Clerical Institutions and Individual Ulema Giving Fatwas on All and Sundry Issues Is a New Phenomenon; It Has No Place in Traditional Islamic Theological or Juristic Practices

By Dr. Javed Akhatar, New Age Islam 20 September 2023 The Problem of Religious Guidance of Indian Muslims (A Forward-Thinking Proposal) ----- (This is an English rendition of the Urdu article ‘Hindustani Musalmano ki Dini Rehnumai ka Masla-Ek Tajwiz authored by Professor Mushirul Haq in 1978) Currently, a peculiar situation has emerged for the Muslims of India. Leaders are conspicuously present everywhere, yet a clear path remains elusive. The challenge lies in the fact that even in matters of faith, a definitive course of action is missing. It is undeniable that in nearly every city, and indeed in every significant town, there exist Ulema and institutions that tirelessly offer counsel to those seeking guidance on religious matters through their legal decrees or jurisprudential judgments (fatwas). Nevertheless, this accessibility or convenience has, in a sense, given rise to a condition of 'abundant guidance' at a national scale. As all the religious institutions in the country and individual muftis (qualified legal scholars) do not acknowledge any authority beyond God, whose verdict is regarded as ultimate and conclusive, more often than not, a state of chaos ensues rather than genuine guidance. Even without providing specific examples, one can confidently assert that, if necessary, two entirely contradictory fatwas can be easily obtained within a single issue. I wish to emphasize that the disparity in these responses is in no way a reflection of the muftis' intentions. Rather, the main issue lies hidden in the current flawed methodology of Ifta (the issuance of formal legal opinions). The Mufti is bound by the wording of the Istifta (the inquiry seeking a fatwa). He is obligated to respond based on the phrasing used in the Istifta sent to him. It is not within the purview of a Mufti to assume that he must personally investigate the events described in the Istifta before issuing a fatwa from his own perspective. Is this a deficiency inherent to the Mufti or is it a characteristic intrinsic to the structure of the 'institution' of Ifta itself, such that the Mufti himself cannot independently assume the role of an investigator? The history reveals that during the early days of Islam, there existed no formal institution tasked with issuing fatwas. Individuals would turn to the Sahaba (Companions of the Prophet) initially, and later to the Imams, seeking guidance. However, as time passed, with the establishment of various branches of Islamic governance and the formation of courts by both central and provincial authorities, where qazis (judges) were appointed to preside over and adjudicate cases on behalf of the Caliphs, it became evident that the qazi need not be intimately familiar with every minutia or facet of a case. Consequently, a class of scholars known as Muftis emerged, possessing a meticulous understanding of jurisprudential intricacies. Their primary role was to furnish legal assistance to the qazis whenever required. It can be likened to the contemporary practice where every court is equipped with a law library, varying in size, and, similarly, during that era, the Muftis served as a portable repository of legal knowledge for the Qazis. Ulema who were not affiliated with the court lacked the authority to formally issue fatwas. There was only one exception to this rule: when even non-judicial Ulema were free to issue a fatwa, and that was in the case of a rebellion against the ruling king. In the annals of Islamic India, we come across numerous distinguished Ulema, but their mention is not limited to being muftis. It was during the nineteenth century, as the East India Company firmly established its presence on this soil and appointed qazis with restricted authority in different locales, then people began turning to independent Ulema, untethered from the Company's employ, for seeking guidance. It is for this reason the abundance of fatwas that we have at our disposal from Indian Ulema of the nineteenth and twentieth centuries may perhaps surpass the combined number of fatawas found throughout the entire history of Muslim India. While some may argue that Fatawas from the pre-nineteenth century might not have been preserved in written from, but from a scholarly and historical perspective, this excuse holds no weight. Muslims have preserved their intellectual heritage throughout every era. In Islamic India, an extensive body of literature spanning various sciences and arts has been composed. Even if not every work has been preserved, a substantial number remains accessible. Thus, why presume that only the compilation of Fatawas has vanished? We have well preserved almost every single line written by Shah Waliullah with us now. But there must be some reason that why we do not find anything by the name of ‘Majmua-e-Fatawa Hazrat Shah Waliullah,’ (the collection of Fatawa-e-Shah Waliullah) whereas the Fatawas of his son Shah Abdul Aziz are present in front of us in two bulky volumes. Similarly, Sheikh Abdul Haq Mohaddis Dehlawi did not leave behind any compilation of his Fatawas. However, in the 19th century, Miyan Nazir Hussain Mohaddis Dehlawi left his Fatawas in the form of a thick compilation with us. This does not mean to imply that before the 19th century, no work was done on the subject of Fatawas in India. Contrary to this, the fatwas of the Sultanate period, known as ‘Fatawa-e-Tatarkhaniyah,’ and the ‘Fatawa-e-Alamgiri’ of the Mughal era, continue to wield significant authority in both India and the wider Islamic world, representing the enduring contributions of Islamic India. But these two collections of Fatawas unlike the later collections were compiled by the (Islamic) government. I think the situation might have unfolded differently had the East India Company arrived in India as rulers rather than traders. Up until that time, it was customary to disregard the fatwas issued by non-judicial Muftis. Therefore, if the company had wanted, they could have compelled people to adhere to the fatwas pronounced by the Qazis and muftis appointed by the Company, even if they were perceived as unjust. This would have been in line with the Persian saying, "Qahr-e-Darvesh Bar-Jaan-e-Darvesh" (endurance is the only remedy when there's no cure). However, as the Company initially prioritized their trade interests over religious matters, they opted to keep religious courts intact while refraining from imposing any restrictions that might inhibit Ulema from issuing individual fatwas. This policy resulted in an accumulation of intellectual wealth, albeit at a substantial cost. Subsequently, the central authority for issuing fatwas ceased to exist, and in religious matters, every Ulema began to assert themselves as the ultimate authority. Regardless, it is now an established fact that no Ulema in the entire country