Question:
I am working in India. In courts Indian laws are administered and as such the courts have to decide matters in terms of Indian constitution. Can a person act as a Judge or a clerk or as any other staff member in such courts. Particularly if the Muslims decline to work in such courts, non Muslims would take over them, which would be detrimental to the interests of Muslims. Please explain in detail with references.
And would it be beneficial if one were to tacitly implement the Islamic Law were ever possible.
And what steps should we take to save ourselves?
Mubashir Hassan
Answer:
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
Respected Brother in Islam,
We have referred your query about working in Indian Courts to an advocate. Hereunder is his response. We concur with his views.
Your attached question refers.
The Indian Constitution is secular. The Judge’s function is merely to enforce the law as it stands. Judges, generally speaking, do not make the law.
As a Muslim, a person in such a position is bound to uphold and implement the law. He has no general discretion in that regard. As such, the person will have to enforce many laws that are diametrically opposed to the Shari’ah, for example laws giving expression to homosexual “rights”. The list can go on.
Therefore, it is not permissible to serve as a Judge in such a secular state.
It is not possible to tacitly implement the Shari’ah under a secular constitution. That is merely a pipe-dream used to appease the conscience. Practically, it cannot work for the two systems – the secular ideology and the Shari’ah – are poles apart, and cannot be reconciled on many critical issues.
There is a concept called “judicial discretion”. This term should not mislead students of law. Whilst a judge does have some latitude in interpreting statutes and the common-law, this is by no means unfettered. There are a host of factors that constrict the options available to the judge. Hence, in the final analysis, the judge is bound to carry out man-made laws that contravene the Shari’ah.
A clerk of the court, as the very name suggests, does a clerical function. There are no decision making functions that the clerk carries out. Therefore, it is in principle permissible to work as a clerk in the court, but it is something discouraged.
We are not accountable if some non-Muslim takes up the same position. We are not obliged to take up every position available in order to thwart the position going to a non-Muslim. Rather what we are required to consider is whether or not we, as Muslims, by taking up the position will be acting contrary the Shari’ah.
And Allah Ta’āla Knows Best
Arshad Ali
https://fatwa-tt.com
Trinidad
Checked and Approved by,
Mufti Ebrahim Desai.
