Solutions suggested by clerics are mostly found to be outrageous
If states with an established religion face issues accommodating other religions, secular states do not have it much easier.
On the one hand, we have the almost militant secularism of states like France and Turkey while, on the other, we have countries like Canada taking pride in the ‘mosaic’ and multiculturalism they represent. The United States, the jurisdiction which I think has struck the best balance, lives by benefiting from the tension between the free exercise of religion and the prohibition of establishment of a religion. India also espouses secularism but because of its history and, equally importantly, its present (with a Hindu nationalist leadership) presents unique dilemmas.
India is, and markets itself, as the cradle of great civilisations along with their religious traditions. Diversity is its buzzword. Multiple faiths are its rainbow. But as much as this seems fascinating to a sociologist, the lawyers might always be scratching their heads about how to accommodate requirements of different faiths. For decades, India has debated the desirability of a uniform civil code -- which would mean that in matters relating to marriage, divorce, inheritance, custody etc. a central law will apply instead of accommodation of different faiths as per their own preferences. If you are in the majority, a uniform civil code represents another step towards a cohesive stronger national identity and system. If you are a minority, such a measure may well be seen as intrusion of the state into essentially private affairs.
Muslims, wherever they may be in the world, often prefer settling many matters related to marriage, divorce, inheritance, custody etc. as per their interpretation of Sharia. This practice has been in vogue in India since India’s independence. Part of this practice results in fatwas being issued by various Muslim ulema. Some of these fatwas might be banal while others have been downright (to use the words of the Honourable Supreme Court of India) "obnoxious".
Vishwa Lochan Madan decided in 2005 that enough was enough. Hence a petition was filed before the Honourable Supreme Court of India with the prayer that the activities of the All India Muslim Personal Law Board and its Dar-ul-Qazas (courts) be declared illegal.
Before someone tells you that the petition was motivated by communalism, consider its background: there were at least three cases (noted specifically by Supreme Court of India) in which Muslim women had suffered because of fatwas. In the first case, a woman’s father-in-law raped her and a fatwa was issued that she could no longer live with the rapist’s son (her husband). The woman or her husband never asked for a fatwa but they were forced apart.
In another case, some ulema had issued a fatwa that a woman raped by her father-in-law cannot file a police complaint (under the laws of India) unless she produced a witness or the rapist’s son (her husband) backed up her claim. In yet another case, a fatwa was issued that a Muslim woman if raped by her father-in-law should divorce her husband and marry the rapist.
All of this actually happened.
Such practices and rulings clearly threaten a secular state’s constitutional order. These women were traumatised and victimised because of distorted and patriarchal interpretations of religion.
The petition in the Supreme Court of India argued that the apex court must protect the vulnerable Muslims, including women, who because of lack of resources/time cannot access India’s justice system and are forced into a fatwa-dominated parallel judicial system.
The way the Supreme Court of India dealt with the issue is extremely admirable. It had to balance a number of things: rights of vulnerable citizens, India’s secularism, respect for the Muslim faith and adherence to India’s constitution.
The court ruled that while the All India Muslim Personal Law Board and its courts decide disputes, this is "[an] informal justice delivery system with an objective of bringing about amicable settlement between the parties." It was held that no individual can be forced to accept a fatwa. The reason for this is that the body issuing the fatwa is not recognised by India’s law. However, that does not make the body illegal. Its decisions cannot be enforced but if someone obeys a fatwa out of their own consent then there is nothing wrong with it -- unless of course the fatwa itself violates a fundamental right under the constitution.
The debate will continue but the ruling is important.
Equally important is the fact that India’s apex court noted with strong disapproval the practice of strangers going to ulema and obtaining fatwas about individuals and their lives -- even if the issue has no bearing on the life of the community on the whole. After this ruling, All India Muslim Personal Law Board is prohibited from issuing fatwas relating rights, status or obligations of an individual unless the individual herself or in case of her incapacity her representative asks for a fatwa. As per the court’s ruling, a fatwa can devastate an individual or a family life, therefore, the ulema must ask themselves whether the issue relates to the community and also consider the desirability of any response. Further, the motivation behind the seeking of the fatwa must not be ignored. Fatwas can only be issued if they relate to questions that affect the community on the whole.
The stance taken by the Union of India, a respondent in this case, was also admirable. It urged the apex court not to declare the courts set up by ulema as illegal since they facilitated, akin to private arbitration, resolution of many disputes. Union of India also argued that even if a few obnoxious fatwas have been given by some ulema, this should not destroy an entire system, which a community desires.
To be fair to the Union of India, it had no easy choices: a human rights attorney might criticise India for not taking a firmer stance and calling for abolition of such ‘private’ courts. But, of course, India had to show respect for the sentiments of millions of its Muslim citizens and, as a secular state should do, it advocated the important distinction between undesirable outcomes of an otherwise desirable system. States such as Madhya Pradesh and Uttar Pradesh also urged the apex court of India not to interfere with the functioning of Dar-ul-Qazas.
From a strictly legal perspective, India’s Supreme Court also refused to recognise that a Dar-ul-Qaza or any other sharia-inspired ‘court’ has any ‘judicial power’ -- since judicial power can only be exercised by the state or its institutions. Had the court held that a Dar-ul-Qaza does exercise judicial power, it would have had no option but to strike these down and declare them illegal. This was a masterstroke in judicial conservatism and deserves respect.
So, the ulema cannot force anyone to accept their decisions. They do not have the backing of law but they are not prohibited by law either unless they cross limits. Furthermore, they should not meddle in people’s lives unless an individual asks for it and even then the relevant individual’s fundamental rights under India’s constitution remain intact.
How do you think we in Pakistan should address the issue of fatwas and the damage they cause? Point to ponder.