No, the Supreme Court, didn't say that fatwas are 'illegal'
The SC did, however, “add a word of caution” given the religious sanction fatwas have an impact on “God fearing Muslims”.
New Delhi: The over-excited coverage of observations made by the Supreme Court on fatwas and Shariat courts seems to be a case of missing the woods for the trees.
First, a little context. The observations were made by the Supreme Court while dismissing a petition that had sought the abolition of the system of fatwas and the disbanding of Dar-ul-Qazas (Muslim Courts) and Shariat courts. The Supreme Court in its ruling refused to entertain the petitioner’s prayers describing his grievance as “misconceived”. You can view the full judgement here.
The Union of India, one of the respondents in the case, in its affidavit to the court clarified that fatwas were “advisory in nature” and that “no Muslim is bound to follow” them. It further told the court Darul-ul-Qazas “have no power or authority to enforce its orders and, hence, it cannot be termed as either in conflict with or parallel to the Indian Judicial System.”
The All India Muslim Personal Law Board, in its submissions, told the court that the Dar-ul-Qazas “have no authority, means or force to get their fatwas implemented” and that the petition was “based on ignorance and/or misconception that they are parallel courts or judicial system.”
The Dar-ul-Uloom in Deoband, also named a respondent in the case for issuing a fatwa in the infamous ‘Imrana case’, told the court that “it has no agency or powers to enforce its Fatwas.” (In the ‘Imrana case’, which finds mention in the petition, a 28-year-old woman was allegedly raped by her father-in-law and the Dar-ul-Uloom issued a fatwa that recommended the dissolution of her marriage).
The Supreme Court, reiterating the stand taken by the respondents in this case, in its ruling said, “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 (emphasis added). 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.”
The Supreme Court did, however, “add a word of caution” given the religious sanction fatwas have and therefore the ‘psychological impact’ it has on “God fearing Muslims”.
Referring to the Imrana case, where it was a third-party and not the persons involved who had approached the Dar-ul-Uloom for a fatwa, the Supreme Court said, “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….We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue fatwa concerning an individual, unless asked for by the person involved or the person having direct interest in the matter…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.”
Influential Muslim bodies like the Jamaat-e-Islami Hind welcomed the Supreme Court ruling even as they questioned the projection of apex court’s observations as a clamp down on fatwas and Shariat courts.
“There is nothing new in what the Supreme Court has said. The Shariat courts and fatwas never had any legal sanction. A fatwa is an opinion given by an expert. And opinions might differ. There is no provision that says fatwas will be imposed on anyone. But the Supreme Court ruling is being interpreted in a different way and it is being projected as if fatwas have been declared illegal by court. What the Supreme Court has said is what is existing today…We don’t find anything objectionable in the decision. But the way it is being interpreted is wrong,” said Salim Engineer, spokesperson of the Jamaat-E-Islami Hind.
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