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[Op-Ed article]How Personal Is the Law?

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[Op-Ed article]How Personal Is the Law?
Traveler
07/28/03 at 11:38:14

  something of interest to indian muslims


How Personal Is the Law?
M.J. Akbar

Who said that Indian Muslims must “reinterpret the foundational legal principles in the light of their own experience and the altered conditions of modern life?” The chief justice of the Supreme Court of India, V.N.Khare? The prime minister of India, Atal Behari Vajpayee? The chief of the Rashtriya Swayamsevak Sangh, K. Sudarshan?

The correct answer might shock some of the hard-liners who have become self-appointed arbiters of the destiny of Indian Muslims. This was the view of a philosopher-poet who took Mirza Dagh as his mentor, stirred Muslims as no one before had done with epic nazams like Shikwa and Jawab-e-Shikwa, received a knighthood in 1922, and presided over the Allahabad session of the All India Muslim League in 1930 where in his presidential address he proposed that “Punjab, North-West Frontier Province, Sindh and Baluchistan be amalgamated into a single state.” No one would call Sir Muhammad Iqbal a kafir. When he died in Lahore on April 21, 1938 the community honored him with a tomb in the compound of the famous Badshahi mosque built by Aurangzeb.

Iqbal elaborated in his seminal analytical work The Reconstruction of Religious Thought in Islam: “The teaching of the Qur’an, that life is a process of progressive creation, necessitates that each generation is guided, but unhampered, by the work of its predecessors, should be permitted to solve its own problems.”

It is a myth that Islamic law is not amenable to reinterpretation. Islam has always been a dynamic faith, not a static one, and principles have been placed in context whenever needed. The oft-cited instance of the Qur’anic injunction against usury is as good an example as any. The Qur’an, which Muslims treat as the word of God, is unambiguous about this evil.

Verse 275 of the second Surah, Al Baqarah, begins: “Those who devour usury will not stand except as stands one whom the Evil One by his touch hath driven to madness.”

The next verse is equally specific: “Allah will deprive usury of all blessing, but will give increase for deeds of charity, for He loveth not creatures ungrateful and wicked.” The translation is by Abdullah Yusuf Ali, who points out in a note: “Usury is condemned and prohibited in the strongest possible terms. There can be no question about the prohibition. When we come to the definition of usury there is room for difference of opinion.” It is this “difference of opinion” that has enabled all but a thin fringe of Muslims to take interest from banks without feeling that they have defied a Qur’anic injunction.

Then there is Verse 38 of the fifth Surah, Al Maidah, on theft: “As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime…” In the time of Jesus, it will be remembered, thieves were crucified; and even as late as in the 19th century in Britain, you could be hanged for theft. No one in the Islamic world today insists on cutting off thieves’ hands. Time has created imprecision even in Saudi Arabia. If there can be reasonable reform without sacrifice of principle, then there can be reform in marriage and divorce situations as well.

Islamic law is based on the injunctions of the Qur’an, and the practice of the Prophet(pbuh) who was both a messenger of Allah and a ruler of men. But this canon has been subject to seven yardsticks: consensus, judgment, analogy, equity, public interest, custom and legal reasoning. Each of these is a parameter of change, without sacrifice of any basic principle. The principle is that theft should be punished, but both judgment and public interest rule that theft can be curbed in the 21st century without recourse to slicing off hands. The social purpose of law is to curb the evil, not torture the individual.

This is not the way the All-India Muslim Personal Law Board, which has become the first and last word in Muslim affairs, sees either law or life. But before we proceed, where did it come from? What sanction does it have? Do its members get elected by any forum or by the Indian Muslim community? On what basis does it call itself representative? How is its executive appointed?

Judging by the way it behaves, it might seem as if the board has been controlling the destinies of Indian Muslims ever since Muhammad bin Qasim stepped into Sindh in 711. To discover the truth we have to step a mere 12 centuries forward.

In 1972, the late Qari Mohammed Tayyab suggested the formation of a lobby group at a meeting in the seminary of Deoband. A convention was held in Bombay on December 27-28, 1972 to establish the All-India Muslim Personal Law Board (AIMPLB), with Tayyab as the first president. It had an uncomplicated agenda: to thwart any effort to interfere, by either the government or the courts, with its interpretation of the Islamic law (or Shariah). In effect it meant that this body of clergy and like-minded politicians and activists would oppose any change, even if that change was beneficial to the community. It gave to itself veto rights on Islamic law; its continual slogan was “Islam is in danger!”; and its mission was to herd an insecure community into a vote bank that it would deliver to those who were ready to recognize its sole spokesman role for the Indian Muslim community.

So far it has held 10 all-India sessions. Its 41 executive members are not elected by Muslims, but inducted in the manner of a private club. It would be unfair to suggest that everything it has done is necessarily regressive, but it would be fair to say that this has been its broad thrust, as can only be expected of a body so heavily weighted by the influence of the clergy. Its attitude toward social reform is best summed by the position it took on family planning.

