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FATWA - An Instrument of Ulema Politics in India?

Paper No. 990                                           03/05/2004

by R.Upadhyay

Encyclopaedia of Islam has defined Fatwa as a legal advice pertaining to Islamic way of life. It is however, not a verdict of the Kazi (judge) of Islamic court, which is a binding on the followers of Islam. Fatawa (Plural of fatwa) are regarded as third source of Islamic law in Muslim world, the Quran and Hadith being the first and second (An Introduction to Islam by David Waines, 1995). A person authorised to issue fatwa is called Mufti, who is supposed to be a person of academic brilliance in the matter of Islamic scriptures. Common Muslims view mufti as a person with encyclopedic knowledge. Those who seek legal opinion in Islamic matters are called Mustafti. In Islamic court Mufti works as counselor of the Qazi (Judge).

The need of fatwa arises, when there is inter-religious dispute or confusion in intra-Islamic issues. Since fatwa is a legal opinion it is not mandatory and accordingly it is supposed to be realistic as far as possible. For example when Islamic way of animal slaughtering (Halal) considered to be more painful -was banned by the Norway and Swedish Government - the Muslim clergy issued a fatwa to make the animal unconscious before slaughtering.

Despite the conceptual clarity of fatwa, the Muslim orthodoxy used it as a tool to establish their supremacy in Muslim society.] Literally, fatawa may be only legal opinions on religious way of Islamic life but for all practical purposes they are Shariat (Islamic law) in action. "Fatawa are commands and degrees not just on matters in the public domain, they aim to regulate the most private of private domains too" The World of Fatawas by Arun Shourie, 1995, page95).

The Muslim invaders and rulers in India used fatawa to justify their atrocities on Hindus in the name of Islam and to establish their kingship and authority in the conquered territories. They felt the need for fatwa for the hegemony of the Islamic laws over the law and customs of the land. Thus, with the Muslim rule in India fatawa became an effective instrument for establishing the authority of Islamic rulers and for treatment of the Hindu subjects who were in the majority.

The priestly class of Muslims known as Ulema, Mawlana, Imam etc. who had acquired enormous power during Muslim rule in India particularly during the period of Mogul Emperor Aurangzeb (1657-1707) justified all the actions of the rulers whether right or wrong with the help of fatawa. Aurangzeb grabbed the throne of Delhi and executed his brother Dara Shikoh,(1659)who was the crown prince. Ulema of his court, justified this barbarous action by issuing a fatwa.

With a view to consolidate his kingship and theocratic government Aurangzeb appointed a group of Ulema, for documenting the juristic rulings known as "fatawa-al-Alamgirriyya or Fatawa-i-Hindia. This document also included prescriptions for treatment of the Hindus of three categories: hostile, rebellious and protected (An Intellectual History of Islam in India by Aziz Ahmad, 1969, Page2). Double custom duties on Hindus, execution of Guru Teg Bahadur, re-imposition of Jezya on Hindus etc were carried out under the authority of fatawa. This created panic among the Hindu subjects, who under the leadership of Shivaji reacted against the atrocious suppression of their cultural past and fought against the hegemony of Perso-Arab tradition in the subcontinent. The historians under the influence of the contemptuous thesis of West on the continuity of cultural identity of Bharat however, described that reaction of Hindus as a movement for revival of Hinduism and criticised it on the plea that it was against the tolerant tradition of this land.

Indian culture had a unique feature. The people of this subcontinent remained conscious throughout the period of their social evolution in preserving their antiquity and allowed the amalgamation of different cultures that entered here with the foreign invaders. However, the Muslim rulers patronised the Ulema to use the armory of fatawa with a sole objective to ensure that their Perso-Arab antiquity known as Islamic culture is not diluted in the cauldron of Indian antiquity. The Ulema even restrained the converted Muslims from maintaining any conscious or unconscious link with the indigenous tradition of this land through fatawa.

