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Second Fiqhi Seminar

Date: December 8-11, 1989 Venue: New Delhi

The Second Fiqh Seminar was held by the Academy with the cooperation of the Institute of Objective Studies in New Delhi form 8th to 11th of December, 1989 and was inaugurated by the eminent Fiqh scholar of Arab World Dr. Jamaluddin Atiah (Cairo). More than seventy jurists, intellectuals and Ulama from all parts of the country participated in this Seminar. Many eminent persons and representatives of great seats of Islamic learning in India also attended it.

The Issue of Pagdi:

Different views had been expressed in the First Fiqh Seminar (April 1989) on the issue of Pagdi. In the light of those opinions five questions were formulated and were sent to various renowned Ulama and Muftis of India for eliciting their views. Recorded below is the consensus as emerged from replies recieved :

  • As for the amount which the owner of a house receives from the tenant by way of security deposit, it is desirable that the owner of the house keeps that amount with him as it is. However, in case he makes use of the amount, it would be his responsibility to repay the amount to the tenant forthwith on the termination of tenancy.
  • When a house or shop is rented out and the landlord extracts some amount in cash by way of Pagdi, as it is known these days, over and above and in addition to the stipuated monthly rent, it could be deemed that the amount so received is in lieu of his relinquishing his right to reclaim possession of his house from the tenant and it would thus be Islamically permissible for him as being in lieu of his right to reclaim possession of the house at will. In that case when the landlord wishes to take back the premises in his possession, it would be permissible for the tenant to demand and obtain some mutually agreed amount from the landlord in lieu of his vacating the premises and further, it would also be permissible for him to obtain some mutually agreed amount from another prospective tenant in lieu of transfering to him his right to possession which he had earlier acquired against the landlord by paying some amount to him for this purpose.
  • In case the owner has leased out the premises without securing Pagdi and without specifying the period of lease, the landlord shall have the right to reclaim possession of the premises whenever so desired. However, the landlord should give prior notice to the tenant and allow him suitable time commensurate with the interest and convenience of both, to vacate the premises and the tenant should vacate within that time.
  • It will not be permissible for the tenant to demand any amount by way of Pagdi from the landlord for vacating the premises in case the premises had been rented out to him without obtaining any amount from him by way of Pagdi.
  • The Seminar calls upon Muslims to observe the injunctions of Shariah in all matters. Shariah enjoins that all terms governing a contract must be explicitly and unambiguously settled between the contracting parties so as to leave no room for any difference or dispute in future and both parties are safe from any harm visiting them. The seminar particularly emphasises tha the tenure of lease should be clearly fixed and in case the landlord wishes to relinquish his right to reclaim possession of the leased premises, the parties should specifically agree to it and to the terms thereof.

 

Transplantation of Human Organs:

The problems and issues related to transplantation of human organs were discussed thread-bare in the First Fiqh Seminar held on 1-3, April, 1989. The papers presented in that Seminar and details of discussion have been published in the Bahs-o-Nazar, Quarterly, Patna.

In the First Seminar, there was consensus on some issues. For the rest of issues, in order to arrive at a final dicision, a sub-committee was formed to prepare a questionnaire in the light of issues that emerged in the Seminar and to send it to Ulama and Fuqaha for their opinion. The opinion of Ulama and Fuqaha was obtained accordingly.

After going through those deliberations and the opinions so recieved, the following conclusions were unanimously arrived at:
 

