In 2005, Vishwa Lochan Madan filed a writ petition in the Supreme Court, contending that the functioning of what he termed pseudo-judicial institutions, such as Sharia courts, “threatens the sovereignty of India’s secular judicial system, and their functionaries’ flagrant and blatant violations of India’s laws are an affront to the Constitution”.
Lochan was spurred to do this after Muslim clerics issued three fatwas that he felt were illegal and violated women’s rights. Among them was the case of Imrana, a woman in Uttar Pradesh who was raped by her father-in-law.
When she lodged a first information report against him, the village council declared that she must treat her husband as her son. Subsequently, the Islamic seminary of Darul-Uloom of Deoband passed a fatwa supporting the declaration, and soon thereafter, the All India Muslim Personal Law Board followed suit.
In the Supreme Court’s ruling on Lochan’s petition, delivered on Monday, it held that fatwas were legally non-enforceable, and unless an individual voluntarily asked for it, no fatwa could be issued. Moreover, any fatwa impinging upon a citizen’s fundamental rights would be illegal, and the person or cleric trying to enforce it would be dealt with in accordance with the law.
No Rejection of Sharia Courts
While rejecting Lochan’s strident demand for the outlawing of Sharia courts and other allied bodies, the courts said that all fatwas were not bad, that they posed no threat to either the Constitution or India’s legal system, and that it would be inappropriate to rule on matters of religion and theology. During the proceedings, the court reprimanded Lochan for – in their terms – overdramatising the situation.
Lochan’s petition wanted the Sharia courts and the darul qaza, or place of adjudication, to be declared illegal and unconstitutional. But contrary to some media reports, the court did not rule on the legality of Sharia courts, nor did it outlaw the darul qaza or the All India Muslim Personal Law Board.
In fact, the court was not stating anything new or laying down anything unprecedented in law. It was only putting things in perspective to clear the air and sound a stern warning.
Understanding fatwas
Fatwas, religious opinions issued by a Muslim cleric, are at the heart of the matter. They are neither religious diktats that are binding upon all Muslims, nor do they carry the force of law. Yet fatwas have hogged the limelight for all the wrong reasons: the ones that come to national attention, especially, tend to have a cleric giving vent to an outrageous, even ludicrous opinion.
The court did not support Lochan’s plea to ban fatwas altogether. Rather, it set a fine balance. In holding that seminaries and clerics were free to issue fatwas with respect to matters that affected the community at large, the court was actually protecting Muslims’ rights as religious minorities.
At the same time, by cautioning those who seek fatwas against individuals whom they do not know, and holding that such violators would not be spared by the law, the court was sending out a clear warning.
The respondents to the case, the government of India, the state of Uttar Pradesh, Darul Uloom Deoband, a famous and historic Islamic school in UP, and the All India Muslim Personal Law Board, submitted that the separate adjudicatory mechanism that Muslims were entitled to was sanctioned by law, citing the Muslim Personal Law (Shariat) Application Act, 1937. They also said the mechanism was a key ingredient of the community’s fundamental right to freedom of religion, granted under Articles 25 and 26 of the Constitution.
The Case for the Defence
The respondents argued that darul qazas were not adjudicatory bodies staffed with obscurantist and misogynist bigots who sought to challenge India’s legal system. Rather, they were only bodies for alternative dispute resolution, where the poor could go to avail themselves of timely justice at nominal cost.
Darul qazas deal only with civil disputes, particularly in the domain of matrimonial law. Contrary to the literal meaning of their name, they are not adjudicatory bodies. Their decisions are not judicial opinions and are therefore not legally binding upon the parties.
Moreover, those not satisfied with these decisions have the right to – and often do – avail themselves of the right to approach the family courts in India’s legal framework. Not only did the Supreme Court accept these submissions, it also lauded the establishment of such bodies.
Reasonable Pluralism
The legal philosopher John Rawls has delineated the principle of reasonable pluralism in public political culture, arguing for a system that doesn’t steamroll diversity and in the process violate minorities’ rights in the name of achieving uniformity. At the same time, it doesn’t embrace those practices that end up interfering in others’ rights. In the current case, the Supreme Court took this approach instead of succumbing to tired tropes of prejudice and boilerplate denouncements.
In 2008, Reverend Rowan Williams, then the Archbishop of Canterbury and the head of the Anglican Church, called for Sharia principles to be integrated into and recognised by Britain’s legal system. He was ridiculed and abused by the British press at the time, but his thoughtful pronouncement was in line with Rawls’ dictum: “If what we want socially is a pattern of relations in which a plurality of diverse and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty.”
