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Islamic Fiqh Academy of India

By:
Waris Mazhari
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Oxford Islamic Studies Online What is This? Online-only content developed by noted scholars is continuously added to the site, part of our ongoing efforts to expand our coverage of the Islamic world.

Islamic Fiqh Academy of India

The Islamic Fiqh Academy (IFA) is an Indian institution established in 1989 by the prominent Deobandi scholar Qazi (qāḍī) Mujahidul Islam Qasimi (1934–2002). The term fiqh refers to Islamic law rulings, derived from the Qurʾān, the prophetic reports, and the epistemological formulations produced by Islamic legal traditions. Ideologically, IFA is associated with the Deobandī school, a Sunnī–Ḥanafī institution that was founded as a revivalist movement in the late nineteenth century in India. IFA’s founder Mujahidul Islam was regarded as one of the preeminent jurist-theologians (ʿālim, pl.ʿulamāʾ) of modern India. The idea of IFA arose from Mujahidul Islam’s work in the Imarat-i Sharīʿah, a network of informal religious tribunals established throughout the states of Bihar and Orissa and now widespread in other parts of India (see Moosa, 2009). Although these informal tribunals addressed issues of divorce, marriage, and inheritance matters, Muslims in India faced numerous challenges in areas in which there was a paucity of available research in Islamic law and ethics. The goal of IFA was to provide solutions through a collective effort of religious scholars in order to solve the contemporary legal and ethical problems Muslim societies faced. IFA has successfully brought together a large number of religious scholars (ʿulamāʾ) and collaborates with a global network of several Islamic institutions with similar objectives. The ʿulamāʾ affiliated to IFA deliberate and make all the final decisions. To educate unaffiliated Muslim scholars on the most recent ethical issues, IFA hosts annual international and regional seminars. These seminars discuss all matters from the perspective of the four Sunnī schools of law in a bid to find acceptable solutions. As of 2017 IFA has conducted twenty-seven international seminars. The seminars are held in different cities in India. The seminars held in Delhi (1989), Hyderabad (1991), Aligarh (1995), Basti, (2000), Hyderabad (2004), Mysore (2006), and Assam (2016) are considered the most important ones in terms of their themes and objectives. In these seminars, IFA addressed almost 135 crucial issues such as medical ethics, insurance, divorce given by a drunkard and given in the state of intense anger, interfaith relations and dialogues, genetic science, the effects of genetic science on the matters of medical science and judicial procedures. IFA has published detailed proceedings of its seminars and books on the related topics in more than 150 volumes (in different languages) to document its research. These publications that are widely consulted by ʿulamāʾ and jurists.

IFA has conducted several seminars on bioethics as well, with themes ranging from medical ethics, birth control, organ transplantation, euthanasia, brain death, plastic surgery, questions related to genetic tests, HIV/AIDS, and cloning (Islamic Fiqh Academy of India, 2014, pp. 3–33; Moosa, 2009, pp. 317–325). Some of IFA’s important discussions on bioethics will be discussed in summary form below.

IFA’s Decisions on Bioethics

The IFA seminars explored many issues: Is a doctor permitted to reveal the disease of a patient to others without seeking the patient’s consent? Would disclosure constitute a violation of the Sharīʿah’s commandment to respect the sanctity of someone’s privacy? Does a woman have the right to seek the dissolution of her marriage after gaining knowledge that her husband has HIV? Can a woman carrying the HIV virus abort her pregnancy fearing the transmission of the virus to the fetus? Likewise can a government compel her to do so? The majority of the ʿulamāʾ who participated in these seminars concluded that since a doctor is a trustee of his/her patient, from the Islamic point of view, he/she is required to uphold doctor-patient confidentiality. A physician thus is not obliged to disclose to couples planning to marry if either one of them carries health risks.

If a potential husband or wife, or their respective legal guardians, ask a physician about the health of a potential partner, then most scholars in the seminar argue that the status of the physician changes. Following an inquiry to the physician about the health of a future husband or wife, the medical practitioner’s status changes to that of a counsellor. As a counsellor, the physician is not permitted to conceal information regarding the health deficiency of a patient. This is in keeping with the teaching that “a counsellor is trustworthy” (Tirmidhi, ḥadīth 5061), according to a well-known ḥadīth. But if no such inquiry is made, the physician is not obliged to make any disclosures to any party. Similarly, the majority of the ʿulamāʾ in the seminar held in October 1995 at Aligarh agreed that if a man married a woman while concealing his disease, his wife has the right and grounds to seek the dissolution of the marriage (Qasimi, 1997, p. 37).