  • If an organ of a person stops functioning and for the purpose of restarting its functioning it becomes necessary to replace tht organ, it is lawful to use:
    1. Inorganic objects such as metal, plastic etc.
    2. Organs of halal animals which have been slaughtered according to Islamic methods.
    3. For replacement the organs of such animals whose meat is haram, or of such animals whose meat is halal but which have not been slaughtered in the prescibed Islamic manner, in cases where there is no alternative available and either the life of the persons is in danger or the organ is in the danger of being completely damaged.
      If there is no strong danger to life or the organ being damaged, the use of the organs of pigs is not permissible.
  • It is valid to replace a part of a person’s body with another part of the same person if necessity so demands.
  • It is not premissible to sell one’s organs. It is haram.
  • In case a patient has reached the stage where his organ has stopped functioning and there is strong danger that he will loose his lile if the organ is not replaced through transplantation, and there is no subsitute for it except the human organ, and medical experts are of the opinion that there is a strong likelihood of his life being saved if transplantation of human organ is made and that the needed organs is also available, in such a desperate and unavoidable situation, transplantation of human organ will be permissible for the patient to save his life.
  • If a healthy person, in the light of the opinion of medical experts, is sure that he/she can live with one kidney only, it will be valid for him/her to donate one kidney to an ailing relative, if it be necessary to save his life while no alternative is available, but without charging any price.
  • If someone expressed his wish that after his death his organs may be used for transplantation purpose (testamentary disposition as it is commonly known) it cannot be considered as Wasiyah (will) according to Shariah and is invalid according to Shariah and such a wish is not to be honoured. Names of the Ulama who have endorsed their views on Transplantation of organs and have put their signatures to the above, are given below :
    1. Hazrat Maulana Zafeeruddin Saheb, Darul Uloom, Deoband.
    2. Hazrat Maulana Mohd. Habibur Rahman Khairabadi, Mufti Darul Uloom, Deoband
    3. Hazrat Maulana Mohd. Rafi Usmani, Mufti & President, Darul Uoom, Karachi, Pakistan.
    4. Hazrat Maulana Mufti Saeed Ahmad Palanpuri, Muhaddis, Darul Uloom Deoband.
    5. Hazrat Maulana Abdur Rahman Saheb, Mufti Madrasa Aminia, Delhi.
    6. Hazrat Maulana Mujeebullah Nadvi, Jamaitur Rashad, Azamgarh.
    7. Hazrat Maulana Mohd. Adam Palanpuri, Mufti Jamia Naziria, Kakosi, Distt. Mehsana, Gujrat.
    8. Hazrat Maulana Anwar Azmi, Mufti Darul Uloom, Mau.
    9. Hazrat Maulana Jamil Ahmad Naziri, Mufti & Nazim, Jamia Arabiah Ahyaul Uloom, Mubarakpur.
    10. Hazrat Maulana Mehfoozur Rahman, Mufti, Jamia Miftahul Uloom, Mau.
    11. Hazrat Maulana Khalilur Rahman Azmi Umri, Nazim, Jamia Arabiah Darussalam, Omerabad ( Tamil Nadu ).
    12. Hazrat Maulana Mohd. Ayub Nadvi, Jamia Islamia Bhatkal (Karnataka).
    13. Hazrat Maulana Zubair Ahmad Qasmi, Shaikhul Hadith, Darul Uloom Sabeelussalam, Hyderabad.
    14. Hazrat Maulana Khalid Saifullah Rahmani, Sadr Mudarris, Darul Uloom Sabeelussalam, Hyderabad.
    15. Hazrat Maulana Obaidullah Asadi, Ustad-e-Hadith, Jamia Arabiah, Hathwara, Banda, U. P.
    16. Hazrat Maulana Ziauddin Islahi, Nazim, Darul Musannifeen, Azamgarh.
    17. Hazrat Maulana Mohd. Abdullah Tariq, Basti Hazrat Nizamuddin, New Delhi.
    18. Hazrat Maulana Mohd. Asad Qasmi, Darul Uloom Islamia, Basti, U. P
    19. Hazrat Maulana Maazul Islam, Ustad, Madrasa Imdadia, Moradabad, U. P
    20. Hazrat Maulana Mohd. Mustafa Miftahi, Mufti Darul Uloom, Rajasthan.
    21. Hazrat Maulana Abdul Ahad Azhari, Qazi-e-Shariat, Darul Qaza, Malegaon (Maharashtra).
    22. Hazrat Maulana Siraj Ahmad, Mufti, Madrasa Mahed-e-Millat, Malegaon (Maharashtra).
    23. Hazrat Maulana Abdul hasan Ali, Shaikhul Hadith, Darul Uloom Islamia Arabiah, Bharuch, Gujrat.
    24. Hazrat Maulana Ateeque Ahmad Bastawi, Ustad, Darul Uloom, Nadvatul Ulama, Lucknow.
    25. Hazrat Maulana Anisur Rahman Qasmi, Asst. Qazi Shariat, Emarat-e-Shariah, Phulwari Sharif, Patna.
    26. Hazrat Maulana Saud Alam Qasmi, Nazim Diniyat, Aligarh Muslim University, Aligarh.
    27. Hazrat Maulana Dr. Fazlur Rahman Ginnori, Prof. Deptt. of Theology, Aligarh Muslim University, Aligarh.
    28. Hazrat Maulana Naseem Ahmad Qasmi, Gole Bazar, Sarha, Nepal.
    29. Hazrat Maulana Azizur Rahman Fatehpuri, Mufti, Darul Uloom Imdadia, Mumbai.
    30. Hazrat Maulana Fuzailur Rahman Hilal Usmani, Mufti, Jamia Darussalam, Maler Kotla (Punjab).
    31. Hazrat Maulana Naseem Ahmad Qasmi Muzaffarpuri, Bahs-o-Nazar, Phulwari Sharif, Patna.
    32. Hazrat Maulana Mohd. Zaid Saheb, Ustad and Mufti, Jamia Arabiah, Hathora, Banda, U. P.
    33. Hazrat Maulana Mohd. Junaid Alam Nadvi Qasmi, Mufti Darul Ifta, Emarat-e-Shariah, Phulwari Sharif, Patna.
    34. Hazrat Maulana Habibullah Qasmi, Mufti and Ustad-e-Hadith, Madrasa Riazul Uloom, Goreni, Jaunpur, U. P.
    35. Hazrat Maulana Mujahidul Islam Qasmi, Qazi-e-Shariah, Bihar & Orissa, Phulwari Sharif, Patna and Secretary General, Islamic Fiqh Academy (India).

