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Supreme Court stays Uattarkhand High court’s order of banning fatwa

Supreme Court stays Uattarkhand High court’s order of banning fatwa; some news channels falsely reported court ruling.  

By Abdul Bari Masoud

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New Delhi: In a major relief, the Supreme Court on Friday put stay on the verdict of Uttarakhand High Court which banned Fatwas and barring religious outfits/bodies and statutory Panchayats/local Panchayats/group of people in the state from issuing such diktats. The stay order was passed by a Bench of Justices Madan B Lokur and Deepak Gupta on an appeal filed against the High Court verdict by prominent social and religious outfit Jamiat Ulama-I-Hind (M) which expressed satisfaction over the ruling.  However, some news channels distorted the verdict stating that the Apex court has ruled ‘fatwa’ as “illegal and upheld” the High court order.

After taking suo motto cognizance of a news report on August this year about the “fatwa” being issued for internment of the family of a minor girl who had alleged that she was raped by her neighbour and had become pregnant, the Uttarakhand High Court passed the order.

The bench comprising Acting Chief Justice Rajiv Sharma and Justice Sharad Kumar Sharma had observed that “Fatwa is nothing but extra-constitutional adventurism… This “fatwa” is against the letter and spirit of the Constitution. The panchayat, instead of sympathizing with the rape victim, had the audacity to extern the family from the village.”

However, the bench did not differentiated between a Panchayat edict and fatwa (an opinion on a subject in the light of Qur’an and Hadith)  Furthermore,  a fatwa cannot be issued by Panchayat institution  but an expert in Islamic jurisprudence or  Darul-iftaa.

The court’s order has created concern and anxiety in the Muslim community as it might have disturbed hundreds of religious institutions and seminaries in the country which issue fatwa after a concerned person or institution seeks Islamic ruling on a particular issue or matter.

In view of the serious nature of the order, Jamiat Ulama-i-Hind had decided to challenge it in the Apex Court. On September, 4, 2018, Senior Advocate Raju Ramachandran filed the appeal on behalf the   appellant.

The petition asserted that the order will perpetrate “irreparable loss” on the community as Muftis will not be able to issue fatwas in cases where such fatwas are urgently required.

Arguing before the Apex court bench, Ramchandran said the Uttarakhand High Court verdict contradicts the Article 26 of the Constitution which gives rights to every section of the society to manage its own affairs in matters of religion. Furthermore, it is also  contrary to the law laid down by the Supreme Court itself in Vishwa Lochan Madan case (supra) on the issuance of ‘fatwa’ by religious institutions on religious issue. Moreover, by not following the law laid down by the Apex Court, the High Court has also violated the provisions of Article 141 of the Constitution of India. Apart from that, the Utrakhand High Court has erred in its verdict by treating the ‘farman of Panchayat’ as ‘fatwa’ only on the basis of news item appeared in the daily edition of Hindi Newspaper wherein a panchayat in a village issued ‘farman’ (Diktat) to extern the family of a victim of heinous crime. The Court misconstrued the word ‘farman’ (Diktat) issued by panchayat as ‘fatwa’ (opinion of expert given on a religious matter).The judges must have noticed that a fatwa is not given by Panchayat but it is given by only authorized and well qualified Mufti and its status is confined to mere advice or an opinion given in response to questions asked by an individual on a personal or religious matter.

Ramchandran was assisted by a battery of lawyers including Shakil Ahmad Syed, Niaz Ahmad Farooqui, Uzmi Jameel Husain, Tayyab Khan, Mujeebuddin Khan and Mohammad Parvez Dabas.

Meanwhile, JUH General Secretary, Maulana Mahmood Madani, who is the petitioner, welcomed the Apex Court ruling putting stay on the Uttrakhand high Court order which took into consideration the sensitive nature of the issue.

Drul-a-Iftas spread across the country do not issue fatwa on its own but  after asked them for and these fatwas are only for religious guidance and it should not be taken or considered as “edict” (farman), Maulana Madani said.

 

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