New semantics of sharia

The Supreme Court >judgment on Darul Qazas deserves to be welcomed for the juridical finesse with which it distinguished between the right of an institution to exist and the legality of its pronouncements. It ruled that neither the existence of Darul Qazas nor the practice of issuing fatwas could be declared illegal as they were part of an “informal justice delivery system” that seeks to amicably settle disputes. But the judges 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 by any person or religious body, do not amount to adjudication of a 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.

The court’s decision to legitimise Darul Qazas and fatwas would appear to be based on its acceptance in good faith of the pleadings of the All India Muslim Personal Law Board (AIMPLB) and Darul uloom Deoband, that Darul Qazas were akin to arbitration centres, and fatwas non-binding opinions. Some Muslim lawyers too have expressed similar opinions. Do these assertions stand the test of theological scrutiny? In the context of law, the word qaza denotes a final decision, a binding decree. The Quranic phrase wa qaza Rabbuka alla ta’budu illa iyyahu wabil waalidaini ihsaanan (17:23), translates as “And your Sustainer has firmly decreed that you obey none but Him, and show utmost kindness to parents.” This makes Darul Qaza is a House of decisions (that is, a court), and a qazi, the pronouncer of decisions (a judge). Through Muslim history, Sharia courts adjudicated both civil and criminal cases, and had the powers to pass ex parte orders against parties who failed to appear before them.

The word fatwa too has almost the same meaning as qaza. 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.” In short, a fatwa is a reply that notifies a legal order. This is elucidated by 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 .

Many translators of the Quran have rendered the word fatwa in this verse as “a decree” or “a ruling”, including Deobandi scholar Ashraf Ali Thanwi whose commentary Bayaanul Quran describes fatwa as a

hukm or command, thus ruling out the possibility of it being an opinion — unless one treats God’s fatwa as just an opinion.

Holding out a threat Therefore, it is unclear on what hermeneutic basis the AIMPLB and Deoband insist on their definition of Darul Qaza and fatwa. Islamic seminaries give the impression that their pronouncements are de facto orders with divine sanction. Of course, they do not have policing powers to enforce their rulings, as the AIMPLB argued. But the threat of divine retribution, excommunication or social boycott invoked by some clerics is more than enough to make even a non-seeker of the fatwa abide by it.

An example is Deoband’s avouchment to the Supreme Court that God-fearing Muslims being answerable to God obey fatwas. Others may defy them. The insinuation here is that Muslims who defy fatwas in effect defy God and therefore, will face the consequences. Does this not amount to an oblique attempt to enforce fatwas?

Indeed, the Supreme Court suspects this was how the Imrana fatwa was imposed. 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 Ms. Imrana, the court said: “A country governed by law cannot fathom it.”

Nevertheless, claims about the mediatory role of Sharia courts and non-binding nature of fatwas could be a reflection and recognition of changing social realities in India that need to be welcomed. For it marks, in the Indian context, a 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 ADR mechanism to resolve disputes of consenting parties. In which case, the ulama 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 in consonance with the stated positions of the AIMPLB and the Darul uloom Deoband as made known to the Supreme Court. It would also bring clarity to the true character of Muslim legal establishments in India and save the ulama the trouble of explaining the incongruousness in the names and functions of some institutions.

All said and done, a fatwa will be considered an “opinion” only when believing Muslims are free to hold on to their religious views no matter how “deviant”, and reject misogynist fatwas that justify instant triple talaq , child marriage or gender bias, without their Muslim-ness being questioned.

(The author is secretary general of the Islamic Forum for the Promotion of Moderate Thought. faizz@rocketmail.com)