     

    Issues Concerning Interest (Riba):

    Certain issues concerning interest were discussed in the Second Fiqh Seminar. Consesus on the following points emerged after deliberations in the light of Shariah, rules of Islamic Jurisprudence, precedents and the demands of prevailing conditions.

    1. Riba (interest) is totally haram (prohibited), both giving and taking of it.
    2. Paying of interest is not forbidden for itself but it is so because it opens the doors for the taking of interest. Hence, under certain constrained circumstances the paying of interest may become permissible. The circumstances under which it may become permissible for the needy person will depend on individual cases for the determination of which the person concerned should consult a competent mufti and abide by his guidance.
    3. The Government of India advances loans on subsidy basis and interest is also charged on the loan amount. In such cases if the total amount of interest charged does not exceed the amount of subsidy or falls short of it, then the amount charged as interest will not be interest according to Shariah (Islamic Law).
    4. In cases where the Government compulsarily acquires land (or any other property) under the Land Acquisition Act and fixes its market value according to its own formula; and the land owner, being dissatisfied with the price so fixed, gets the dispute referred to courts of law for adjudication and the court fixes a higher price and orders the Government to pay the same along with interest at a fixed rate on the difference, this Seminar is of the view that this additional amount paid under the name of interest is not, in fact, interest but should be treated as part of the price of the property in question, receiving and using of which is permissible.
    5. In cases where the Government fails to pay the just dues of its employees at proper time and an employee ultimately apprroaches a court of law for redressal and the court, while fixing the quantum of the amount payable to the employee, further orders that interest at a certain rate be also paid over and above the due amount, this Seminar is of the view that the additional amount ordered to be so paid by way of interest is not, in fact, interest and such person can take and use the amount.
    6. As regards the question of interest-bearing development loans advanced by nationalised banks, in view of the peculiar context of India, this Seminar recommends to the Islamic Fiqh Academy to constitue a committee of religious scholars and other experts and assign to it the task of examining the issue in all its dinensions and give its findings on the issue.

     

    Bank Interest:

    Participants of the Seminar were unanimously of the opinion that the interest paid by the banks undoubtedly comes under Riba. Some questions came up during the Seminar as to whether the amount of the interest should be widrawn or left in the bank? Furthermore, in case it is widrawn from the bank, how the Bank-paid interest should be spent?
    It was agreed that the accruing interest should not be left with the bank. Instead it should be widrawn to be used under the following heads :

    1. The interest paid by the banks may be spent on the poor and needy without expecting any recompense from Allah.
    2. The above mentioned amount in any way may not be spent on any mosque and its related requirements.
    3. Majority of the participants held the opinion that the above mentioned interest may be used for social welfare activities as well as on paying obligatory aims. However, some Ulama opinied to limit its use for the poor and needy persons only.

