If anything, the Supreme Court judgment on a 2005 writ petition demanding a ban on Darul Qazas and the issuance of fatwas, was a victory for Muslim organisations as well as the government. However, the reporting of the subject and consequent debate over it, points to a deep-seated malaise, ignorance and bias.
The petitioner Vishwa Lochan Madan had pleaded in the Apex Court that the All India Muslim Personal Law Board (AIMPLB), Darul Uloom, deoband and Imarat Sharia are striving to establish a ‘parallel judicial system in India,’ by establishing Darul Qazas and organising camps to train Qazis and Naib Qazis to administer justice according to the Shariat, making it extremely difficult for Muslim women to get justice. The petitioner sought that the Shariat Court be declared “absolutely illegal, illegitimate and unconstitutional”, that respective state governments be directed to take effective steps to disband these Darul Qazas and that the court should also direct Muslim bodies to restrain from meddling in the personal issues of individuals.
The two judge bench of Chandramauli Kr. Prasad and Pinaki Chandra Ghose disposed the petition without any order and even noted, “The grievance of the petitioner that Darul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived.” The judgement went on to add, “The object of the establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status.”
The petition was thus rejected and the Court seemed to have agreed with the stand taken not only by the All India Muslim Personal Law Board (AIMPLB) and Darul Uloom, but also the Union of India and the state governments of Madhya Pradesh and Uttar Pradesh, who were respondents in the case. In fact, they said “the object of establishment of such a court may be laudable,” and noted, “It is not sanctioned under our constitutional scheme. But this does not mean that existence of Darul Qaza or for that matter the practice of issuing fatwas are themselves illegal.” They also added that “It is an 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.”
Yes, the bench did observe that fatwas (opinions, presented in the light of Islamic jurisprudence) based on the Shariat (Islamic Canonical Law based on the teachings of the Quran and the traditions of the Prophet) and issued by Darul Qazas have “no legal sanction and cannot be enforced by any legal process,” and can in fact be challenged in the court of law as “whatever may be the status of the fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Darul Qaza issuing that or the person concerned or for that matter anybody.”
But the Bench came to this conclusion not on the argument of the petitioner, but agreed completely with the Muslim organisations that Darul Qazas are an “informal justice delivery system aimed to bring about amicable settlement of matrimonial disputes between the parties” and has “no authority, means or force to get their fatwas implemented.”
Yet on prime time television panel discussions, the ‘conscience keepers’ of the nation pushed the Muslim panelists to the wall and called their argument “completely broken and illogical.” Some of the purported fatwas in the news -- a ban on an all women band in Kashmir and the Imrana rape case -- were shot like bullets to prove how regressive they are.
The Court in fact, had agreed that in matters of Islamic jurisprudence, fatwas can be sought. “In our opinion, one may not object to issuance of fatwa on a religious issue or any other issue so long it does not infringe upon the rights of individuals guaranteed under law. Fatwa may be issued in respect of issues concerning the community at large at the instance of a stranger, but if it is sought on an issue not concerning the community at large but individual, then the Darul Qaza or for that matter anybody may consider the desirability of giving any response and while considering it, should not be completely unmindful of the motivation behind the fatwa.”
If anything, this was as much a warning to mischievous reporters trying to get provocative headlines for the sake of creating a controversy. From the purported fatwa on Sania Mirza’s dress to the one first issued by local clerics on Imrana, often the so-called opinions passed are not by some Qazi or Mufti but local mullas with limited understanding of Islam and issues of modern day life, at the behest of reporters. As the court pointed out, the clerics must not be “unmindful of the motivation behind the fatwa,” and must “consider the desirability of giving any response.”
The fatwa factory
In 2010, Kashiful Huda analysed the online fatwas issued by the Darul Uloom, Deoband in an article and concluded that only 20% of the fatwas concerned women, the rest of the 80% were personal, related to business, sectarian, etc. He also pointed out that on an average, most Muslim men never sought fatwas and that they have often been blown out of proportion. Huda, who is based out of USA, agreed that some of the fatwas were not in sync with modern progressive thoughts, but added, “Those who are sincere about reform among the Muslim community need to come out of the pages of English dailies and take their intellectual jihad to the mosques and madrasas.” In the case of Imrana, a local Panchayat had first issued a diktat and later a journalist tricked a cleric to give his opinion that created the furor. It may be compared with a Khap panchayat, but it would be wrong, for fatwas are often reasoned based on Islamic principles in the light of the Quran and hadiths, whether one agrees with it or not.
M Reyaz is a Delhi-based journalist. He tweets at @journalistreyaz.