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Of fatwas and Shariat

Tuesday, 08 July 2014 | Pioneer | in Edit
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Supreme Court does well to lay down the rules

The Supreme Court's decision that Shariat courts cannot issue verdicts which impinge upon fundamental rights of a citizen and that fatwas which punish “innocents” have no legal basis should set to rest a highly contentious subject. Shariat courts and religious edicts have begun to unfortunately function as a parallel legal system. The apex court's Monday ruling is the result of a decade-long crusade by Delhi-based advocate Vishwa Lochan Madan. Ideally, the ruling should spur efforts to have a Uniform Civil Code in place. But that will probably be years in the coming. For now, the ruling marks a victory for all those who believe in the cores principles of jurisprudence that govern this country's legal system and their equal application to all citizens irrespective of religious, race, caste and gender considerations. It will be of particular relief to Muslim women, especially those from economically weaker backgrounds, who have suffered the most under these Shariat courts which have routinely pronounced judgements that violate their fundamental rights.

It is no coincidence that the year Mr Madan filed a Public Interest Litigation seeking that Shariat courts and fatwas be declared unconstitutional, 28-year-old Imrana of Muzzaffarnagar, who had been raped by her father-in-law, was held guilty of adultery by her local qazi. The Shariat court also prohibited her from living with her husband — and the ‘ruling' was even endorsed by the self-appointed guardian of all secular values, Mr Mulayam Singh Yadav, who was then Chief Minister of Uttar Pradesh. Eventually, the ‘regular’ courts had to step in and convict Imrana's rapist. Pseudo-secularists who argue that this was an isolated case and that miscarriage of justice happens even in ‘regular' courts, must be reminded that Jyotsna Ara of Assam, who too was raped by her father-in-law, was faced with the same set of medieval laws. In the case of Assobi of Gurgaon, a fatwa prohibited her from reporting the matter to the police. And then there are the innumerable cases of divorce, dowry harassment and child custody where Muslim women victims are discriminated against.

Viewed together, these cases effectively demolish the argument that Shariat courts complement the functioning of the secular judiciary. Religious scholars insist that the Shariat courts are more like counselling centres. Interestingly, this view was also supported by the Supreme Court as recently as in November 2013. In the case of fatwas, it has been argued that the decree is just the opinion of one cleric. Legally, it has never been binding and those dissatisfied with these mechanisms have always had the option of approaching the main court. In reality, of course, the situation is different as the plight of scores of penniless Muslim women divorced via SMS on the one hand and the case of Salman Rushdie on the other, stand proof. Yet, in spite of all this, successive Governments at the Centre have supported Shariat courts and fatwas. In fact, when the Supreme Court had sought the Government's opinion on the matter in 2006, the UPA regime had said that both were protected under the Fundamental Right to Religion guaranteed under Articles 25, 26 and 29 of the Constitution.

 
 
 
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