     

    Commercial Interest and the Islamic Shariah:

    After taking into account all the relevant facts and after comprehensive discussions, the Seminar arrived at the following conclusion regarding consumptional and productive loans and reasonable and unreasonable rates of interest.

    The Shariah has categorically prohibited interest on all types of loans, consumptional as well as productive. It is sheer misunderstanding that the Shariah prohibits interest only against consumptional loans and allows it on productive loans. It is entirely incorrect that productive loans did not exist during the period of revelation of the Quran. It has been established historically that the Arabs of the Jahiliah period as well as the nations who had commercial relations with pre-Islam Arabs had well established practice of receiving and paying extra on productive loans. Moreover, even if the practice of obtaining productive loans and extra payment thereupon is not to be found during the period of revelation of the Quran, it could not be made to mean that the Shariah permitted interest or prohibition of interest on such loans do not exist. The Quran, the Sunnah, the Ijma, the Qiyas and the precedents of unbroken chain of practice of the Ummah, each one of them, declares in unequivocal terms that the motives behind receiving or advancing a loan is entirely irrelevant to the prohibition of interest.

    Further, the prohibition is in no way affected positively or negatively, by the rate of interest being reasonable or unreasonable (moderate or excessive). The Shariah does never admit that interest may be permissible if the rate of interest is reasonably low and prohibits only when it is unreasonably high. The Shariah refuses to make any such distinction. Both are equally prohibited according to the Islamic Law.

    Dar-ul-Islam, Dar-ul-Harb:

    Dar-ul-Islam, Dar-ul-Harb and determining the status of other Countries According to Shariah

    The issue of permissibility of Uqood-e-fasidah (Islamically invalid deals), the absence of the condition of any property being ‘protected property’ (Amwal-e-masoom), necessary for the applicability of the doctrine of interest,and hence interest becoming permissible in a Dar-ul-harb; whether India is Dar-ul-harb or not; whether the republic of India, if treated as Dar-ul-kufr, falls in the category of those countries in which properties do not bear the character of protected property (Amwal-e-masoom), these and othe related issues came under consideration in the Seminar form various angles. Although the general trend of thoughts in the Seminar was that interest-bearing deals cannot be held as Islamically permissible in a country like India, still in view of the divergent opinions expressed through papers presented at the Seminar and in the discussions there at, the Seminar called upon the Islamic Fiqh Academy to set up a committee consisting of Ulama and Jurists, and those well-versed in contemporary political science, constitutional law and laws relating to International relations. This Committee should be asked to determine the nature, character and categories of different prevailing forms of government in the light of constitutional guidelines provided by Islam and Islamic Law of International Relations and how each one of these should be treated Islamically.

    The Committee should also look into the issue of mutual relationship between any two countries and accordingly their position vis-a-vis one another, and the nature of lagal relationship in the light of the Shariah of Muslims vis-a-vis the government of the country of which they are the citizens and vis-a-vis the other citizens of the country.

    The Committee should also consider if there can develop a situation when interest-bearing and other Islamically invalid deals (Uqood-e-fasidah) between Muslims and non-Muslims could become permissible.

    Project for Interest-free Banking:

    The Second Fiqh Seminar, while considering the conclusions arrived at the Seminar was of the view that setting up of interest-free banks and establishing such societies at local levels which help in such interest-free investment as are within the paramenter of Shariah can be beneficial for Muslims. However, for this purpose it is necessary to provide such working models which are not in conflict with Shariah. The Seminar takes note of the fact that some such institutions are already functioning at different places but there is no coordination between them nor is there uniformity in their method of working. Hence, this Seminar feels it desirable that a comprehensive project report on feasibility and working of an interest-free bank be prepared keeping in view the contemporary banking principles and the injunctions of Shariah, so that not only Muslims are rescued form the curse of interest and be the source of economic strength for themselves but may also be a boon and blessing for other backward and weaker sections of humanity as is the wont of the Muslim community being the follower of Prophet Muhammad (Sallallahu Alaihi wa Sallam), the Benefactor of mankind.

    For this purpose, this Seminar calls upon the Islamic Fiqh Academy to constitute a committee consisting of Ulama, Jurists and other experts in the field of banking and economics and commerce and assign to it the task of preparing a project report on the subject.

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