SC : Shariat Court, Fatwa have no legal sanction PDF Print E-mail
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JPNN|New Delhi | July 07, 2014|The apex court, however, refused to declare Dar-ul-Qaza or practice of issuing fatwas as illegal, saying it is an informal justice delivery system for bringing amicable settlement between the

parties and it is for the persons concerned to accept, ignore or reject it. It said that there was nothing wrong in issuing fatwas so long as it did not infringe upon the rights of individuals guaranteed under law and cautioned Dar-ul-Qaza not to issue fatwas against persons who are not before it."We observe that no Dar-ul-Qazas or for that matter, anybody or institution by any name, shall give verdict or issue fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it," a bench of justices C K Prasad and Pinaki Chandra Ghose said Monday.

"In any event, the decision or the fatwa issued by whatever body being not emanating from any judicial system recognised by law, it is not binding on anyone including the person, who had asked for it." "Further, such an adjudication or fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive method. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law," the apex court said in its 20-page judgement.

It said issuance of fatwa on rights, status and obligations of individual Muslims, is not permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. "Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights." "It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force," it said.

The apex court said that it is the fundamentals of any legal judicial system that power to adjudicate must flow from a valid law and fatwa has no place in independent India under our Constitutional scheme. "In our opinion, the decisions of Dar-ul-Qaza or the fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law."

"A Qazi or Mufti has no authority or powers to impose his opinion and enforce his fatwa on any one by any coercive method. In fact, whatever may be the status of fatwa during Mughal or British Rule, it has no place in independent India under our Constitutional scheme," the bench said. The bench said fatwas have no legal sanction and cannot be enforced by any legal process and in case any person or body tries to impose it, their act would be "illegal".

"The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land. They are not part of the corpus juris of the State. A fatwa is an opinion, only an expert is expected to give." "It is not a decree, not binding on the court or the State or the individual. It is not sanctioned under our Constitutional scheme. But this does not mean that existence of Dar-ul-Qaza or for that matter practice of issuing fatwas are themselves illegal."

"It is informal justice delivery system with an objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned either to accept, ignore or reject it," the bench said. The apex court passed the verdict on a PIL filed by advocate Vishwa Lochan Madan questioning the constitutional validity of Shariat courts which allegedly run a parallel judicial system in the country. The All India Personal Law Board had earlier submitted that fatwas were not binding on people and it was just an opinion of a 'mufti' (cleric) and he had no power or authority to implement it. The petitioner had contended that the fundamental rights of Muslims could not be controlled and curtailed through fatwas issued by 'qazis' and 'muftis' appointed by Muslim organisations.

The court while passing the verdict cited a case where fatwas issued by clerics led to an innocent person being victimised. "Imrana’s case is an eye-opener in this context. Though she became the victim of lust of her father in law, her marriage was declared unlawful and the innocent husband was restrained from keeping physical relationship with her." "In this way a declaratory decree for dissolution of marriage and decree for perpetual injunction were passed. Though neither the wife nor the husband had approached for any opinion, an opinion was sought for and given at the instance of a journalist, a total stranger. In this way, victim has been punished. A country governed by rule of law cannot fathom it," the bench said.

The centre had also submitted that fatwas are advisory in nature and no Muslim is bound to follow those. It said the Dar-ul-Qaza can be perceived as an alternative dispute resolution mechanism, which strives to settle disputes outside the courts expeditiously in an amicable and inexpensive manner "Dar-ul-Qaza does not administer criminal justice and it really functions as an arbitrator, mediator, negotiator or conciliator in matters pertaining to family dispute or any other dispute of civil nature between the Muslims," the centre had said, adding, "few bad examples may not justify abolition of system, which otherwise is found useful and effective". Agency

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Last Updated on Friday, 11 July 2014 15:29
 

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