With the receding influence of the priestly class of Muslims following decline of Muslim power in India the contemporary Islamic theologians of this country became restless. Shah Waliullah and his son Shah Abdul Aziz played a major role to provoke the Muslims on communal line for restoration of the lost glory of Islamic power in the country. Sayyid Ahmad of Rai Baraili (1786-1831) emerged as a militant Islamist, who launched jehad against the Sikh ruler with a view to restore Muslim rule in India. He was inspired by Shah Abdul Aziz who "issued a fatwa that India had become Dar-al-harb(enemy territory" ( Islam Outside the Arab World - Edited by David Westerlund and Ingvar Savanberg, 1999, page 212).

Mawlana Muhammad Qasim Nanautawi (1833-77), and Mawlana Rashid Ahmad Gangohi (1828-1905) who acted as commander and Qadi (Judge) of the fighting force respectively in Shamali rebellion in 1857 against the British (Deoband School and Demand for Pakistan by Faruqi, page 21)- set up an Arabic madrasa at Deoband on May 30,1866. This madrasa, was raised to the status of 'Darul - Ulum (Abode of Islamic learning) in 1867, which gradually emerged as a centre of higher Islamic learning. Over the years this radical Islamic institution spread a net work of madrasas under its administrative and ideological guidance all over India and it is now the biggest Islamic institution in the country. The objective of the seminary was to produce Ulema and to restore the political glory of Islam and prepare the Muslim masses to join them in their struggle for power. Gradually it became a major factory in the country to produce Ulema and an armory of fatawa for them.

During the freedom movement the Muslim elite were more interested to have a major share of political power in a state of non-Islamic environment where Muslims form only a smaller part of total population. They had no interest either in Islamic spiritualism or in the development of illiterate and poor Muslim masses. They used fatawa through Ulema class to meet their political goal. Fatawa were issued as a religious duty of Muslims to support Pakistan movement, (Islam Outside the Arab World - Edited by David Westerlund and Ingvar Savanberg, 1999, Page 224).

Islamic seminaries and scholars make constant efforts to ensure that the Muslim society follows the path of Shariat in its day to day life and behaviour for which they compile volumes and volumes of Fatawa. These volumes of fatawa are like All India Reporter of Supreme Court. Some of the prominent collections of fatawa are as under:

Fatawa-i-Rizvia (12 volumes being used by Barelavi sect of Sunni Muslims)
Mufti Kifayatullah ke Fatawi ( 9 volumes. Mufti Kifayatullah was the founder President of Jamiat-Ulama -e-Hind)
Fatawa -i-Ulama-Dar al-Ulum, Deoband ( 12 volumes)
Fatawa-i-Abl-i-Hadis (4 volumes)
Fatawa-i-Rahimiyyab (3 volumes)

Fatawa are viewed as Sharia in action and they are all rooted in the Islamic scriptures like Quran and Hadith. But in absence of any supreme authority in Islam except the Prophet whose fatwa cannot be challenged, it may not be practicable for all the Muslims to abide by them all the time and to live a life following all dictates of fatawa. Mufti Kifayatullah declared the shaving of beard as haram (Un-Islamic). Similar fatwa was declared in Fatawa-I-Rahimiyyah. But all the Muslims do not respond to this fatwa. Sometime fatwa even bends to the strictness of political authority particularly in non-Islamic polity. For example Norway and Swedish government banned 'halal' (Islamic way of slaughtering) of animals, and the Islamic jurists issued fatwa for slaughtering the animals after electric shock (Islam Outside the Arab World - Edited by David Westerlund and Ingvar Savanberg, 1999, Page 395).

Since the original texts of Islamic scriptures are in Arabic language and do not have similar translation, there are lot of scope for subjective interpretation by the Islamic jurists with radical political attitude. The voluminous fatawa referred to are therefore, basically the man made interpretations of Islamic scriptures which sometime create confusion among the followers of these "holy decrees".

Sectarian divisions in Muslim society like Shia, Sunni, Ismailis, Barelwi and Deobandi are the outcome of variations interpretations. The collections of fatawa compiled by prominent Ulema are regarded as All India Reporter of Supreme Court but their applications are not binding on all the Muslims due to such sectarian division. Differences over fatawa often turn into factional war within Muslim society. During factional fight they abuse each other as Kafir.  They however, forget to explain as to how all the Muslims will face the trial on the day of judgment when their fatawa accuse each other as Kafirs.

