Legal Validity of Fatwas And Religious Dictates

Though some dictates are plainly on the realm of religious affairs of an individual, there are other which infringe the fundamental and human rights of individuals including right to life, dignity, freedom and privacy. Our nation has witnessed gruesome crimes committed in the name of such dictates.

The scope of this article is to examine the validity of Religious dictates.

Khap Panchayats

In a significant judgment, the Supreme Court had, in March 2018, held that any attempt by Khap Panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely "illegal". Any kind of torture or torment or ill-treatment in the name of honour that tantamounts to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence, the then CJI Dipak Misra had said.

It further held that 'Khap Panchayats' or such assembly should not take the law into their hands and further cannot assume the character of the law implementing agency, for that authority has not been conferred upon them under any law. The bench also issued several directives in this regard.

Shariah Court and Fatwas

Exactly five years ago, on July 7^th 2014, the Supreme Court of India had ruled on validity of Fatwas (Religious Dictates).

On a petition filed by Vishwa Lochan Madan, the Apex Court bench comprising of Chandramauli Kr. Prasad and Pinaki Chandra Ghose held that no individual/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.

It further held that Fatwa does not have a force of law and thus it cannot be enforced by any process using coercive method. However, the Court did not interfere with the practice of 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. It said:

"In a case the person involved or the person directly interested or likely to be affected being incapacitated, by any person having some interest in the matter. Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be 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."

Uttarakhand HC Banned Fatwa

Placing reliance on this Apex Court judgment, a division bench of Uttarakhand High Court banned individual/institution in the state from issuing fatwas, holding that it infringes upon the statutory rights, fundamental rights, dignity, status, honour and obligation of individuals. The bench comprising of Justice Rajiv Sharma and Justice Sharad Kumar Sharma ordered thus in a suo motu PIL registered after noticing a news report that a panchayat issued "fatwa" for externment of the family of the rape victim in Laksar "Roorkee".

Later, on a special leave petition filed by Jamiat Ulama E Hind against this order, the Supreme Court stayed the High Court order and the petition is pending consideration.

Fatwas are not enforceable, but not per se illegal

In by Vishwa Lochan Madan case, the petitioner had sought a declaration that the judgments and fatwas pronounced by authorities have no place in the Indian Constitutional system, and the same are unenforceable being wholly non-est and void abinitio.

Though the bench ruled that it will be illegal for any person trying to enforce Fatwas, the bench categorically observed that matter practice of issuing Fatwas are themselves illegal. Fatwas can still be issued

• on a religious issue or any other issue so long it does not infringe upon the rights of individuals guaranteed under law.

• In respect of issues concerning the community at large at the instance of a stranger.

• Issuance of Fatwa on rights, status and obligation of individual Muslim, is not barred if the said individual asked for it or in case of his incapacity, by the person interested.