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SC Stays Uttarakhand HC Order Banning Fatwas [Read Petition]

Apoorva Mandhani
12 Oct 2018 7:36 AM GMT
SC Stays Uttarakhand HC Order Banning Fatwas [Read Petition]
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The Supreme Court on Friday stayed the Uttarakhand High Court order banning Fatwas and barring religious outfits/bodies and statutory panchayats/local panchayats/group of people in the state from issuing such diktats. The order was passed by a Bench comprising Justice MB Lokur and Justice Deepak Gupta on an appeal filed by leading Islamic organisation, Jamiat Ulama-I-Hind. Senior Advocate Raju Ramachandran appeared for the appellant.

The High Court had passed the order in August this year, after its attention was drawn to a news item about the fatwa being issued for externment of the family of a minor girl who had alleged that she was raped by her neighbour and had become pregnant.

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

The petition before the Apex Court now relies on the judgment in the case of Vishwa Lochan Madan v. Union Of India & Ors., wherein the Supreme Court had directed organisations to not issue fatwas unless asked for by the person involved or the person directly interested in the matter.

“However, in a case the person involved or the person directly interested or likely to be affected being incapacitated, by any person having some interest in the matter. Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested,” the Apex Court had ruled in Vishwa Lochan Madan case.

The petition further points out that the High Court relies on a news report, which used the word “farman” and not “fatwa”. Besides, it asserts that Darul Ifta (fatwa council) or Mufti is authorized to issue fatwas, submitting,

“…the only authorized and well qualified person is competent to issue fatwa. i.e. Darul Ifta (fatwa council) or Muftis are jurists qualified to give authoritative opinions as per Shariat law known as fatwas. Jurist capable of giving, upon request, an authoritative although nonbinding opinion (fatwa) on a point of Islamic law. These opinions are generally based on precedent and compiled in legal reference manuals. A candidate is conferred degree of Mufti after he successfully completed the comprehensive course in Islamic Jurisprudence which takes 8 to 10 years in completing the same.”

Finally, asserting 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, it raises the following questions of law:

  • Whether the impugned judgment is illegal and unsustainable to the extent that the issuance of fatwas by religious out fits/ bodies has been banned by the Hon’ble High Court being contrary to the law laid down by this Hon’ble Court in Vishwa Lochan Madan case (supra) on the issuance of ‘fatwa’ by religious institutions on religious issue?

  • Whether the Hon’ble High Court has erred in banning the issuing fatwas by the religious bodies after misconstruing the ‘farman’ (Diktat) issued by panchayat as ‘fatwa’, only on the basis of news item appeared in the daily edition of “Amar Ujala”, dated 30.08.2018?

  • Whether the Hon’ble High Court has erred in passing the impugned order in haste only on the basis of the news item on same day without summoning the concerned officials, persons or calling for the material and without testing the veracity of the news item where to word ‘fatwa’ is not used but ‘farman’ of so called panchayat?

Read the Petition Here

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