ARE FATWAS LEGALLY BINDING IN INDIA ?

According to the Oxford Dictionary of Islam, a fatwa is “an authoritative legal opinion given by a legal scholar (Mufti) in response to a question posed by an individual or a court of law”. Initially, fatwas were independent of the judicial system, later during colonial rule, Islamic colleges (Madrasas) took over the role of religious guides and established special institutions to issue fatwas. In the present day, Muslim states have attempted to control fatwas through official advisory organizations within religious ministries. A fatwa is neither binding nor legally enforceable.Recently, the High Court of Delhi in the case of Mohd Ashraf & Ors. v. Abdul Wahid Siddique (2020) ruled that no legality is attached to a fatwa in respect of ownership of immovable property and it is not binding on any third party. In the above case, the plaintiffs claimed to be owners of a suit property, and the defendant was a tenant of that property. The plaintiffs purchased the suit property through a registered sale deed, pursuant to which notice demanding arrears of rent and vacation of premises were issued to the defendant. The plaintiffs claimed that the defendant is merely a tenant and has no right over the suit property. A fatwa was issued by a Mufti, as per the plaintiff’s, and it vested rights of the suit property in the person whose son transferred the property to the plaintiffs through the sale deed. The defendant challenged the ownership of the plaintiffs on various grounds leading to the filing of the suit for possession. The defense was of the opinion that the original owner had made a declaration, transferring ownership in favour of the tenants. Based on these facts the High Court of Delhi stated-“While a fatwa can be the basis of an amicable settlement of disputes between parties who submit to such a settlement process, binding the same on a third party would be contrary to law”. Hence, the Court laid down the verdict in favour of the defendants. This ruling can be further backed up with a precedent laid down by the Supreme Court of India in Vishwa Lochan Madan v. UOI & others (2014) where it pronounced that a fatwa does not satisfy the requirements of a legally binding document and it does not trace its origin to a validly made law, making it clear that a fatwa cannot be imposed on a third party. The Supreme Court has made this decision with the reasoning that a fatwa lacks legal sanction since it must be either created or sanctioned by any law made by the legislature or passed by the judiciary. A fatwa does not fulfil these requirements, therefore, a Mufti who issues a fatwa has no authority or powers to impose his opinion and enforce the fatwa on anyone by any coercive method. These cases have made it clear and have established that a fatwa although can be abided by parties in their individual capacity, it cannot be legally enforceable against a third party in a Court of Law.

RIGHT TO CHANGE ONE’S NAME IS A FUNDAMENTAL RIGHT

Various High Courts in India till date have taken the same position that the right to change a person’s name is a of the Fundamental Rights granted to the citizens under Part III of the Indian Constitution. On 18th December, 2020, the Single Judge Bench of Allahabad High Court consisting of Justice Pankaj Bhatia, held that the change of name is an expression guaranteed under Article 19(1)(a) and Article 21 of the Constitution of India. A petition was filed before the Court since the petitioner pleaded to change his name from Rishu Jaiswal to Kabir Jaiswal in the school documents however, the CBSE (Central Board of Secondary Education) refused to change the petitioner’s name on his certificates. The Court strongly relied upon the Kerala High Court judgment, Kailash Gupta v. CBSE, where it has been held that to have a name and to express the same in the manner that a person wishes is a part of the right to freedom of speech and expression granted under Article 19(1)(a) as well as the right to liberty under Article 21 of the Constitution of India. In the said judgment, the Kerala High Court was dealing with the scope of Rule 69.1(i) of the CBSE Rules and the Court had permitted the change of name prior to the declaration of the result by CBSE by holding the same to be a right under Article 19(1) (a) and Article 21 of the Constitution of India. The Court also observed that “Name is something very personal to an individual. Name is an expression of one’s individuality, one’s identity and one’s uniqueness. Name is the manner in which an individual expresses himself to the world at large. It is the foundation on which he moves around in a civil society. In a democracy, free expression of one’s name in the manner he prefers is a facet of individual right.” The Allahabad High Court also relied upon the recent Delhi High Court Judgement in the case of Rayaan Chawla v. University of Delhi & Anr, wherein Delhi University, based on a notification dated 1st August, 2015 refused to permit the petitioner to have his name changed on the ground that the student is firstly required to get the name changed in the records of the CBSE. The Court held that it was impossible to get the name changed in the CBSE records as the regulations in question does not permit the same, however, it directed the University of Delhi to permit the petitioner to change the name.The Allahabad High Court opined that the CBSE is a Society registered under the Societies Registration Act, and is governed by the bye-laws and the CBSE rules “do not have any statutory flavor”. The Court further stated that “The freedom of expression as guaranteed under Article 19(1) (a) includes within its sweep all forms of expressions and names in the present world is clearly a strong expression”. Further, the rights enshrined in Article 19(1)(a) are fundamental and thus can only be taken away in accordance with the procedure under Article 19(2) of the Constitution of India.

SC’S STAND ON MISLEADING ADVERTISEMENTS ABOUT COVID-19 CURE

Since the COVID-19 pandemic, people are in a desperate attempt to find its cure to go back to leading a normal life. Taking advantage of the same many people, corporate, businesses, agencies etc. have claimed unlawfully to have a cure or treatment for this virus and have advertised the same on various platforms. The advertisements of high concern were that Homeopathy, Ayurveda, Naturopathy, etc. have treatment for COVID-19. The public might believe these advertisements to be accurate taking into consideration the good reputation and safety of these medicinal systems. To condemn such behavior of many agencies, the Ministry of AYUSH (Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homoeopathy) in consultation with the Government of India had released an advisory/ guidelines on 24th March 2020 for government authorities of center and state to take effective measures with regards to such matters and ensure punishment for those who make false claims. The advisory report states as follows:“Accordingly, in the exercise of the powers of Central Government, conferred under Section 33(P) of the Drugs and Cosmetics Act, 1940, it is hereby directed to all concerned ASUYH Regulatory Authorities in the States/Union Territories to stop and prevent publicity and advertisement of AYUSH-related claims for COVID-19 treatment in print, TV and electronic media and take necessary action against the persons/agencies involved in contravening the relevant legal provisions and the aforesaid guidelines of National Disaster Management Authority.”However, these guidelines were not well received by Advocate M.S.Vineeth and hence a PIL was filed in Kerala High Court, namely Advocate M.S.Vineeth v. The Secretary dated 21 August 2020. The PIL was challenging the guidelines to be inaccurate to the extent that they bar the practice and system of Homeopathic Medicine to cure Covid-19 since as per the petitioner the system has been helpful in preventing outbreaks. The Kerala High Court disposed of the petitioner’s PIL and held the guidelines issued by the Ministry of AYUSH to be accurate. The court held:“Doctors practicing in AYUSH medicines are not supposed to prescribe any medicines, stating that it is curative for COVID-19 disease. However, as per the advisory, there is nothing prohibiting the qualified medical AYUSH practitioners to prescribe immunity booster mixture or tablets, as suggested by the Ministry of AYUSH, Government of India. Medical practitioners in AYUSH can also prescribe the same, but only as immunity boosters.If any qualified doctor practicing AYUSH medicine, makes any advertisement or prescribes any drugs or medicines, as a cure for COVID-19 disease, except those specifically mentioned in Annexure-I advisory to Exhibit-P1 D.O. letter dated 6.3.2020, it is open for the respondents to take appropriate action under the provisions of the Disaster Management Act 2005, and the orders of the Governments, both Central as well as the State, issued from time-to-time.”Resulting from this judgment, Dr. AKB Sadbhavana Mission School of Homeo Pharmacy appealed against it in the Supreme Court of India. On 15th December 2020, the Supreme Court of India in the case of Dr. AKB Sadbhavana Mission School of Homeo Pharmacy v. The Secretary, Ministry of AYUSH & Ors. while upholding the observations made by Kerala HC regarding misleading advertisements for cure of Covid-19, differed on a point that “actions can be taken against Homeopathic Medical Practitioners” and held the same to be restrictive since the advisory dated 6th March, 2020 issued by Ministry of AYUSH already regulates the conduct of such practitioners.

LEGALITY BEHIND BANNING CHINESE APPS

The Government of India blocked the access of 43 Chinese mobile apps via a press release dated 24th November, 2020. The Ministry of Electronics & Information Technology (MEITY) passed a ban on these apps operating its powers under section 69(A) of the Information Technology Act, 2000. Earlier, on 29th June 2020, the Government of India had blocked access to 59 mobile apps and on 2nd September 2020, 118 more apps were banned operating under the same section. Section 69(A) gives the Central Government an authority to block any online content in the wake of sovereignty and integrity of India, security of the State, defense of India, friendly relations with foreign States or in event of an emergency. Rule 9 of The Information Technology (Procedure for Blocking of Access of Information by Public) Rules 2009, talks about blocking information in case of an emergency. The IT Act, 2000 and the Rules therewith form the primary source of law that deal with cyber crime and electronic commerce in India. The action of banning such apps was taken to safeguard the sovereignty and integrity of India which was claimed to be at risk. The Indian Cyber Crime Coordination Center, Ministry of Home Affairs, in its report indicated the potential data breach and theft that is happening as a consequence of these apps. Therefore, this ban can be seen as an imperative step for protecting the privacy of personal and non-personal data of the citizens of India which will soon be statutorily granted to all the citizens of India.Moreover, the vacuum that Indian citizens would feel, will encourage them to develop their own apps, which is a positive step towards an Atma Nirbhar Bharat and has potential to generate a good domestic revenue. For instance, after the ban on PUBG and Tiktok, etc., India had launched its own versions replacing such apps. However, the ban could lead to an increase in unemployment since various people were working in India on behalf and in relation to such apps and startups. The ban can be observed as a consequence of the border tensions between China and India in eastern Ladakh which also reflects external aggression. China condemned India’s decision and stated that the ban is neither beneficial to Indian users nor to China’s businesses. It further claimed that India has abused the concept of ‘national security’ and adopted discriminatory restrictive measures against Chinese companies, violating relevant WTO rules. The fact remains that banning such Chinese apps is an economic move that will adversely impact the Chinese revenue system and they will even lose ads from Indian markets.

CONSTITUTIONALITY OF 1975 EMERGENCY CHALLENGED IN SC AFTER 45 YRS

In 2020, India completed 45 years from the National Emergency of 1975. It was the third national emergency declared in the nation. Indira Gandhi, the then Prime Minister was declared guilty of electoral malpractices and was barred to participate in any election from 12th June 1975  till the next 6 years and the Congress party was given 20 days-time to find a replacement. Indira Gandhi challenged this judgement in the Supreme Court. However, the Court on 24th June 1975 reiterated the same and held that till the stay period, Indira Gandhi had the powers of a PM. At around 9:30 p.m., on 25th June 1975, the proposal for proclamation of Emergency was sent to President Fakhruddin Ali Ahmed and Indira Gandhi acting as the prime minister invoked Article 352 of the Constitution and announced a National Emergency due to ‘Internal disturbance’. The press, media, movies and any other kind of art was censored and all other fundamental rights were suspended. After 45 years of this national emergency, a woman named Vera Sarin filed a petition before the Apex Court to declare the emergency of 1975 as ‘unconstitutional’. She states that she and her family were the victims of the excesses of that ‘grave and dark period of our nation’s history’. She stated the miserable living condition of her family due to exploitation by government administrators. Vera Sarin’s husband had a business of gold arts, gems, artefacts etc. and was booked under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (COFEPOSA) and the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act of 1976 (SAFEMA). The case was dismissed by Delhi High Court in the year 2014. However, he was thrashed with numerous other cases, threatened by police and their family property was raided repeatedly. The petition stated, “Even as on date, the movable properties including jewellery, artefacts, figurines, paintings, sculptures, and other valuables have still not been reinstituted to her family. The petitioner is entitled to be compensated for the acts, deeds and things done under the authority of the government,” thus the petitioner has claimed compensation of Rupees Twenty-five crore. The petition was filed relying on the judgment of KS Puttaswamy (Retd.) vs. Union of India which overruled the ruling given in ADM Jabalpur case. During the period of emergency, the state is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution, the power to suspend the operation of these fundamental rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. However, Article 21 which talks about right to life and personal liberty cannot be suspended in any case. In the case Maneka Gandhi v. Union of India, the Supreme Court held that the expression “life” does not merely connote animal existence or a continued drudgery through life, the expression “life” has a much wider meaning. It is, therefore, claimed that the petitioners were deprived of that “life” due to the actions taken against them during and as a result of the National Emergency of 1975. The maintainability of the petition was questioned in the Supreme Court before Justice Kaul whereby he gave a further date for hearing the matter on Monday i.e., 14th December 2020. The petitioners will be represented by Adv. Harish Salve.

