Vishwa Lochan Madan v. Union of India (2014) and the Uncertain Boundaries of Muslim Personal Law in India

This commentary explains crucial aspects of the 2014 Indian Supreme Court decision in Vishwa Lochan Madan v. Union of India, arguing that this highly-anticipated and long-delayed opinion left much unresolved about whether non-state Muslim legal actors have a role, along with state courts, in announcing and enforcing Muslim Personal Law in India.

In early 2014, the Supreme Court of India decided Vishwa Lochan Madan v. Union of India, a case filed in 2005 as a response to controversies concerning the private enforcement of Muslim Personal Law in India.[1]  In his 2005 petition, the plaintiff in this public interest litigation case, Mr. Vishwa Lochan Madan, had asked the Court to ban all non-state Muslim dispute resolution— including the giving of fatwās—in India.[2]  The named defendants in this case included not only the Union of India, but also the well-known All India Muslim Personal Law Board (AIMPLB).  The AIMPLB is a non-state organization which, amongst other activities, runs non-state Muslim courts (or, more specifically, dar ul qazas) in conjunction with the Imarat-e-Shariah, a historically significant organization headquartered in the Indian state of Bihar.[3]  The well-known Darul-Uloom Deoband was another significant defendant named in this litigation.

The Supreme Court’s 2014 opinion was written by (now retired) Supreme Court Justice Chandramauli Kumar Prasad, hailing from the state of Bihar.[4]  Joining Justice Prasad in hearing and deciding this case was Justice Pinaki Chandra Ghose, originally from the state of West Bengal.[5]

The Court’s opinion began somewhat abruptly, although in a way succinctly stating fundamental issues animating this case.  In this respect, the Court began its opinion by observing how the

All India Muslim Personal Law Board [is] comprise[d] of Ulemas.  Ulema is a body of Muslim scholars recognised as expert in Islamic sacred law and theology.  It is the assertion of the petitioner [Mr. Vishwa Lochan Madan] that All India Muslim Personal Law Board (hereinafter referred to as ‘the Board’) strives for the establishment of parallel judicial system in India as in [the AIMPLB’s] opinion it is extremely difficult for Muslim women to get justice in the prevalent judicial system.  Further, under the pressure of expensive and protracted litigation it has become very difficult for the downtrodden and weaker section of the society to get justice.  Therefore, to avail the laws of Shariat, according to the Board, establishment of Islamic judicial system has become necessary.[6]

The Court’s opening statement suggested that it viewed this case as one concerning parties disagreeing as to whether the dysfunctions of the Indian state’s judicial system—especially for Muslim women litigants—warranted the establishment of a (seemingly ominous) “parallel judicial system”[7] by non-state Muslim actors.  Moreover, the Court seemed to suggest here that this was a case raising questions as to whether the difficulties Muslim women (allegedly) face in the Indian state’s judicial system warranted the operation of a (parallel) non-state judicial system which may itself harm Muslim women, albeit differently.  In this respect, the Court bluntly noted on the first page of its opinion that “[w]hat perhaps prompted the petitioner [Mr. Vishwa Lochan Madan] to file this writ petition is the galore of obnoxious Fatwas including a Fatwa given by Dar-ul-Uloom of Deoband in relation to Imrana’s incident.”[8]  The Court then briefly recounted aspects of ‘Imrana’s case’—as this controversial set of events is often shorthanded—as well as similar episodes involving two other Muslim women in 2005.

