5.12.5. Recent Supreme Court judgments

1. SC held that fatwas issued by Muslim shariat courts (Dar-ul-Qazas) do not have legal sanctity and cannot be enforced if they infringed on the fundamental rights of an individual. The Bench said fatwas on rights, status and obligation of individual Muslims, in its opinion, would not be permissible unless asked for by the person concerned or, in cases where the person is unable to do it, by the person interested.

Personal laws ought to be administered by the regular law courts and cannot be enforced in derogation of fundamental rights by religious courts that lack legal sanctity.

The judgment is a welcome step towards gradual rationalization and acclimatization of our custom- driven and extra-legal judicial system (which often works in contradiction to our established and widely regarded constitutional values) to the contemporary realities of a modern democratic society — in which there is no place for any kind of gender-based discrimination and dehumanising arbitrariness. The state can come to the rescue of an individual if he or she is being victimised in terms of a violation of fundamental rights in the name of Personal laws.

The Supreme Court has preserved the religious character of these Sharia courts, noting that they do not constitute a parallel judiciary, but an “informal justice delivery system with the objective of bringing about amicable settlement between parties.” It is important that the Supreme Court’s intervention, at the instance of a petitioner who wanted Sharia courts to be banned, is understood in the correct perspective.

2. In August 2017, the Supreme Court of India declared the practice of Triple Talaq or ‘talaq-e- biddat’ as unconstitutional. Its judgment said, “We direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason for an independent India, to lag behind. Measures have been adopted for other religious denominations even in India, but not for the Muslims.”

The judgment outlines true meaning and spirit of the Quran on the anvil of individualism, the rule of law and human rights enunciated in the constitution. This judgment is not against any institution, organisation nor it is against the religion of Islam. It is a judgment in favour of justice based on women’s rights as human rights.