Maulana Wahiduddin Khan I Speaking Tree Website, TOI I July 13, 2014
The Supreme Court issued a ruling on July 7, 2014, that has triggered a new discussion regarding the Shariah and its implications.
The gist of this ruling is that fatwas issued by Darul Ifta or Darul Qaza have no legal sanction and no place in India’s constitutional scheme.
I think this ruling is right. It does not go against the Shariah. If anything, it goes against those who are running institutions in the name of the Shariah.
Shariah, in fact, is a non-political concept.This means that anyone who wants to follow the Islamic way of life in his personal affairs must refer to the Shariah. It is only a matter of personal following; no institution or state is involved in this.
Personal Behaviour
In Chapter Al-Maidah of the Quran, there is a verse regarding this issue. It says: To every one of you, We have ordained a law and a way. (5:48).
In this verse, the words shir’a and minhaj are used for personal behaviour. They have nothing to do with politics or the state. This verse declares that the ummah of all the prophets were given a shariah. And it is established by the Quran that no previous ummah, except the ummah muhammadiyyah (Muslim community) was able to establish a state. Therefore, we will have to take the word ‘Shariah’ in the sense that can be commonly applied to all the ummahs. This aspect of prophetic history is enough to believe that the word shir’a or shariah is used in the sense of personal behaviour. Because, the ummah of all the prophets were common in the matter of personal behaviour and not in political affairs. It was everyone’s need to know the religious teaching regarding his personal life. But as far as political teachings are concerned, they were not required because no government was established by these prophets.
Shir’a or shariah literally means ‘method’. It is not equivalent to law or political injunction. Even when there is only one believer, he needs to follow the Shariah in his private life, way of worship, ethical behaviour and personal dealings with other fellowmen. This is Shariah. And, in this sense, the word Shariah has no political connotation at all.
The word ‘fatwa’ does not in any way mean judicial verdict, it is simply a personal opinion. If a believer wants to know about his personal behaviour, for example, he wants to know about his way of worship or his dress, then he may visit an Islamic scholar and put this personal question to him. And, that scholar may give him his opinion according to his knowledge of Islam. That is fatwa.
Establishing Darul Qaza or Darul Ifta is the institutionalisation of fatwa, which did not exist during the age of the Sahaba (Companions of the Prophet) and the Tabi’een (Companions of the Companions). It was an innovation of the later period of Islamic history.
Darul Qaza and Darul Ifta are not illegal, but a condition attaches to them. If the national tradition and the constitutional system of a country allow the establishment of such institutions, then there is no harm in it. Otherwise, establishing such institutions must be avoided.
The word ‘Islam’ has a connotation of peace. So, ‘Muslim’ means a peaceful person. All Islamic teachings are based on the concept of peace. Muslims are asked to live as law-abiding members of every society, whether they are living as a minority community or a majority community, and whether they enjoy political power or not. In every situation, they must keep the peace and avoid all kinds of confrontation.
There is a Hadith which says, “By God,that person will never enter Paradise, who creates a nuisance for his neighbours” (Sahih Muslim). A nuisance is not only that which you think is a nuisance, but also anything which your neighbour considers to be troublesome. So, Muslims must adopt that kind of behaviour which is acceptable to their neighbours. Anything that is not acceptable to their neighbours is a nuisance. In this matter, the neighbour’s opinion must prevail and not that of Muslims.
There are different kinds of nuisance. It is also a nuisance that the Muslim community insists on implementing its religious law in India, although the majority of Indian people and the system of India take it to be an unwanted initiative. Thus, Muslims must refrain from such behaviour as it creates a nuisance for their neighbours.