Imrana’s case captivated and angered many people in India during the summer of 2005, shortly before the petition instigating the case of Vishwa Lochan Madan v. Union of India was filed in the Supreme Court.[9]  This episode involved a young Muslim woman’s alleged rape by her father-in-law, and a non-state Islamic legal body’s pronouncement (or fatwā) that, as a result, this woman should no longer be considered the wife of her husband.[10]  Moreover, this young woman, Imrana, was allegedly pressured by members of her local community into not bringing a criminal rape case against her father-in-law.  The way in which ‘Imrana’s case’ was, in fact, not made a case—at least in front of the Indian state’s judicial system—seemed to demonstrate the ease by which religious and other non-state entities could ‘subvert’ the Indian state’s criminal law processes, as well as the Indian state’s efforts to regulate family status.  That a woman could be both raped and divorced, without the state being able to intervene in either situation, was eminently frustrating for institutions and people who wanted to believe in the power of their ‘modern’ state against ‘premodern’ attitudes and practices.

After its opening remarks and observations then, the Court proceeded for several paragraphs to state in more detail the respective legal positions of the petitioner and the named defendants in this case.  This discussion largely drew from the various parties’ written submissions to the Court.  Interestingly, when delving into the defendants’ respective positions, the Court decided to state the Union of India’s position first, noting how

[t]he stand of the Union of India is that Fatwas are advisory in nature and no Muslim is bound to follow those.  Further, Dar-ul-Qaza does not administer criminal justice and it really functions as an arbitrator, mediator, negotiator or conciliator in matters pertaining to family dispute or any other dispute of a civil nature between the Muslims.  According to the Union of India, Dar-ul-Qaza can be perceived as an alternative dispute resolution mechanism, which strives to settle disputes outside the courts expeditiously in an amicable and inexpensive manner. . . . The Union of India has not denied that Fatwas as alleged by the petitioner were [] issued but its plea is that they were not issued by any of the Dar-ul-Qaza.  In any event, according to the Union of India, few bad examples may not justify abolition of system, which otherwise is found useful and effective.[11]

This position by the Union of India gets echoed then by the AIMPLB, with the Supreme Court describing the AIMPLB’s position as follows:

[The AIMPLB] does not deny the allegations that it had established Dar-ul-Qazas . . . and the practice of issuing Fatwas but asserts that Dar-ul-Qaza[s] . . . are not parallel judicial systems established in derogation of or in conflict with the recognised judicial system.  It is informal justice delivery system aimed to bring about amicable settlement of matrimonial disputes between the parties.  According to [the AIMPLB], Dar-ul-Qazas have no authority, means or force to get their Fatwas implemented and the writ petition is based on ignorance and/or misconception that they are parallel courts or judicial system.[12]

Ultimately, the Supreme Court’s holding in this case, as well as this holding’s rationalization, was equivocal and confusing—if one can even call it a ‘holding’ in the first instance.  This ambivalent holding is encapsulated by the Court’s vacillating factual description of non-state Muslim dispute resolution in India as essentially futile but also dangerous.  For example, at one point the Court wrote:

In fact, whatever may [have] be[en] the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme.  It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody.  The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law.  It can simply be ignored.”[13]

Conversely, the Court also noted how

as the Fatwa gets strength from the religion[,] it causes serious psychological impact on the person intending not to abide by that. . . . Imrana’s case is an eye-opener.  Though she became the victim of lust of her father-in-law, her marriage was declared unlawful and the innocent husband was restrained from keeping physical relationship with her.  In this way a declaratory decree for dissolution of marriage and decree for perpetual injunction were passed. . . . In this way, victim has been punished.  A country governed by rule of law cannot fathom it.[14]

The Court’s ambivalence about ‘the fatwā facts’ of this case then carried over to ambivalence in ‘the law,’ that is, the holding that the Court decided to announce in Vishwa Lochan Madan v. Union of India.  In this respect, the Court’s opinion’s final words vacillated between suggestion and command.  With regards its suggestion, the Court first declared that “one may not object to issuance of Fatwa on a religious issue or any other issue so long it does not infringe upon the rights of individuals guaranteed under law,”[15] while also admonishing “that a Fatwa has the potential of causing immense devastation, [so] we feel impelled to add a word of caution.  We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue Fatwa concerning an individual . . . unless asked for by the person involved or the person having direct interest in the matter.”[16]  Yet giving advice was also apparently not enough for the Court here.  As a result, the Court also commanded that “no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it.”[17]  Indeed, to do so “shall be in violation of basic human rights.”[18]

