Privacy in Islamic Law in the Modern State

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Guest contributors Vidusha Mardi and Bhaira Acharya examine issues of privacy and the state in Islamic law with the baseline argument that privacy is the default rule in Islamic law and that the public sphere, into which the state may intrude, is the exception to this rule. As they put it, Islamic law recognizes that “every society [must] impose certain requirements on individuals by the law and by societal norms,” but anything not explicitly located within the worldly public sphere is assumed to reside within the domain of the private sphere. While the individual’s relationship with the divine demands that she always “ordain good and forbid evil,” state intrusion could be considered a trespass on a relationship meant to remain between the individual and the divine. Such invasion is, in the opinion of many modern jurists, “‘exactly what Islam has called as the root cause of mischief in politics.'” Their views come from a longer report on privacy in Islamic law written for the Centre for Internet & Society in Bengaluru, India:  Identifying Aspects of Privacy in Islamic Law.

According to the doctrine of sharīʿa, every aspect of life is deemed to be private unless shown otherwise. The public sphere is that in which governmental authority operates, making it both transparent and open to scrutiny and observation. Since its inception, Islam has considered the idea of governance with reasonable scepticism, ascribing to the view that there is no concept of a human ruler beyond reproach. This perhaps gave impetus to the idea of a private sphere as one that is inhabited exclusively by an individual and the divine, excluding any interference of the State; except with permission from religious law. In Islamic belief, a pious individual had submitted himself to God, and not the worldly State. Hence, all aspects of his life will align with the tenets of Islamic law and in pursuance with the will of God. Any failure to perform religious duties on the part of a Muslim is beyond the scope of another; it is only a consideration between him and the divine. It is believed that the Prophet said,“Those, who acknowledge God in words, and not at heart, do not find fault with their fellow Muslims. The wrongdoing of those who do so become the subject of God’s scrutiny, and when God looks into someone’s wrongdoing then all shall be truly exposed” The individual is bestowed with complete freedom of action in the private sphere, subject only to the will of the divine. To govern another is wholly beyond the capacity of any individual, and this forms a pervasive theme in Islamic jurisprudence.

Islamic Law recognizes that it is inevitable for every society to impose certain requirements on individuals both by the law and by societal norms. In respect of a public domain, Islam prescribes an amalgam of requirements of a Muslim community and the teachings of Islam. While committing sins in private is beyond the scope of public or governmental scrutiny, committing a sin in public amounts to a crime, meriting worldly punishment.

Islamic law provides for an individual’s obligations to the divine at all times, and to the state in matters within the public domain. This is the most striking difference between Islamic law and modern law, as the function of enforcement of the law and punishment are forfeited to the state in a modern legal system, by virtue of the social contract. However, in Islamic societies, the concept of social contract does not exist. Instead, an individual’s obligations lie to the state only if acts meriting worldly punishment occur in the public sphere. It is this distinction in the obligations of individuals that leads to conflicts between the application of Islamic law and modern law.

The Quran is replete with rules for all believers to ordain good and forbid evil (al-amr biʾl-maʿrūf wal-nahy ‘an al-munkar). This divine injunction is a restriction of freedom in the private sphere. The notion of privacy in the public sphere was tested through the office of the muhtasib, or compliance officer. These officers were appointed to ensure that the quality of life is preserved in Islamic societies. Personal or private matters which were visible in the public realm were liable to scrutiny from the muhtasib as well. However, this does not extend to matters such as surveillance and spying even on the authority of the state. The Prophet, according to the hadith of Amir Mu’awiyah remarked, “ If you try to find out the secrets of the people, then you will definitely spoil them or at least you will bring them to the verge of ruin.” In fact, modern jurists admonish the idea of surveillance as “exactly what Islam has called as the root cause of mischief in politics.”

Bhaira Acharya is a lawyer and public policy consultant interested in privacy law, Internet freedom, and cyber security. He joined the Bar in India in 2004, practised in the Indian Supreme Court, and advised the Centre for Internet and Society. He has law degrees from the National Law School of India, Bangalore, and the University of California, Berkeley. He is based out of Washington DC and tweets at @bhairavacharya.

Vidusha Mardi is a Programme Officer at CIS, working primarily in the areas of internet governance, privacy, freedom of expression and openness.  She graduated in 2015 with a degree in arts and law. She is based out of Bangalore and tweets at @VidushiMarda.

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Aryani, supra note 34, at 13.

This indicates Sura 24 : verse 58.

Holy Quran, 24:58 – O you who have believed, let those whom your right hands possess and those who have not [yet] reached puberty among you ask permission of you [before entering] at three times: before the dawn prayer and when you put aside your clothing [for rest] at noon and after the night prayer. [These are] three times of privacy for you. There is no blame upon you nor upon them beyond these [periods], for they continually circulate among you – some of you, among others. Thus does Allah make clear to you the verses; and Allah is Knowing and Wise. (Translation from Sahih International available at http://quran.com/24/58)

Reza Sadiq, Islam’s Fourth Amendment : Search and Seizure in Islamic Doctrine and Muslim Practice, Vol. 40 Georgetown Journal of International Law 703, 730 (2008 – 2009).

Ibid. at 733. Referencing IBRAHIM ABDULLA AL-MARZOUQI, Human Rights in Islamic Law 392 (2000).

Rohen Peterson, The Emperor’s New Scanner :Muslim Women at the Intersection of the First Amendment and Full Body Scanners, 22 Hastings Women’s Law Journal 339, 343 (2011).