Roughly 85 to 90 percent of Indian Muslims are Sunnis. Of them two third are known to be the followers of Barelavi school of Islam and the rest is divided in other Sunni schools like Deobandi and Ahle Hadith. Fatawa of Ahmad Riza Khan (1856-1921) founder of Barelavi school of Sunnism are compiled in Fatawa-i-Rizvia. It is the most important collections of fatawa for Brelavis whereas Mufti Kifayatullah ke Fatawi (the collections of the fatawa of Mufti Kifayatullah,) is the prominent source of fatawa for the followers of Deobandis.

Ahmad Riza, in his fatwa denounced the Deobandis as Kafirs and condemned them for accepting the leadership of Mahatma Gandhi during freedom movement. He denounced the Muslims joining hands with Kafirs (non-believers) even for attaining Islamic objective like movement for restoration of Caliphate. His fatwa warned the Muslims neither to attend to the ailing non-Muslims nor to participate in their funerals. His aversion with Deobandis is reflected in Fatwa-i-Rizvia, which "declares Deobandis as Kafirs and he who doubts that they are Kafirs is also Kafir" (The World of Fatawas by Arun Shourie, 1995, Page 646). It also declares that the books and belief of Deobandis are worse than those of Hindus. His (Riza) fatwa denounced those Muslims as Kafirs, who joined hands with non-believers even for Islamic objectives (The World Of Fatawas by Arun Shourie, 1995).

Some of the fatawa asked the Muslims not to take food cooked by the Kafirs. Fatwa-i-Rizvia declares that " it is a duty to save ourselves from that in the college and in education which is against the Sharia (The World of Ftawas by Arun Shourie, 1995, Page 502). Responding to this fatwa the Muslims of Calcutta took out a procession in 1835 against setting up of first medical college in India by the British. This fatwa left the Muslims far behind by the non-Muslims, who sought admission in that college (Ibid.502).  Fatwa asking the Muslims to "save themselves from the evil of modern education" are therefore, the real problem behind the backwardness of the community. Fatawa against modern education particularly in regard to Muslim women does not convince rational thinking people. But a largest majority of Muslim girls are not sent to schools on the plea of fatwa declared in Fatawa-i-Rahmiyyah. It says, "it is not permissible to send girls to schools and colleges for acquiring higher education" (The World of Fatawas by Arun Shourie, 1995, page 512). It further says that the parents, who send their daughters to the colleges are enemies of their daughters." (Ibid. page 515).

Fatawa not befitting to scientific and rational thinking blocked the growth of intellectualism and fomented negative ideas among the poor and backward Muslims. With the help of fatawa the Ulema created a mindset among the Muslim prolitariat that anything howsoever logical and rational it may be if not approved by Islamic scriptures was betrayal of the faith.

Deobandi opponents of Ahmad Riza on the other hand condemned celebrating urs (Anniversary of Islamic saints) on the plea that it is polytheism. Deobandi Muslims are against the saint worship of Sufi Pirs on the plea that it is un-Islamic whereas Baleravi Muslims give great importance to the grave of Pirs and celebrate urs (anniversary) with much fan fare. Deobandis argue that there is no saint in Islam except the Prophet. Mufti Kifayatullah issued a fatwa that offerings at grave are Haram (Un-Islamic). He denounced the observance of urs and disputed the fatwa of Ahmad Riza Khan. Deobandis are adamant  is purifying Islam from any influence of Hindu tradition. Of late Darul Uloom of Deoband issued a fatwa in support of ban on cow slaughtering. The Barelavi Muslims who constitute a larger majority in the community may not pay any heed to this fatwa.

The fatwa of Ahmad Riza Khan against joining hands with Kafirs even in movement for achieving Islamic objective like restoration of Caliphate or the fatwa of Mufti Kifayatullah, that shaving beard was un-Islamic created direct or indirect majority-phobia in the mind of Muslim masses during freedom movement.

Separate national mindset of Muslims created by fatawa makers during freedom movement culminated in partition of united India and formation of Pakistan. The Muslim thinkers and Ulema, who stayed back in India however, never bothered to interpret Islam by issuing assertive and effective fatawa to counter the past-masters in their community and bring out the Muslim masses out of the rut of Islamic orthodoxy and create national emotion and passion among them.