Euthanasia.

In 2007 IFA held a seminar to discuss the controversial issue of euthanasia, with over two hundred ʿulamāʾ and scholars from India in attendance. Most of the arguments against euthanasia were based on several Qurʾānic verses, for example, 17:23 and 5:32, that proscribed the killing of an innocent person. Prophetic traditions also warn “a person must not wish for a premature death” (Nisābūri, ḥadīth 2680.4). And another prophetic tradition states: “Allah has not originated any disease without also originating its remedy” (Tirmidhi, ḥadīth 2038).

Muslim jurists in the early period of Islam held that even a patient suffering the unbearable agonies of an incurable disease was not permitted to take his or her life (Izzuddin bin Abdul-Salam, 2000, p. 138). However, adhering to the principle that the treatment of the sick person is not mandatory in every circumstance, early jurists inferred that it was permitted to stop treatment of a person suffering from an incurable disease or discontinue treatment of a patient who has minimum hope of cure. In other words, a patient should be protected from prolonged and unnecessary suffering, and under such circumstances a patient can be taken off life support. This ruling provided a justification for passive euthanasia. However, very few Muslim jurists regarded active euthanasia as permissible. One condition under which some scholars allowed active euthanasia was if due to psychological suffering it was feared that the patient would utter something blasphemous or make utterances tantamount to disbelief. The latter view stemmed from the understanding that the protection of one’s faith surpassed the preservation of a life of suffering (Islamic Fiqh Academy of India, 2013, p. 209). But the majority view of scholars in the seminar outlawed both active and passive euthanasia, especially if a patient had dependents who could provide care.

Organ Transplantation.

For a long time, some influential sections of the Indian ʿulamāʾ held strong reservations about organ transplantations. In most instances, the ʿulamāʾ of the Indian subcontinent deemed it unlawful and contrary to the ethical principles of Islam. In favor of this prevalent view, the ʿulamāʾ who participated in IFA’s seminar argued that transplanting organs from one body to another was akin to mutilation, a practice forbidden by the Sharīʿah. The Prophet said, “Breaking the bones of the dead person was akin to breaking the bones of the living person” (Sijistani, ḥadīth 3207; see also Moosa, 1999, pp.305–342). Another argument against organ transplantation was that it was contrary to human dignity, a highly cherished view supported by the Qurʾān and several prophetic traditions. Moreover, many feared that transplantation could promote a trade in human organs. Another concern was the fear that it could open the door to prohibited substances such as the flesh and bones of human beings being used in experiments, or in the preparation of illicit medications (Qasimi,, 2006, p. 296; Qasimi,, 2006, p. 306). The ʿulamāʾ allowed the use of human blood only for medical purposes. However, if an organ of a person was used in the remedying of his or her own body, it was lawful, for it was not regarded as the humiliation of the person’s dignity. It was also argued that except in a pressing necessity (iḍtirār), the use of animal organs was permissible if the animals had been slaughtered in accordance with proper Islamic ritual, and were animals Muslims are allowed to consume.

Contrary to the general opinion, Khalid Saifullah Rahmani, the current general secretary of IFA and a prominent expert in Islamic jurisprudence advocated organ transplantation. Based on arguments drawn from prominent Ḥanafī-Islamic legal treatises such as Khulāṣatul Fatāwā, al-Baḥr al-Rāʾiq, Fatḥul Qadīr, and Tuḥfatul Fuqahāʾ, he made the case that in the absence of clear historical guidance on this topic there was a need to interpret the Sharīʿah in accordance with the social customs and practices (ʿurf) of the present. Since modern technology has made it possible for people to benefit from human organs, Rahmani held, it does not amount to a violation of human dignity. He also argued that, given contemporary conventions and custom, transplantation does not violate human dignity, hence, its practice is permissible in Islam (Qasimi, 2006, p. 313). Officially, IFA though continued to hold the prevalent view of the prohibition of organ transplantation.