Ultimately, after taking nearly nine years to address the questions raised by Mr. Vishwa Lochan Madan’s controversial petition, the Supreme Court left much unclear and undecided in this opinion.   For example, in any non-state dar ul qaza case that results in a judgment, the losing party is likely to be unhappy with the decision, yet can also be seen to have simultaneously actively participated in the adjudication.  Whether that losing party now has some cause of action (adverse to the dar ul qaza) in India’s state courts is left unclear by this decision.  Somewhat similarly, in not explicitly disagreeing[19] with depictions of dar ul qaza proceedings and fatwā-giving as akin to Alternative Dispute Resolution (ADR)[20] or as an “informal justice delivery system aimed to bring about amicable settlement of matrimonial disputes between the parties,”[21] the Supreme Court’s decision also raised questions about what precisely differentiates non-state articulations of Muslim Personal Law from other forms of ADR in India, or even the informal operations of lok adalats [22]and Family Courts.[23] To be sure then, Vishwa Lochan Madan v. Union of India was just the first of what promises to be a continuing set of legal controversies concerning the institutional locus of Muslim Personal Law in India.

 

[1]  See generally Vishwa Lochan Madan v. Union of India, A.I.R. 2014 S.C. 2957.  I use the term ‘Muslim Personal Law’ here recognizing that there are disputes concerning the Islamic bona fides of this body of law when enforced by the Indian state and, additionally, whether the non-state articulation of Islamic law should be referred to instead as either shari‘a or fiqh.

[2]  For more on this petition, and the responses it elicited from various named defendants, see Jeffrey A. Redding, Secularism, The Rule of Law, and ‘Shari‘a Courts’:  An Ethnographic Examination of a Constitutional Controversy, 57 St. Louis U. L.J. 339 (2013).

[3]  See generally Papiya Ghosh, Muttahidah qaumiyat in aqalliat Bihar:  The Imarat i Shariah 1921-1947, 34 Indian Econ. & Soc. Hist. Rev. 1 (1997).

[4]  See http://supremecourtofindia.nic.in/judges/bio/149_ckprasad.htm.

[5]  See http://supremecourtofindia.nic.in/judges/sjud/pcghose.htm.

[6]  Vishwa Lochan Madan v. Union of India at 2958.

[7]  See text accompanying supra note 6.

[8]  Id.

[9]  The discussion in this paragraph is drawn from Redding, supra note 2, at 354-55.

[10]  According to an English translation of the fatwa in question, provided in the counter-affidavit of the defendant Deoband Dar ul-Uloom, this is because “[t]he woman with whom [a] father has copulated legally or had sexual intercourse illegally . . . the son can’t keep physical relationship with her. The Holy Quran says: ‘Marry not the woman whom your father copulated’.” Respondent No. 10 Counter-Aff. Annexure, Vishwa Lochan Madan v. Union of India, Writ Petition (Civil) No. 386/2005 (India) (on file with author).

[11]  Vishwa Lochan Madan v. Union of India, A.I.R. 2014 S.C. 2957, 2959.

[12]  Id.

[13]  Id. at 2960.

[14]  Id. at 2960-61.

[15]  Id. at 2961.

[16]  Id. (emphasis added).

[17]  Id.

[18]  Id.

[19]  The Court noted at one point in its opinion that “[t]he object of establishment of such a [non-state, Muslim] court may be laudable.” Id. at 2960.

[20]  See discussion accompanying supra note 11.

[21]  See discussion accompanying supra note 12.

[22]  On this point, see generally Jeffrey A. Redding, Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems, 6 J. Islamic St. Prac. Int’l L. 1 (2010).

[23]  On this point, see generally Srimati Basu, The Trouble with Marriage:  Feminists Confront Law and Violence in India 86-117 (2015).