Muslim Personal Law: Should it be

politicised?
Author: R.Upadhyay
Publication: South Asia Analysis Group
Date: April 21, 2003
URL: http://www.saag.org/papers7/paper666.html
Communal polarisation, which was responsible for partition of this sub-continent
inflicted a permanent wound in the Hindu-Muslim relations in this region. The post
partition political leadership in India initiated extraordinary measures of constitutional
protection to minorities for healing this wound. They included 45 Muslims in the
constituent assembly, which drew up the present constitution and Sir Mohammed
Sadullah was a member of its drafting committee. Indian constitution provided equal
rights to all citizens irrespective of their religion and Article 44 recommended Uniform
Civil Code for all. The Government expected that over a period, Muslims enlightened
with a modern worldview would come forward for full implementation of this article of
the constitution. But despite a ceaseless debate since Independence, the issue is still
unresolved and has exacerbated the continuing communal divide in this country.
Incorporating special privileges to the minorities with constitutional protection of their
rights and treating them as equal citizens of the country in a communal environment was
a laudably good will gesture of the Hindu dominated polity. Muslim representation in
legislative, executive, judiciary and all the democratic institutions of the country showed
that such good will was honestly practised. There was an expectation in some quarters
that this will be reciprocated. But to them, the experience in the last fifty-four years of
showed that the Muslim leadership did not take any initiative. Instead any attempt in this
direction was strongly resisted by the Muslim community and successive political
leadership in the country ignored this vital issue on the plea that so long Muslims do not
want, they would not enforce the constitutional commitment of Article 44 made to the
people of India. Consequently Hindu-Muslim relation in post-colonial India is seen to be
moving in a direction to what was obtained on the eve of partition. This is sad and the
political leadership of both sides of the divide is to be blamed.
The on going widening communal divide in India due to thoughtless politicisation of
Muslim issues since Independence has now reached a stage when it is getting out of hand
making emotional integration of the two major religious communities more and more
beyond the realm of possibility. No one can deny that it is detrimental to the well being
of our country.
Indian Muslims constitute the second largest majority of the country but unfortunately
they are still found in a state of quandary. Asaf A. A. Fyzee, a noted Muslim writer and
internationally known authority on Islamic jurisprudence maintained, "Islam, in its
orthodox interpretation has lost the resilience needed for adaptation to modern thought
and modern life" (A Modern Approach to Islam, 1963, page 105).
Totally depending on elite and Ulama of their community for guidance, the Muslim
masses do not appear to be looking anything beyond Islam, which is viewed by them as a
complete way of life. Even though the Muslim community is divided into innumerable
sects and groups due to different interpretations of Islamic texts, they are found to be
united in getting agitated over even a rational change on certain issues linked to their
community. Taking advantage of the situation the upper strata of Muslims have exploited
and continue to exploit the commoners in the community by politicising these issues for
their self-seeking interests.
By and large Indian Muslims have linked their religio-cultural identity with issues like
Personal Law, Babri Masjid, Urdu, minority character of Aligarh Muslim University,
family planning, right to prayer in archaeologically protected mosques, madrasa
education, waqf and haj subsidy. Any attempt to rationalise these issues is viewed by
Islamic radicals as a danger to the identity of the community. Though, such issues may
not have much relevance to the modern concept of civilisation as well as the spiritual
aspect of Islam, their politicisation by self-seeking Muslim leaders and 'secular' politicians
since Independence have often resulted in political quibbling causing irreparable damage
to the society and to national integration.
There might be some historical and social reasons behind these issues but their
politicisation has been largely responsible for the aloofness of Muslims from the national
mainstream in the post colonial democratic polity. The subjective attitude of the Muslim
elite and their 'secularist' supporters has aggravated the Hindu-Muslim divide.
The Shariat (Shariah /Shariath) law (popularly known as Muslim Personal Law in India)
is an Islamic term, which "designates the rules and regulations governing the lives of
Muslims, derived mainly from Quran and Hadith (Encyclopaedia of Islam- Lieden Brill).
