India’s Supreme Court has ruled Sharia courts have no legal authority and fatwas affecting fundamental rights of the country's Muslims are illegal. But the court did not ban Sharia courts.
The Supreme Court’s ruling came in response to a petitioner who wanted Sharia courts disbanded. In 2005, he had cited a case in which a Sharia court annulled a Muslim woman’s marriage and ordered her to live with her father-in-law who had allegedly raped her.
The top court ruled fatwas issued by Muslim clerics could not curb an individual’s fundamental rights. The judgment said that “no religion, including Islam, encourages people to punish innocents through decrees not sanctioned by law.” It said Muslims had no obligation to abide by such directives.
But the court rejected the petitioner’s demand to disband Sharia courts, ruling if a person “still wants to approach them, it is their will." It said these courts could rule when individuals submit voluntarily to them.
Members of the All India Muslim Personal Law Board defended Sharia courts and said the Supreme Court had simply “streamlined” the procedure for issuing fatwas.
Zafaryab Jilani is a member of the Board.
“We have never said that the Qazi (Sharia court judge) or order of a Qazi is binding on any party and he cannot approach a court of law,” said Jilani.
India’s 150 million Muslims make up about 13 percent of the population. The Indian constitution allows them to follow their personal laws on such matters as marriage, divorce and property, and Sharia courts often adjudicate disputes relating to such issues. The courts are mostly located in districts with a large Muslim population.
Kamal Farooqui is a top Muslim leader and member of the All India Muslim Personal Law Board. According to him, Sharia courts have never tried to block access to other courts.
“If two Muslims are ready to go in for arbitration and ask for the judgment, for the reconciliation or for their opinion, there is nothing wrong in it. Legally it is binding. But if both the parties are not agreeing, definitely it will not be binding, ultimately the law of the land will prevail,” said Farooqui.
The judgment is likely to revive a decades-old debate in India on what is called the uniform civil code, a common law, to govern all religions and communities in the country.
The ruling Bharatiya Janata Party has long supported a common law for matters such as marriage, property and divorce, saying it is necessary to bring in gender equality. But Muslims strongly oppose such efforts, arguing that such a law would be contrary to their religion.