hold central authority, nor does any institution. Every scholar is at liberty to issue a fatwa. We acknowledge a fatwa only when it aligns with our desired stance. When we do not receive a favourable response (fatwa), we promptly seek the opinion of another mufti. As I pointed out earlier, juxtaposing a single issue with multiple solutions, supported by jurisprudential reasoning, and obtaining two different resolutions is not a difficult task. Moreover, the decision to accept or reject these Fatawas rests solely on our discretion, as a Mufti or Darul Ifta (Islamic legal advisory body) does not possess the authority to enforce their fatwas. Today, aside from the Indian subcontinent, it is rare to find any other country in the world where Ulema have the freedom to independently issue fatwas on social matters. Fatwas can only be issued through government-approved religious institutions. While I cannot speak for the entire world, based on my current knowledge, I can assert with confidence that in Malaysia, issuing fatwas individually is considered a punishable offense. Even in the Islamic nations of the Arab world, no Ulema possess the authority to issue fatwas independently. If individuals seek to expand their knowledge or gain personal insights, they may inquire of the Ulema, but it is only the "Mufti" officially designated by the government who holds the authority to release fatwas. Today, the global community finds itself amidst a period of 'Ilmi Niraaj,' characterized by a form of ‘scientific anarchy.’ This is why individuals across the spectrum feel entitled to express their perspectives on Islam. Given this context, the objection raised by our Ulema holds significant merit: not every newcomer should be permitted to weigh in on religious affairs. However, it is equally crucial to contemplate why every Ulema should be afforded the chance to issue fatwas. Currently, especially in the context of India and considering the prevailing situation, it is crucial that we broaden the scope of ijtihad (independent reasoning) beyond a limited set of social and economic issues. The correct formation of the central committee of Darul Ifta is presently a crucial issue within the realm of ijtihad, and it is intricately linked to the functioning of Ifta. Where you have to make a wide range of ijtihad, then this matter too has been resolved through ijtihad as to whether the authority to issue fatwas should be entrusted to any centralized body or by allowing each Ulema to exercise this prerogative independently. In my view, the latter option could have disastrous consequences. Without centralizing the authority for issuing fatwas, as opposed to granting independent jurisdiction to any Ulema, we may find ourselves unable to transcend the discord on a national scale. Hence, I recommend entrusting the authority to issue fatwas to a high central council of Muslims. This council should comprise Ulema from diverse schools of thought, possessing profound understanding and expertise in various jurisprudential traditions, additionally, it should include Muslim intellectuals well-versed in contemporary issues, ensuring equal participation. Within this central council’s framework, there ought to exist smaller local councils at the regional level across different states. The central council should function as a conduit for delegating the responsibilities akin to mujtahids, who engage in independent juristic reasoning. Conversely, the local councils should operate akin to muftis, offering guidance specific to their respective regions. The local councils may issue fatwas in matters concerning religious rituals, while remaining bound by the decisions of the central council in affairs related to Mamlaat (commercial, civil matters, or dealings). We can illustrate this distinction with an example: Imagine a Hanafi Sunni Muslim seeking a religious ruling (fatwa) from the local council regarding the practice of washing feet during ablution (wudu). According to the Hanafi school of thought, the council must assert that, just as hands and mouth are washed, feet must also be washed for the prayer to be considered valid. Conversely, if the seeker adheres to the Shia school of thought, the council would affirm that simply wiping over the feet suffices for the prayer to be deemed valid. However, when addressing matters such as interest-based loans, life insurance, unit trusts, photography, and other similar social issues, this council will issue fatwas based on the decisions of the central council, without taking into account the jurisprudential school of thought of the inquirer. Allow me to say at this stage that the establishment of councils alone is not the remedy for our chaotic condition. Any council that lacks the legal authority to enforce its decisions on the public is merely a futile waste of time. Due to the absence of ‘executive power’, I have witnessed the formation and dissolution of several councils. Not long ago, Darul Uloom Nadwatul Ulama also formed a similar council. During the same period, Jamiat Ulama-i-Hind also announced the establishment of a council. Regarding the authorized council of Jamiat Ulama-i-Hind, I cannot say with certainty. However, the council of Darul Uloom Nadwatul Ulama had also deliberated on some important issues and had published its revolutionary decisions. But since the council did not have the power of enforcement, its decisions could not gain acceptance either in the realm of Ulema or among the public. Therefore, before the formation of any council, we shall have to open the door to ijtihad in “Islamic Political Theory” as well. We must reexamine the debate surrounding ‘Dar al-Islam’ (the abode of peace) and ‘Dar al-Harb’ (the abode of war) in order to define the identity of the new India. Currently, this issue pertains exclusively to India, devoid of international or pan-Islamic dimensions. It is imperative that the Indian Ulema and Muslim intellectuals take the lead in resolving it. Just as in our historical narrative, amidst evolving circumstances, certain ‘institutions’ have emerged and faded away, similarly, even today, a new ‘institution’ may be established, considering the contemporary demands of democracy, to delineate the status of a Muslim individual. Upon careful deliberation, we may come to the realization that India is a realm where there exists neither ruler nor subject, but rather a shared and equal ownership among all. In such a scenario, it might be plausible to propose the formation of a Council duly recognized by the Parliament, devoid of any Shariah objection. This could potentially establish that only decisions made by the accredited Council in India hold the authority to issue fatwas. ------ Javed Akhatar is Assistant Professor (Contractual), Department of Islamic Studies, Jamia Millia Islamia URL: https://newageislam.com/debating-islam/clerical-ulema-fatwas-traditional-theological-juristic-/d/130716 New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism