.com/india/A-day-after-fatwa-Kashmirs-all-girl-band-calls-it-quits/articleshow/18331997.cms

[8] Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707

[9]http://www.newindianexpress.com/opinion/columns/soli_j_sorabjee/Supreme-Court-Ruling-on-Legality-of-Fatwas-Historic/2014/07/20/article2339024.ece

[10] ibid

[11] http://www.livelaw.in/sharia-courts-fatwas-lack-legal-sanction-supreme-court-read-judgment/

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