Another aspect of this debate is whether the sale of human organs is permissible. Rahmani is in the forefront of those scholars who support the sale of organs. According to these scholars, human organs have a price value (taqawwum) in Islam. They base their arguments on the precedent that when a person kills or causes bodily harm to another person they pay blood money to the victim or their dependents proportionate to the value of the loss of life or the value of the limb or organ. Rahmani also finds support from scholars in Shafīʾī and Ḥanbalī schools of jurisprudence who regard the sale of breast milk as lawful. The famous Ḥanbalī scholar Ibn Qudāma (d. 1223) wrote that if Sharīʿah permitted the slave trade—a practice widely accepted in the medieval Muslim world—then it would a fortiori be valid for parts of the human body to be sold and purchased for the greater good (Ibn Qudama, 1985, p. 177.). But Ibn Qudāma also argued that human organs cannot be sold or purchased because these organs lose value when separated from the body. Proponents of organ transplantation like Rahmani observe that Ibn Qudāma’s view on the worthlessness of separated organs was due to the fact that the preservation and transplantation of organs was not possible during his time. With the development of modern medicine, the use of human organs has not only become possible, but has also become indispensable. Therefore, in light of Ibn Qudāma’s opinion, the transaction of human organs and organ banks is regarded as permissible (Qasimi, 2006, p. 322). In addition, as Rahmani pointed out, legalizing organ transplantation will help in the treatment of victims of wars and natural catastrophes, such as earthquakes and severe accidents (Qasimi, 2006, p. 324). However, it should be noted that IFA does not subscribe to Rahmani’s view on this matter and still regards the transaction of human organs as unlawful (International Fiqh Academy of India, 2012, p. 207).

Abortion and Birth Control.

Contrary to the progressive ʿulamāʾ of the famous four schools of Sunnī thought, contemporary traditionalist ʿulamāʾ adhering to these schools, with a few exceptions, hold that birth control and family planning practices are against Islamic law. Out of concern for the health and well-being of the mother and child, they permit it only in order to maintain good spacing between multiple pregnancies. Nearly all the ʿulamāʾ who attended the academy’s 1989 seminar on this issue supported family planning as a means to promote the well-being of the living. They derived the validity of their opinion from the tradition that suggests that the Prophet had allowed the practice of azl or coitus interruptus for his Companions if they wished to do so with their wives (Tirmidhi, ḥadīth 1136; Abu Dawood, ḥadīth 2173) Going a step further, Abū Hāmid al-Ghazālī held that even coitus interruptus is permissible if the husband wishes to maintain the beauty of his wife by avoiding pregnancy (Ghazālī, p. 491).

There remains the question of whether a person can use birth control methods for economic reasons. The ʿulamāʾ generally do not consider economic hardship to be a valid reason to invoke the lawfulness of birth control. However, some insist that this aspect must be taken into consideration. Arguing against the view of the majority, the minority held that the Companions of the Prophet practiced coitus interruptus with their slave girls for economic reasons, especially to ensure that the market value of the slaves did not depreciate as a result of pregnancies (Abu Dawood, ḥadīth 2172).

In the view of the traditionalist ʿulamāʾ, including those associated with IFA, abortion is permitted, provided termination is deemed necessary during the first four months of pregnancy. The practice is regarded as unlawful if the pregnancy exceeds four months, when many believe the fetus is ensouled. In the view of some ʿulamāʾ, who draw on the opinion of ʿAbd al-Ḥayy al-Anṣārī al-Laknawī (d.1886), a rape victim can have an abortion even after the four-month period (Qasimi, 2006, p. 470). That aside, once a fetus is ensouled, according to the majority view of ʿulamāʾ, including participants of IFA’s seminars, the mother is not permitted to terminate a pregnancy, whether the fetus is underdeveloped or suffers from a disease. Likewise, state officials are not allowed to coerce a sick pregnant woman to abort, even if they fear she will transmit a dangerous virus through her pregnancy. However, such steps could be taken only within 120 days of conception.

Plastic Surgery.

