Sunday, March 9, 2014

Indian court: Fatwa cannot be forced upon people

By Habhajan Singh

The Indian judiciary had declared that fatwa issues by Muslim clerics cannot be forced upon people and the state has to protect persons who are harassed for not following such dictates, a move that throws another spanner into attempts to introduce Islamic finance in the country.

On Feb 25, India’s Supreme Court made the stand, which is similar in spirit in other Muslim nations, including Malaysia, while expressing reservation in interfering with Shariah courts.

Holding that it is a matter of choice for the people to accept fatwa or not, the Apex Court said running of institutions like Darul Qaza and Darul-Iftaa is a religious issue and the courts should interfere only when someone’s rights are violated by their decision, according to a report by the Press Trust ofIndia.

 [See also Times of India report here]

“We can protect people who are subjected to suffering due to this. When a pujari gives a date of Dushera, he cannot force someone to celebrate the festival on that day. If somebody forces them on you, then we can protect you,” a bench, headed by Justice CK Prasad, said after the petitioner pleaded that fatwa issued by clerics is unconstitutional, the report added.

Fatwa is a key component in Islamic finance. Islamic banks and takaful operators are required to operate in a manner that is compliant with Shariah.

Their products are required to be fashioned in consonance with Islamic laws. This badge of approval comes in the form of a fatwa from Shariah scholars who sit on the Shariah advisory boards of the individual islamic financial institutions (IFIs), including Islamic banks and takaful operators. However, IFIs are non-exsitent in India, a nation with a large Islamic minority, put at 138 million, or 13.4%, of its 1.03 billion population as per its 2011 census.

When asked to comment on the fatwa ruling, International Shari’ah Research Academyfor Islamic Finance (ISRA) ED Dr Mohamad Akram Laldin said the same applied in many Muslim countries.

“A fatwa is not binding until it becomes part of the law of the state or country. It is the opinion of the scholars and it cannot be enforced until it becomes law. So it is up to the individual to practice the fatwas,” he said in an email response to The Malaysian Reserve.

In Islamic finance, he said usually there are enabling provisions such as guidelines which say that the institutions are bound to implement the Shariah views of the Shariah board. “In case the institutions refuse there will be huge reputational risk to the institutions. The credibility of the institutions will be at stake,” he said.

ISRA was established in 2008 by Bank Negara Malaysia, the nation’s central bank which regulates the Islamic banking and takaful activities. The academy is charged to promote applied research in the area of Shariah and Islamic finance and also act as a repository of knowledge for Shariah views or fatwas.

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