In post-partition India the Muslim orthodoxy was haunted with imaginary apprehension of the dilution of the Turko-Arab culture of Indian Islam. They were mentally not reconciled to restrict the use of fatawa to resolve the religious dispute and to clear any confusion in respect of Muslim personal law only. Instead they chose to compile uncalled for collection of fatawa in volumes and volumes and increased the mental load of the community for their journey in a" Kafir dominated" secular Indian society. Such negative attitude of the Islamic fundamentalists kept the community completely separated from the Hindu majority and thereby frustrated even the genuine attempts of the saner elements to bridge the inter-community gap of mistrust. Fatawa therefore acted as leavened agent and generated arrogance and malice. Like any other God commandment Islam too may not permit such arrogance.Fatawa remained their weapons to keep the ignorant and poor Muslim masses completely under their grip. Islamic seminaries like Darul Uloom of Deoband and Nadwa expanded their network of Ulema to ensure the grip of Muslim orthodoxy over the Muslim masses with the power of the fatawa.

The local Imams have a vast scope to exercise their influence over Muslim society as they are supposed to regulate even their most private behaviour. Fatawa are therefore, being misused by Muslim orthodoxy for their goal of a separate identify. Zeroing on the focus of fatawa to the supremacy of Muslims, the Uema in India kept the Muslims away from national mainstream.

A vast majority of uneducated Muslims totally depend upon the local Imams for their day to day worldly problems and accept the fatwa as an Islamic verdict and not simply as advice. Fatawa provide a means by which Muslim community can deal with new issues as and when they arise (Muslim Friends: Their Faith and Feeling by Roland E. Miller, 2000, page 279-80).

In India fear of fatwa is very deep in Muslim psyche. Even the liberal Muslims do not dare to raise their voice loudly against it even if it is not congenial to the contemporary environment. They maintained stony silence over the fatwa of Ayatullah Khomeinei of Iran for killing Salman Rasdie, a writer. They hardly opened their mouth against Imam of Tipu Sultan mosque of Calcutta, who issued a fatwa for garlanding Taslima Nasreen, a Bangla Deshi writer with shoes for her criticism of Muslim orthodoxy. An Ulama of Agra issued fatwa against singing of Vande Mataram song in school. In 1998 an Imam in a village of West Bengal issued a fatwa which declared the watching of TV un-Islamic. These fatawa may not have any reference to the actual fundamentals of Islam but silence of Muslim intellectuals over them encourages the Muslim orthodoxy to maintain its grip over the ignorant and poor Muslims.

The so called progressive states like West Bengal, Kerala and Tripura administered by the Leftists and Uttar Pradesh and Bihar by the 'secularists', prefer to allow the average Muslims to remain under the fear of the Muslim orthodoxy. The average Muslims are not free to send their daughters for modern education because of the fear of fatwa. Scared of the social humiliation at the hands of radical Islamists they hardly dare to defy the local Imams, whose Islamic ideology is an instrument of power with the unquestionable authority of fatwa. Islamic terrorists often issue fatwa prescribing dress code for Muslim women and strict adherence to it. The silence of Muslim intellectuals against such fatawa strengthens the power of the Muslim orthodoxy in exercising inordinate influence over the ghettoised Muslim society in India.

The contents of a sizeable number of fatawa form the part of the subjective ideology of the Ulema, having hardly any spiritual connotation.

In India Fatwa issued by Islamic clerics on public matters has often been a debatable issue. Whether it is a question of women's right, casting of votes by Muslims in elections or court verdict against Muslims, fatwa creates controversy in the country.  M.Yusuf Khan in his article - 'Fatwa misunderstood and misused' (Pioneer dated March 13, 2004) has questioned the authority of Muslim clerics for issuing uncalled for fatawa. But it has become customary during election time for the political parties to use this religious weapon through the Mullah establishments for seeking Muslim votes. They are managing the Imams of prominent mosques in the country for issuing fatwa for votes in their favour. The Muslim masses being ignorant of the complexities of electoral maneuvering hardly exercise their votes with open mind. They look towards their Ulema for guidance and follow their fatwa to vote on communal line.

