Quran case, and the powers of judicial review
Context: A public interest litigation has been filed in the Supreme Court by Wasim Rizvi seeking declaration of 26 verses of the Quran as unconstitutional, non-effective and non- functional on the ground that these promote extremism and terrorism and pose a serious threat to the sovereignty, unity and integrity of the country.
Vishwa Lochan Madan (2014): The Supreme Court has already observed that such fatwas have no validity. Shia clerics have excommunicated Rizvi from the fold of Shias.
Power of judicial review:
- Under Indian law, only a law can be challenged as unconstitutional. Article 13(3) defines law, which includes any ordinance, order, by-law, rule, regulations, notification, custom or usage having in the territory the force of law.
- “Laws in force” on the commencement of the Constitution include laws enacted by a legislature or other competent authority. This definition certainly does not cover any religious scripture including the Quran.
- Neither the Vedas nor the Gita, nor the Bible, nor the Guru Granth Sahib can be said to be “law” under Article 13 and thus challenged in a court of law.
- The divine books can be sources of law but not law in themselves. Thus the Quran in itself is not “law” for the purposes of Article 13.
- It is the paramount source of Islamic law and Muslim jurists extract laws from it through interpretation and also taking into account other sources of law such as Hadees (Prophet’s sayings), Ijma (juristic consensus), Qiyas (analogical deductions), Urf ( customs), Istihsan (juristic preference) and Istisilah (public interest).
Terrorism already a crime:
- The petition claims the Quran promotes terrorism and therefore these 26 verses must be removed.
- Freedom of religion under Article 25 is subject to public order, health, morality and other fundamental rights. No one can take away anybody’s life as it would be contrary to Article 21, which guarantees right to life and personal liberty to everyone.
- While killing of a human being is punishable under Section 302 of the IPC, 1860, UAPA was passed in 1967 and amended in 2008 in compliance with the UN resolutions to combat terrorism.
- No terrorist can defend himself by relying on his religious texts as the law of the land, not the Quran, will apply in such cases. There are religious practices which the laws prohibit, such as sati under the Sati (Prevention) Act, 1987 or untouchability under Article 17 of the Constitution and the SC & ST Atrocities Act, 1988.
PILs & petitioners:
- PILs or pro bono public litigations became popular post-Emergency when the Supreme Court was suffering from a crisis of legitimacy due to its pro-government decisions.
- In Narmada Bachao Andolan (2000), Justice B N Kirpal said public interest litigation should not be allowed to degenerate to become “publicity interest litigation” or “private inquisitiveness litigation”.
- To restrict use of PILs, the first question courts ask today is about the credentials and motives of the petitioner.
- In Ashok Kumar (2003), Justice Arijit Pasayat held that the court has to be satisfied about the credentials of the petitioner, his information must not be vague, and the information should show gravity and seriousness.
- While the petitioner claims he had done extensive research on the Quran, he has not annexed any book or article published by him on the Quran.
- The petitioner seems to have no clarity about the fundamental distinction under International law between the laws of war and laws of peace.
- Hugo Grotius (1583-1645), known as the father of international law, titled his book De jure belli ac pacis (The Rights of War and Peace).
- The verses quoted in the petition are not only about war but refer to a particular situation of persecuted Muslims who had to migrate to Medina and were expecting an attack by the Meccans within the premises of a sacred mosque in Mecca during Haj.