Clash of Sharia and Common Law: Freedom of Religion Is Not an Absolute Right: Faizan Mustafa

Hyderabad: The shading controversy taken by Maulana Khalid Saifullah Rahmani, Secretary, All India Muslim Personal Law Board (AIMPLB), to remarks by Faizan Mustafa, Vice-Chancellor, NALSAR University, that the law of the land would prevail over Sharia, s is in-depth with the latter strongly defending what he said at a recent book release function here.

In a video uploaded today as part of his Legal Awareness Web Series, Did Faizan Mustafa ask if Muslims are ruled by religion or laws made by parliament? Responding to the report published by Siasat.com, he said that as citizens of the country, people have no choice but to follow the legal system of the country. Even those who are not citizens are also bound by the laws of the country as soon as they land on its territory. The same is true with other countries.
“Therefore, asking people whether they considered the law of Parliament supreme or the law of Sharia is not an appropriate question at all,” the vice-chancellor said and added that perhaps the Maulana also didn’t want to say it as reported. .

Acknowledging that he had immense respect for the Maulana and also for experts in all fields, he described Maulana Rahmani as a renowned scholar and an expert in Islamic law. “But my expertise is law and not religion. I can’t show the country what religion is and it’s not my duty either,” he remarked.
In a detailed clarification, he said he is not trained in theological issues and judges are not trained in common law. Cases before the courts are decided on the basis of law and judges should not venture into the realm of theology – whether Hindu, Christian, Jain or Islamic – since law and theology are two different things. The law prescribes human behavior from which it judges deviants. Moreover, it is the Constitution which gives freedom of religion and also sets its limits. “We can follow religion as long as it does not affect public order, health, morals and other basic rights,” the VC said.

He recalled how he questioned the doctrine of essentiality in the Sabrimala case. The Supreme Court accepted his argument and appointed a larger chamber that examines whether the judiciary should decide the essential and non-essential characteristics and practices of a religion.

The VC further stated that one is free to believe in one God, Trinity, Nirakar or Sakar. This is something that the law does not determine. But everyone is bound by laws passed by Parliament and state assemblies. In this regard, he referred to various laws such as the Dissolution of Muslim Marriage Act 1939, Maternity Benefit Act, LIC Act, Consumer Protection Act, Prohibition Act of the dowry, the minimum wage law and said that everyone is required to follow them.

Fazian Mustafa wants everyone to know that freedom of religion guaranteed by the Constitution is not an absolute right. It is a restricted right subject to non-violation of other fundamental rights. A law can be a law as long as it is in line with the Constitution, he said and wished that the religions would provide flexibility and make a liberal interpretation of their laws so that there is no confrontation with the law of the country. In the event of a confrontation, the law of the land will be followed and religion must give way. In the event of a conflict between religion and freedom of expression, the latter will prevail, as well as the right to equality and individual liberty.

When contacted, Maulana Rahmani said that in Islamic jurisprudence it is possible to change according to the needs of the times. But change is not possible in the commandments which are clearly established through the Quran and the Hadith. However, the rules based on ijtehad (independent reasoning), whoever they are, can be changed and are being changed.
Countrymen believe in the existence of Shri Ramji, whose period dates back several hundred years. No historical evidence can be presented on this subject and yet the court accepted it since it is the belief of the people. In the same way, Muslims believe that the commandments given in the Quran and hadith come from Allah and with the same spirit and belief, the Sharia Enforcement Law of 1937 is made. Therefore, it is wrong to think that Muslim personal law does not have the status of law,” the Maulana said.

He further stated that the Constitution allows everyone to act according to their belief and conscience provided it does not hurt others. All the laws that come under the gambit of Muslim personal law are of the same nature. Muslims regard them as immutable laws given by Allah and His Messenger. It is wrong to say that Islam has become obsolete or that its rules have become obsolete. Man-made laws become obsolete and are repeatedly changed. “But divine law is up to date since it is made by the Creator who knows the present and also the future,” he said.

The Maulana clarified that Muslims are not against administrative laws passed by Parliament. But if they are against Sharia and morality, Muslims should stay away from it. Like a man and a woman living together without nikah is a sin in Shairah’s eyes, although the law may allow it. “But you have to escape it,” he said.

Recognizing Faizan Mustafa’s expertise in the field of law, the Maulana said he was of great value to the community and the nation. But that doesn’t mean you can’t differ from your opinions, he noted.