The majority of ʿulamāʾ consider plastic surgery as an abominable act of “alteration in the creation of Allah.” The Qurʾān (4:119) has condemned such alteration and it is thus forbidden in Islam. A minority view permits plastic surgery and argues that it is not the equivalent of altering nature. They argue that one cannot view circumcising a child or castrating an animal as altering Allah’s creation, nor as being against the laws of nature. Therefore, they argue that plastic surgery should be permissible in Islam (IFA, 2010 p. 265.). The other underlying reason for the prohibition of plastic surgery in the view of the majority group is tadlīs, that is, hiding the truth, which is strictly condemned in several prophetic reports. In one of the seminars conducted by IFA, a group of Indian ʿulamāʾ expanded on their view that Sharīʿah does not permit plastic surgery even for the purpose of improving one’s appearance and beauty. Islam permits it in only two cases: as a medical treatment and to hide the identity of a persecuted person from the grasp of an oppressive ruler.

Genetics.

Genetics has raised many ethical concerns. On the basis of predictive genetic tests, could one make decisions about pregnancies or seek a divorce from a spouse for a disease in the future? Is genetic testing the equivalent of invading the privacy of others? Or does it amount to subjecting oneself to anguish for possible disorders in the future? In a seminar dedicated to this issue, most scholars viewed the predictive certainty of genetic testing to be the root of many problems. To support their view, they cite the principle: harm (ḍarar) ought to be removed (Ibn Nujaim, 1999, p. 73.). Other scholars reiterated the consensual principle of Muslim jurists, which states that averting an evil (mafsadah) takes precedence over the attainment of a benefit (maṣlaḥah). Most participants view the clinical determination of congenital deficiencies in a fetus as lawful, and subsequent abortion within four months from the inception of pregnancy as lawful (Islamic Fiqh Academy of India, 2013, pp. 48–56).

Conclusion

ʿUlamāʾ, including those associated with IFA, have applied many fundamental principles to the analysis of a range of bioethical issues in modern times. One basic principle is that human dignity must be protected. There is no difference between a Muslim and non-Muslim in terms of human dignity. Islamic jurisprudence regards every human being as dignified irrespective of his/her belief. The ʿulamāʾ who hold organ transplantation as permissible, do not view it as harming the Islamic concept of human dignity, nor do they view the procedure as the mutilation of the human body, as some others do. The second principle they apply is that the body of a person, from the Islamic point of view, cannot be considered his/her own property. In other words, a human being does not have unfettered autonomy over his or her body parts. Therefore, one has no right to exploit one’s body as one wishes. Dealing with the issue of organ transplantation, the question of personal autonomy over one’s body has been the fundamental principle to consider; and because of this a majority of Indian ʿulamāʾ have been reluctant to declare organ transplantation as permissible.

The third fundamental principle that they maintain is the prevailing custom or convention, ʿurf allows for a change in rules in accordance with the change in time and space. While applying this principle, ʿulamāʾ have been striving to seek solutions concerning bioethical issues that may satisfy the objectives of Sharīʿah. Even though this principle is of much importance, the Indian ʿulamāʾ generally show their indifference to the doctrine of the objectives of the Sharīʾah (maqāṣid al-Sharīʿah) fearing that this approach may result in great laxity and unlimited flexibility in ethical values.

Besides advocating these principles, IFA has been deemed to be progressive in bioethical issues. Since its establishment, IFA has tried to stimulate discussions about opportunities and possibilities to expand the traditionalist legal views in the matters of bioethics. IFA, contrary to the conventional approach regarding modern issues, is more open to the exercise of independent reasoning (ijtihād) and analogical deduction (qiyās). Furthermore, IFA emphasizes the use of talfīq—a principle in Ḥanafī school of jurisprudence that allows derivation of rules from the other legal traditions. IFA’s flexible and progressive approach, however, is also constantly challenged by conservative trends that are evident from the recent proceedings of its seminars.

IFA has been reluctant to deal with some important issues like eye donation. This is, perhaps, due to a fear of a backlash from the conservative ʿulamāʾ who might criticize its approach as taking liberties with Sharīʿah principles. It might take time for IFA to expand its methodologies in order to resolve more complex bioethical issues.

Bibliography

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