Criticism to Contempt: Freedom of Expression on Social Media

In recent years, the Indian authorities have increasingly used criminal laws, including for counterterrorism,  sedition, and criminal defamation, against peaceful dissenters, journalists, rights activists, academics, and  students. Contempt of court is one such law and is sui generis and traces its root from the inherent powers  of the court that must be invoked in extraordinary circumstances to meet the end of justice. The Traditional  media and other social media platforms are mainly concerned with Criminal Contempt. According to  Section 2(c) of the Contempt of Courts Act 1971, criminal contempt is defined as; any publication (of words,  

spoken or written, or by signs, or by visible representation, or otherwise) of any matter which (i) scandalizes  or lowers the authority of any court or (ii) prejudices, or interferes with the due course of any judicial  proceeding or with the administration of justice in any other manner. A publication which attacks individual  judges or the court as a whole with or without reference to a particular case, casting unwarranted and  defamatory aspersions upon the character or ability of the judges, has also been recognized as scandalizing  the Court. Similarly the Courts have time and again held that, liberty guaranteed under Article 19 of Indian  Constitution is not to be conferred with license to make unfounded, unwarranted and irresponsible  aspersions against the judges or the courts in relation to judicial matters 

In a new tussle between freedom of speech, contempt and the Supreme Court’s legitimacy, in (i) Prashant  Bhushan Case. The Supreme Court initiated suo moto criminal contempt proceedings against Advocate  Prashant Bhushan and Twitter India, on the basis of two tweets posted by Bhushan on the social media  platform on June 27 and June 29. The reasoning for initiation of proceedings was- Mr. Bhushan, wilfully  and deliberately using hateful and scandalous speech by means of Twitter, against the Supreme Court and  the judicial system. The Supreme Court had imposed a token fine of ₹1 on Mr. Bhushan for his tweets  against the judiciary. His first tweet, reproduced in the court, said: 

“When historians in the future look back at the last six years to see how democracy has been destroyed  in India even without a formal Emergency, they will particularly mark the role of the SC in this  destruction, and more particularly the role of the last four CJIs.” 

His second tweet said: “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata  Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the  SC on lockdown mode denying citizens their fundamental right to access justice!” 

The Second case is of (ii) Comedian Kunal Kamra- wherein Attorney General K.K. Venugopal granted  consent to initiate contempt of court proceedings against Comedian Kunal Kamra for his tweets criticizing the Supreme Court for fast-tracking the hearing of Republic TV Editor-in-Chief Arnab Goswami’s bail  appeal. Kunal Kamra posted four tweets after Arnab Goswami was granted interim bail in a 2018 abetment  to suicide case, with one of them showing a picture of the Supreme Court building swathed in saffron  color with the BJP flag flying atop it. 

The criminal contempt cases against Prashant Bhushan and Kunal Kamra offer an opportunity of  introspection to the judiciary and simultaneously raise questions over the legitimate/reasonable exercise  of freedom of speech by citizens. To quote Lord Denning “We do not fear criticism, nor do we resent it”  Therefore during contempt processing the primary aim of the jurisdiction should be to protect the dignity  of the court and the due administration of justice and then to uphold the personal dignity of the Judges.