India’s Supreme Court seems to agree.
We welcome your comments at
letters@scroll.in.
Lochan was spurred to do this after Muslim clerics issued three fatwas that he felt were illegal and violated women’s rights. Among them was the case of Imrana, a woman in Uttar Pradesh who was raped by her father-in-law.
When she lodged a first information report against him, the village council declared that she must treat her husband as her son. Subsequently, the Islamic seminary of Darul-Uloom of Deoband passed a fatwa supporting the declaration, and soon thereafter, the All India Muslim Personal Law Board followed suit.
In the Supreme Court’s ruling on Lochan’s petition, delivered on Monday, it held that fatwas were legally non-enforceable, and unless an individual voluntarily asked for it, no fatwa could be issued. Moreover, any fatwa impinging upon a citizen’s fundamental rights would be illegal, and the person or cleric trying to enforce it would be dealt with in accordance with the law.
No Rejection of Sharia Courts
While rejecting Lochan’s strident demand for the outlawing of Sharia courts and other allied bodies, the courts said that all fatwas were not bad, that they posed no threat to either the Constitution or India’s legal system, and that it would be inappropriate to rule on matters of religion and theology. During the proceedings, the court reprimanded Lochan for – in their terms – overdramatising the situation.
Lochan’s petition wanted the Sharia courts and the darul qaza, or place of adjudication, to be declared illegal and unconstitutional. But contrary to some media reports, the court did not rule on the legality of Sharia courts, nor did it outlaw the darul qaza or the All India Muslim Personal Law Board.
In fact, the court was not stating anything new or laying down anything unprecedented in law. It was only putting things in perspective to clear the air and sound a stern warning.
Understanding fatwas
Fatwas, religious opinions issued by a Muslim cleric, are at the heart of the matter. They are neither religious diktats that are binding upon all Muslims, nor do they carry the force of law. Yet fatwas have hogged the limelight for all the wrong reasons: the ones that come to national attention, especially, tend to have a cleric giving vent to an outrageous, even ludicrous opinion.
The court did not support Lochan’s plea to ban fatwas altogether. Rather, it set a fine balance. In holding that seminaries and clerics were free to issue fatwas with respect to matters that affected the community at large, the court was actually protecting Muslims’ rights as religious minorities.
At the same time, by cautioning those who seek fatwas against individuals whom they do not know, and holding that such violators would not be spared by the law, the court was sending out a clear warning.
The respondents to the case, the government of India, the state of Uttar Pradesh, Darul Uloom Deoband, a famous and historic Islamic school in UP, and the All India Muslim Personal Law Board, submitted that the separate adjudicatory mechanism that Muslims were entitled to was sanctioned by law, citing the Muslim Personal Law (Shariat) Application Act, 1937. They also said the mechanism was a key ingredient of the community’s fundamental right to freedom of religion, granted under Articles 25 and 26 of the Constitution.
The Case for the Defence
The respondents argued that darul qazas were not adjudicatory bodies staffed with obscurantist and misogynist bigots who sought to challenge India’s legal system. Rather, they were only bodies for alternative dispute resolution, where the poor could go to avail themselves of timely justice at nominal cost.
Darul qazas deal only with civil disputes, particularly in the domain of matrimonial law. Contrary to the literal meaning of their name, they are not adjudicatory bodies. Their decisions are not judicial opinions and are therefore not legally binding upon the parties.
Moreover, those not satisfied with these decisions have the right to – and often do – avail themselves of the right to approach the family courts in India’s legal framework. Not only did the Supreme Court accept these submissions, it also lauded the establishment of such bodies.
Reasonable Pluralism
The legal philosopher John Rawls has delineated the principle of reasonable pluralism in public political culture, arguing for a system that doesn’t steamroll diversity and in the process violate minorities’ rights in the name of achieving uniformity. At the same time, it doesn’t embrace those practices that end up interfering in others’ rights. In the current case, the Supreme Court took this approach instead of succumbing to tired tropes of prejudice and boilerplate denouncements.
In 2008, Reverend Rowan Williams, then the Archbishop of Canterbury and the head of the Anglican Church, called for Sharia principles to be integrated into and recognised by Britain’s legal system. He was ridiculed and abused by the British press at the time, but his thoughtful pronouncement was in line with Rawls’ dictum: “If what we want socially is a pattern of relations in which a plurality of diverse and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty.”
India’s Supreme Court seems to agree.
