Opinion is divided on the Supreme court observation on Tuesday that it is not inclined to intervene in religious laws. Though the court said that fatwa cannot be forced upon people, it stopped short of asking religious institutions not to issue fatwas or any such orders.
The SC was thus washing its hands of an opportunity to put a stop to the rising trend of obscurantism and fundamentalism. In 2011, in an unrelated case, the Supreme court had observed that casteist and such other regressive practices should be curbed. On the issue of khap panchayats the court had struck a blow for modernism.
"This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal," a bench of justices Markandey Katju and Gyan Sudha Misra said in a 2011 judgment.
In Tuesday's judgment, which happened after a petitioner questioned a fatwa that forced a young Muslim lady to marry her father-in-law who had raped her, the court said: "We can protect people who are subjected to suffering due to this. When a pujari gives a date of Dushera, he cannot force someone to celebrate the festival on that day. If somebody forces them on you, then we can protect you," the bench said after the petitioner pleaded that fatwa issued by clerics is unconstitutional.
"These are political and religious issues and we do not want to go into it," the bench said while hearing a PIL filed by an advocate, Vishwa Lochan Madan, challenging the constitutional validity of Shariat courts for allegedly running a parallel judicial system in the country. The order was reserved.
All India Personal Law Board submitted fatwa is not binding on people and it is just an opinion of Mufti and he has no power and authority to implement it.
Senior advocate Raju Ramachandran, appearing for the board, submitted if a fatwa is sought to be implemented against the wish of the person concerned, then he can approach court of law against it.
The petitioner submitted the fundamental rights of Muslims could not be controlled and curtailed through fatwas issued by qazis and muftis appointed by Muslim organisations.