Holy Quran, 24:30 – Tell the believing men to reduce [some] of their vision and guard their private parts. That is purer for them. Indeed, Allah is Acquainted with what they do. (Translation from Sahih International available at http://quran.com/24/30-31).

Holy Quran, 24:31- And tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed. (Translation from Sahih Internation, available at http://quran.com/24/30-31).

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Holy Quran, 33:59 – O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments. That is more suitable that they will be known and not be abused. And ever is Allah Forgiving and Merciful. (Translation from Sahih International, available at http://quran.com/33/59.)

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Holy Quran, 49:12 – O you who have believed, avoid much [negative] assumption. Indeed, some assumption is sin. And do not spy or backbite each other. Would one of you like to eat the flesh of his brother when dead? You would detest it. And fear Allah ; indeed, Allah is Accepting of repentance and Merciful. ( Translation from Sahih International, available at http://quran.com/49/12)

Holy Quran, 24:19 – Indeed, those who like that immorality should be spread [or publicized] among those who have believed will have a painful punishment in this world and the Hereafter. And Allah knows and you do not know. ( Translation from Sahih International, available at http://quran.com/24/19)

Kadivar, supra note 33, at 666.

Ahmad Atif Ahmad, Islam Modernity violence and everyday life 176 (1st ed. 2009)

Kadivar, supra note 33, at 667.

Ibid , at 178.

Ibid.

Alshech, supra note 54, at 291.

Holy Quran, 24:27-8 – O you who have believed, do not enter houses other than your own houses until you ascertain welcome and greet their inhabitants. That is best for you; perhaps you will be reminded. And if you do not find anyone therein, do not enter them until permission has been given you. And if it is said to you, “Go back,” then go back; it is purer for you. And Allah is Knowing of what you do. ( Translation from Sahih International, available at http://quran.com/24)

Holy Quran, 2:189 – They ask you, [O Muhammad], about the new moons. Say, “They are measurements of time for the people and for Hajj.” And it is not righteousness to enter houses from the back, but righteousness is [in] one who fears Allah. And enter houses from their doors. And fear Allah that you may succeed. (Translation from Sahih International, available at http://quran.com/2)

Alshech, supra note 54, at 308.

Ibid. at 306. Referencing Ibn Abi Hatim, 8 TAF5IRAL-QUR’ANAL-‘ADHIM 2566 (Makiabat Nlilr Mustaffi 1999).

Ahmad, supra note 58, at 177.

Alshech, supra note 54, at 324.

Aryani, supra note 34, at 4. Also see Ahmad, supra note 24, at 178.

Alshech, supra note 54, at 310.

Kadivar, supra note 33, at 664.

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Ibid.

Ibid. Article 8 – “(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the right so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void

Ibid. Article 4(2)(a) – “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”

Section 509, Pakistan Penal Code (Act XLV of 1860), Available at http://www.oecd.org/site/adboecdanti-corruptioninitiative/46816797.pdf.

Section 32, Pakistan Telecommunication (Re-Organisation) Act, 1996. Available at http://www.pta.gov.pk/media/pta_act_140508.pdf.

Ibid. Section 54.

Section 25-D, Pakistan Telegraph Act, 1885. Available at http://www.fia.gov.pk/law/Offences/26.pdf.

Section 12, Pakistan Medical and Dental Council Code of Ethics. Available at http://www.pmdc.org.pk/LinkClick.aspx?fileticket=v5WmQYMvhz4%3D&tabid=292&mid=845.

http://www.sbp.org.pk/publications/prudential/ordinance_62.pdf

Section 8, Freedom of Information Ordinance, 2002. Available at http://infopak.gov.pk/Downloads/Ordenances/Freedom_of_%20Information_Ordinance2002.pdf.

Pakistan IT Policy and Action Plan, available at http://www.unapcict.org/ecohub/resources/pakistan-information-technology-policy.

Electronic Transactions Ordinance, available at http://www.pakistanlaw.com/eto.pdf.

For a more detailed account, see http://www.supremecourt.gov.pk/ijc/articles/10/1.pdf. Second draft available at http://media.mofo.com/docs/mofoprivacy/PAKISTAN%20Draft%20Law%202nd%20Revision%20.pdf.

Sections 441 – 462, Pakistan Penal Code (XLV of 1860) Chapter XVII, “Offences against Property”.

Section 5, Anti Terrorism Act, 1997. Available at http://www.fia.gov.pk/law/ata1997.pdf.

Ibid. Section 10.

Lara Aryani, supra note 34, at 21.

Julhas Alam, Bangladesh moves to retain Islam as state religion, Cns News, http://cnsnews.com/news/article/bangladesh-moves-retain-islam-state-religion.

Article 43, Constitution of Bangladesh. Available at http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf.

Section 509, Bangladesh Penal Code,1860. Available at http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=11.

Ibid. Sections 351- 358.

Ibid . Section 100.

Section 5, Bangladesh Telegraph Act, 1885. Available at http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=55.

Ibid . Section 24.

Ibid. Section 25.

Bangladesh Penal Code, 1860. supra note 95. Section 441.

Ibid. Section 442.

Ibid. Section 443.

Ibid. Section 445.

See, Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 : (1964) 1 SCR 332; Govind v. State of Madhya Pradesh, AIR 1975 SC 1378; Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264; People’s Union for Civil Liberties (PUCL) v. Union of India, AIR 1997 SC 568; X v. Hospital Z, AIR 1999 SC 495.

DoPT, Approach Paper. supra note 16.