On the eve of every election it has been a practice of some of the Muslim organisations and Individuals to issue fatawa appealing the Muslims to vote against the BJP or any political party that had not served their respective political interests. Muslim organisations like JUH, JEI, All India Milli Council, All India Muslim Personal Law Board and Mushawarat ask the Muslims to vote for secular parties like Congress, Communists, SP, RJD and the BSP.

It was a routine affair for Shahi Imam of Jama Masjid Delhi to issue such fatwa. This is however, the first election when he declared, "no fatwa will be issued in this election" on the plea of his disillusionment with the present political leadership (Hindu dated April 14, 2004). But All India Milli Council in Lucknow, Muslim United Forum in Hyderabad and some other Muslim organisations have appealed to the Muslim voters to defeat the BJP and its alliance partners. For some of the Muslim personalities of Western Uttar Pradesh "the BJP is no more untouchable". A section of liberal Muslim intellectuals "dub their co-religionists as traitors of the community if they exercise their votes in favour of the BJP".

The above contradictory stands of Muslim organisations and individuals on political issues prove that they have made a mockery of the fatawa and only create confusion among the common Muslims. Fatwa for vote during elections adds to the challenging peril for communal harmony. It has become a handle in the hands of Muslim orthodoxy to interfere in the political affairs and play important role in Muslim politics of the country. Muslim agenda released on the eve of every election is technically not fatawa but in practice the common Muslims view it as the same.

With unchallenging power of fatwa and the support of Sharia (Islamic) courts functioning outside the common legal system in India, the Mullah establishments still run every ghetto of Indian Muslims particularly in rural area. They have been lionizing the separatist and anti-Kafir philosophy in the name of Islam and exercising their assertive influence over the Muslim proletariats for blindly following the tradition of Prophet era. These actions of Muslim orthodoxy frustrated the genuine attempt of Indian leaders to bridge the inter- community gap of mistrust.

Absence of Muslim thinkers to interpret the Islamic scriptures and compile fatawa befitting the contemporary political environment is the main problem the Muslim community of India facing today. Today the tragedy of Indian Muslims is that the anti-Kafir ideology of Muslim orthodoxy has entered politics through fatawa. The fatwa recently issued by Deoband against the cow slaughter has hardly been lauded by the Muslim masses.

The real problem before the Indian Muslims is how to face the contemporary situation in their day to day life. The solution to such problem lies only in generating among them the spirit of independent thinking. Fatwa as Islamic solution may not be possible in any secular and democratic state.

Islam is a religion, the main focus of which like other religious provides a code of life with ultimate aim of spiritual elevation of human beings. Islam may not dispute it. The need for fatawa in Islamic society arose to resolve confusion if any to understand the spiritual inner meaning of Islamic scriptures. But the interpreters of Islam developed subjective attitude and used fatawa also for the materialistic life without considering the spiritual aspect of their religion. This created a gap of mistrust between inter community as well as intra community. The hard-line interpreters of Islam succeeded in dividing the people of Indian subcontinent but even those who stayed back in India after partition never tried to interpret Islam to fit in with the changed political environment. No assertive and effective fatwa was issued by them for inter community harmony. They rather compiled volumes of fatawa only to keep the Indian Muslims separated from the majority community in the name of religious identity.

So long as Indian Islam is not freed from the fatwa of Ulema politics, chances of a  solution of societal problems arising between Hindus and Muslims are remote. The communal and parochial ingredients of fatwa with divisive formulation for Ulema politics have caused immense harm to Muslim society in India. Irrespective of the cosmetics of Deoband's fatwa in support of banning caw slaughter, volumes of fatawa compiled by the Muslim Ulema right from the days of Muslim rule in India closed the windows of the mind of Indian Muslims and blocked their intellectual march to the contemporary global environment.

A feeling is growing among Muslim intellectuals that their co-religionists have been left behind by other communities particularly in the field of education and economic development. They want them to join the race of modern world but in absence of any assertive leadership who can restrain the Mullas from issuing fatwa for dissociation of Muslims from modernity, there is hardly any chance to the solution to the problem of the backwardness of the community members.

(E-mail: ramashray60