The Kashmir Monitor
By A. Faizur Rahman
By announcing its decision to open several Darul Qazas (Sharia courts) across India, the All India Muslim Personal Law Board (AIMPLB) has once again stirred a controversy that would give a fillip to the politics of polarisation. The ostensible aim is to educate “the lawyers, judges and the common man about Sharia law” through the so-called Tafheem-e-Shariat (understanding the Sharia) committees. But this is going to be immensely counterproductive, as the board’s obscurantist perception of the Sharia will only result in spreading misinformation about the true nature of Islam.
Although the Supreme Court’s July 2014 verdict in the Vishwa Lochan Madan case did not delegitimise Darul Qazas, it made it clear that as Darul Qazas were not part of the corpus juris of the state, Fatwas issued by them – or for that matter any person or religious body – do not amount to an adjudication of dispute by an authority under a judicial system sanctioned by law. Therefore, a qazi or mufti has no power to impose his fatwa on anyone and any attempt to do so would be illegal and actionable.
The court’s decision not to outlaw Darul Qazas was based on its acceptance in good faith of the pleadings of the AIMPLB and Darul Uloom Deoband that Darul Qazas were akin to arbitration centres and not part of a parallel judicial system.
AIMPLB’s submissions are a clear departure from the original definition of a Darul Qaza. In Arabic Dar means “a house” and Qaza denotes a final decision or a binding decree. This makes Darul Qazas a house of decisions (court), and Qazi, the pronouncer of decisions (judge).Throughout Muslim history, Darul Qazas adjudicated both civil and criminal cases and had the powers to pass ex parte orders against parties who fail to appear before them.
Even in India, when as part of the judicial reform process, governor-general Cornwallis enacted a resolution in 1790 to introduce a new three-tiered court system in Bengal (which was later on extended to other parts of India) he included Qazis and muftis as “law officers” to assist the British judges. The highest criminal court of this system Sadr Nizamat Adalat was assisted by the chief Qazi of the district and two muftis and it had to apply Islamic law as per the Fatwas of the law officers which were binding on the court.
The British judges had to wait till 1817 to overrule these Fatwas when a resolution was introduced to repeal their binding character. (Rudolph Peters, Crime and Punishment in Islamic Law, pp. 109-119) In other words, only after 1817 the decisions of Qazis and muftis lost their binding character – not because they suddenly became opinions but because the British delegitimised their legal status
The word fatwa too has almost the same meaning as qaza. The Lane’s Arabic Lexicon defines it as “a notification of the decision of the law in, or respecting, a particular case”, or “an answer or a reply stating the decision of the law.” This is elucidated by the following clause in verse 4:176 where God Himself issues a fatwa on a certain aspect of the law of inheritance: Yastaftoonaka, Qulillaahu Yufteekum Fil Kalalati – They seek your fatwa (Yastaftoonaka), tell them: Allah gives you the fatwa (Yufteekum) concerning Kalala.
All major translators of the Quran have rendered the word fatwa in this verse as “a decree” or “a ruling” including the renowned Deobandi scholar Ashraf Ali Thanwi whose Urdu commentary Bayaan ul Quran describes fatwa as a Hukm or command, thereby ruling out the possibility of it being an opinion; unless of course one treats God’s Fatwas as opinions devoid of authority.
Given these facts, one fails to understand on what hermeneutic or historical basis AIMPLB and Deoband insist on their definition of ‘Darul Qaza’ and ‘fatwa’. On the contrary, Islamic seminaries have always given the impression that their pronouncements were de facto orders with divine sanction. Of course, they do not have police powers to enforce their rulings, as argued by the AIMPLB. But then, police powers are not really required. The threat of divine retribution, excommunication or social boycott invoked by some clerics is more than enough to make someone abide by a fatwa.
A glaring example of this is Deoband’s dogmatic avouchment to the Supreme Court: “the persons who are God-fearing and believe that they are answerable to the Almighty and have to face the consequences of their doings/deeds, such are the persons, who submit to the fatwa.” The insinuation here is that Muslims who defy Fatwas in effect defy Allah and therefore, will face the consequences. If this is not an oblique attempt to enforce Fatwas, what is?
Indeed, the Supreme Court suspects this was how the Imrana fatwa was imposed in the Vishwa Lochan Madan case. Expressing shock at the manner in which “a declaratory decree for the dissolution of marriage and decree for perpetual injunction were passed” by Deoband against Imrana, the court exclaimed, “A country governed by law cannot fathom it.” The court thereupon warned that “no Darul Qazas or for that matter, anybody or 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.” However, such a fatwa shall not be “binding on anyone including the person, who had asked for it.”
Nevertheless, it may not be wrong to say that AIMPLB’s claims about the mediatory role of Sharia courts and non-binding nature of Fatwas are a reflection and recognition of the changing social realities in India. And this needs to be welcomed. For it marks, in the Indian context, a clear change in Islamic legal semantics where a fatwa is no more a judicial verdict and Darul Qaza is not a court that delivers justice to adversarial litigants but an alternative dispute resolution (ADR) mechanism to resolve disputes of consenting parties.
In which case, the AIMPLB may consider re-naming Darul Qaza as Darul Sulah (arbitration centre) and Darul Ifta, the department of fatwa, as Darul Ra’y (department of opinions). This would be the right thing to do because even arbitration centres established in accordance with The Arbitration and Conciliation Act, 1996 are not allowed to call themselves courts. They are referred to in the Act as ‘arbitral tribunals’ and their decisions are termed ‘arbitral awards’. Lok Adalat – roughly, people’s court – is perhaps the only institution that has Adalat in its name, but then it draws its legitimacy from The Legal Serv
The renaming of Darul Qazas would be in consonance with the stated positions of AIMPLB as made known to the Supreme Court. It would bring clarity to the true character of Muslim legal establishments in India and save ulama the trouble of explaining the incongruousness in the names and functions of some existing institutions.
