LAW OF LAND AND MISLAID
The Supreme Court ruling on Sharia courts and fatwas is basically a re-statement of the current practice with an ignorant media recasting the observations as a major intervention changing the status quo. The law of the land is the last word for all citizens, there is no parallel system of jurisprudence, and fatwas are not and never have been binding on the Muslims.
India does not have Shariat courts in the sense that these exist in Muslim majority countries like Pakistan, but it does have an informal community consultation process through Dar-ul-Qaza’s run by the Muslim clerics that are consulted from time to time on personal legal matters by members of the community. The observations or decisions taken by the Qazi’s at this level are not, and never have been in this country, legally binding on the individuals who can reject or accept the interpretations as they so wish.
As Islamic scholars and lawyers rare consensus, these fatwa’s or decrees issued by the Muslim clerics basically represent an opinion based on the interpretation of the Islamic law. The individual seeking the fatwa can reject it if he or she so wishes. Or challenge it in the courts of the land that remain the last word on all such issues. A Muslim, like any citizen of India, even if married under the Muslim Personal Law can seek justice from the courts that then interpret the case under the same law and pronounce a verdict. This is binding over and above the Dar ul Qaza’s that are at best described as an informal community arbitration system, used by almost all other communities and castes in different forms.
Former chairperson of the Minorities Commission Wajahat Habibullah was clear that the fatwas were at best an “opinion that is up to the person to accept and follow, or reject altogether. It does not need to be followed at all, as in Islam there is no space for any clergy at all.” In his view the media had unnecessarily “sensationalised a non-issue.”
Islamic scholar Dr Zafar Mehmood said that an individual, if confused about the provisions of the Islamic law, can approach the clergy to ask for an opinion on any issue. “It is a facilitation system for the individual within the community, there is no question of having to follow the fatwa as the ultimate responsibility rests with the individual who can accept or reject it as he or she so wishes,” he said. And as Dr Mehmood pointed out, if there is any conflict between the decree and the law of the land the latter will prevail.
The Supreme Court has ruled along the same lines, reiterating the current position and refusing to declare the Dar-ul-Qazi system as “illegal” saying it was an informal justice delivery system and the individual had the full right to accept or reject it.
Well known lawyer Mehmood Paracha drew a comparison between the fatwa process, and the system of approaching law officers for an opinion. He said that the system of seeking an opinion from the Qazis on matters of personal law basically reduced the burden on the mainstream judiciary. He said that the courts had set up mediation centres, and pursued the arbitration clause relentlessly, to reduce the burden of legal cases and encourage individuals to settle disputes. “There is nothing wrong in the judgement at all, “ Paracha said,”the Supreme Court has stated the obvious.”
The media is being accused of sensationalising the ruling and trying to bring in levels of discord by presenting it as a ‘landmark’ judgement to deal with primitive fatwas. As the scholars pointed out, fatwas like violations of traffic laws for instance could transgress the lines, but then were not at all binding on the Muslims who could reject these altogether. Opinions of regressive Qazi’s have always been ignored by the community with several instances of men and women challenging these in the courts of the land. For instance, the famous Shahbano case that created a political storm only after the central government intervened in it, had travelled quietly from the Qazi level to the Supreme Court that finally ruled in favour of the destitute woman. The Rajiv Gandhi government at the time, unfortunately, generated a huge controversy by succumbing to the pressure of some fundamentalists and overturning the judgement through an Act of Parliament.
The Jama Masjid Imam for instance has often issued fatwas asking the community to vote for one or the other political party. This has always been ignored by the Muslims across the country, unless it feeds into their own political perceptions at a particular point in time. These decrees are a dime a dozen and rejected with the same speed as these are issued. These might be socially binding on the more ignorant individuals, but have had no basis in the law. Despite the mischievous reporting by some sections of the media, there is no parallel judiciary operating for the Muslims.
The Dar ul Qazi system is best described as a consultative mechanism by elders and supposed experts in the Sharia law. Just, as Paracha put it, like the panchayati raj system, or the system of consultations followed by tribals, or for that matter the khap panchayats that are outside the law, but wield considerable clout within their communities.