It is interesting that political parties ideologically close to the board, like the Muslim League, supported the imposition of the Emergency by Mrs. Indira Gandhi in 1975. But what might be called the “Muslim Parivar” changed tack when Mrs. Gandhi used the Emergency to push some overdue social programs like family planning.

At an extraordinary meeting held on April 17-18, 1976 the board declared that sterilization was haram or must be prohibited.

In all matters of family law the board has taken a male-oriented view. Its most dramatic success was the blackmail of an inexperienced Rajiv Gandhi over the Supreme Court decision in the Shah Bano case. The board mobilized Muslims and forced Rajiv Gandhi to deny a poor, ageing divorcee minimal maintenance from her estranged husband.

I dare say that if among Muslims only women for some reason were thieves, the board would have demanded that their hands be cut off.

However, the board has not suggested that Muslim thieves should be awarded the Qur’anic punishment irrespective of how Indian law treats non-Muslim thieves. It accepts reform for thieves, but not for divorcees. I find it appalling.

You would not of course expect India’s political class to point out any such inconsistency. That would be detrimental to its electoral interests.

One of the great tragedies of Indian democracy has been the manner in which secular parties — and I do not place sarcastic quotation marks around secular, because they are genuinely secular — have insulted Indian Muslims by handing them over to mullahs. They have thereby expanded a tendency into a pervasive fact. It is a travesty to treat Indian Muslims as single-dimension voters. As in so much else, this was first done by the Congress; but the non-Congress parties have been no better.

The Personal Law Board became a serious political player after Shah Bano. This continued with the Babri Mosque dispute, where it continues to dictate on behalf of the Muslims without any democratic reference to what Muslims might actually feel. It is perfectly possible that the overwhelming majority of Muslims might agree with the hardliners in the executive body of the board, but there is no methodology to determine this.

In fact, the problem with this dispute now is that it is in the clutches of the board and organizations like the Vishwa Hindu Parishad (not to mention social arsonists like Parveen Togadia) who are determined to shape the future only on the basis of their limited agenda. India is under siege from their veto.

The tension between change, reform, tradition and law is a familiar dynamic of the last two centuries; it is a process that long precedes the arrival of democracy. Justice Khare’s judgment on the need for a common civil code reaffirms a principle laid down in the Constitution, but falters when it ignores the complexities of social change.

At one level the court has not forgotten the scars of Shah Bano, and nor should it. The success of fundamentalists in blocking reform in Muslim personal law is another instigation. But there are other issues that need consideration before the demand for an immediate uniform civil code becomes a battle cry.

All communities are as reform-sensitive as Muslims, particularly where tradition has generated vested interests. Hindu law itself is not as uniform as some reformists would desire it to be.

When is the law called an ass? When it has legal reasoning on its side, but is bereft of consensus, judgment, equity and public interest.

When a horrendous case of injustice is perpetrated in the name of law, as in the Shah Bano case, then you know that the time has come for reform.

But equally, it is the duty of society’s leaders to build consensus around reform. Of course when those in authority are not leaders then this become difficult.

Sir W.H. Sleeman is the much-vaunted British Raj officer who allegedly eliminated thugs from central India. I do not recommend his memoirs (Rambles and Recollections of an Indian Official) to those with high blood pressure; Sleeman is only another pompous windbag when it comes to “natives”. But he is extraordinarily perceptive about the subtleties of administration. He tells the story of Charles Harding, of the Bengal Civil Service, who in 1806 prevented the widow of a Brahmin from committing suttee. But a year later, her family prevailed and she was placed on a funeral pyre at Ramnagar, some two miles upstream from Benaras. As soon as the fire was lit, she jumped into the river; her clothes kept her afloat, and the current took her to the city where she was rescued by a police boat. Benaras was in uproar, and all the worthies suggested that the young officer return the widow to the pyre if he wanted to preserve the peace. Harding exhausted all the rational arguments, in vain. The crowd still bayed for suttee. Suddenly he had an inspiration. He had not saved the widow, he told the crowd; Mother Ganges had saved her. How else could she have survived without knowing how to swim? Her sacrifice on the pyre was obviously unaccepted to the river, or the Ganges would have received her.

The point was unanswerable. The widow survived. There is no substitute for persuasion.

In 1826, Lord Amherst asked for the views of seven European district magistrates of central India on whether a ban on suttee would be acceptable to the people. All seven said it would not. But when Lord William Bentinck did ban suttee a few years later, not a murmur was heard. The British Raj clearly had a motto: Just do it.

Arab News Opinion 28 July 2003
Re: [Op-Ed article]How Personal Is the Law?
ascetic
07/28/03 at 14:19:39
[quote]It is this “difference of opinion” that has enabled all but a thin fringe of Muslims to take interest from banks without feeling that they have defied a Qur’anic injunction.
[/quote]

I'm not so sure that it's a "thin fringe of Muslims" who don't consume riba from banks. IMHO, the article is far from convincing. It's the old case of "change-the-law to suit us" rather than "reform ourselves so that the laws would be effective for us".


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