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  • Tuesday, July 15, 2014
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  • By Gitanjali Kamat

    The Supreme Court of India recently pronounced a landmark decision, whereby Shariat courts will not have any legal sanction and fatwas are not to have any judicial enforcement, i.e., they are ‘illegal’, if found to be infringing upon the fundamental rights of an individual.

    This decision was given after the apex court heard a Public Interest Litigation from Vishwa Lochan Madan, a Delhi-based lawyer, who addressed the grievances of a 28-year-old mother to whom a Fatwa had been issued, directing her to live at her father-in-law’s house despite the allegations of rape committed by him.

    According to the religion of Islam, whenever a Muslim has a question, he can ask an Islamic scholar for answering the same. This answer, which is given in the light of an objective interpretation of religious evidence, is known as a ‘Fatwa’, or an ‘opinion’.

    When the facts and circumstances of this case came to the cognizance of the Supreme Court, it said “the power to adjudicate must flow from a validly made law”. Furthermore, it has forbidden the use of Fatwas to punish the innocent members of the Muslim community or to breach their basic fundamental rights, as guaranteed by the Constitution of India.

    Unfortunately, there have also been a myriad of similar cases, where the issuance of Fatwas have compromised unjustly, unfairly and unreasonably with an individual’s fundamental rights, in the name of securing religious righteousness. Be it the case of issuing a Fatwa against Kashmir’s first all-girl rock band or against Indian tennis star Sania Mirza’s dress code, these directives disregard the freedom of individuals, freedom of thought and expression just being one of them.

    The Supreme Court has said that if Fatwas (which arise from no legal foundation) are not followed by a Muslim, then they cannot be legally enforced. More importantly, if a Fatwa is found to be violating the fundamental rights of an individual, it would automatically be rendered as ‘illegal’ and appropriate action would be taken, according to the procedure established by law.

    Even at the advent of the British Rule in India, no stone had been left unturned to see that the rules of governance were reformed to their benefit. But the one field that they refused to step in was that of religious customs and personal laws.

    At the same time, it is of due significance to note that customs that contradicted the basic rights of an individual, endangering their life and freedom, were abrogated and discontinued from being enforced at law. Today, personal laws in India, such as the Muslim personal law in this case, have been allowed ample freedom to practice and profess their religion in their own customary manner.1 But, if it threatens an individual’s rights, restricts their progress in terms of thought or expression, or debases the person concerned, it violates the right to personal life and liberty. It is with this purpose that the Supreme Court has decided to remove the applicability and enforceability of a fatwa, in order to uphold the principles of natural justice in the society.

    Declaring the decision of a Fatwa by a Shariat Court as not legally binding on any Muslim who is not before it, is a mechanism to ensure that constitutional rights guaranteed to all the Muslims in the entire community are not violated.

    This should not be misconstrued as law interfering with the Muslim personal law. It should be understood in the sense that the courts of law can intervene, and not interfere, in matters where injustice is being done to the people in the name of religion. India is a country which is a potpourri of diverse cultures, languages and religions and thus, it can never attempt to abrogate rules concerning personal laws, as long as they do not contradict the basic philosophy underlying the Constitution of the country.


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