Quran is the main source book of Islamic laws but this law "as it is known and practiced
today was compiled more than a hundred years after the death of the Prophet" (Muslim
Politics in India by S.K.Ghosh, 1987, page 46). "The broad outline of the Shariat was, no
doubt, drawn from Quran, but for details and the newer issues which arose from time to
time, in differing circumstances recourse had to be made to sources other than the Quran
like the Prophetic traditions or practice (Sunna), consensus (ijma), and lastly creative
interpretation (Iztihad)" (Ibid. page 47).
Noor Mohammad Pasha in his booklet entitled 'The Muslim Personal Law' (1986, page1)
maintains, "It embraces all human actions. For this reason it is not law in modern sense.
It is fundamentally a Doctrine of Duties - a code of obligations, which enjoins religious
injunctions also. Legal consideration and individual rights have a secondary place".
Of the various Muslim issues referred to, Muslim Personal Law is most contentious for
Muslim politics in India. Muslims all over India blindly support their traditional leaders,
who have all along been maintaining their pressure on the government to keep its hands-
off their Personal Law. Ironically, from the very day Constituent Assembly took up
drafting of Indian Constitution, its Muslim members ruled out any interference in
Muslim Personal Law. Unfortunately, Jawahar Lal Nehru accepted the Islamic
fundamentalists of Muslim organisations like Jamiyat-Ulama-e-Hind (JUH) and Jamaat-e-
Islami Hind (JEIH) as the sole voice of Indian Muslims and allowed the issue to simmer
as a part of vote bank politics.
There may be a sizeable number of enlightened Muslim intellectuals, who would be glad
"if the personal laws of Islam were altered to conform to the modern concept of justice
throughout the world" but they lack courage to face the challenge of Muslim
fundamentalists in this regard. Their passive role in handling the problem is therefore
nothing but intellectual cowardliness. The Muslim masses are caught between the slogans
of secularism and communalism but no genuine move was ever initiated by their leaders
to awaken them from their dogmatic slumber.
Muslim intellectuals like Iqbal A. Ansari agrees that "some of the provisions of existing
Shariat Act are unjust to women and are not in conformity with Islamic injunctions and
principles relating to divorce, maintenance and polygamy (The Muslim Situation in India
- Edited by Iqbal A. Ansari, 1989, page 10). But instead of initiative genuine move to
reform such law he ridiculously suggests abrogation of Article 44. "If therefore Article 44
of the Directive Principles is abrogated, the mischief of the common code for a unified
nationhood would be removed. In the absence of Article 44, Muslims I hope would be
better disposed to bringing about changes in their Personal Law in conformity of modern
norms of social justice as well as of Islam" (Ibid.). This shows that Ansari wants Article
44 to be abrogated first and then expect change in the medieval mindset. Is this
workable?
The term Muslim Personal Law was initially used by Warren Hastings, when the then
British administration in India abolished the jurisdiction of Qazis over the prevailing
Islamic laws under Muslim rule. Besides, the Imperial Power also invalidated a number of
prevailing Islamic laws pertaining to crimes like theft, murder and adultery and Law of
evidence and replaced them by Indian Penal Code, Criminal Procedure Code and
Evidence Act. They ignored the protests of the Muslim clergies and there was hardly any
effective resistance. The British did not replace the family laws like inheritance, marriage
and succession based on the religious scriptures of both the Muslims and the Hindus, as
those had no impact on imperial authority. Gradually, both the Muslims and the Hindus
accepted this change. In 1939, Dissolution of Muslim Marriage Act was passed which
gave some relief to Muslim women to divorce their husbands under some specific
circumstances, which included - if the whereabouts of husband is unknown for four
years, non- payment of maintenance for two years, violation of Quranic sanction of
giving equal treatment to wives and so on. There was no demand from the Muslim
community for replacement of these laws framed by British after Independence.
None of the successive governments in post colonial India ever initiated any change in
the Shariath law as it operates here today under the nomenclature of Muslim Personal
Law and the Muslim leadership has now acquired a vested interest in it. Indian Muslims
view the constitutional commitment to Uniform Civil Code under Article 44 as an
attempt to dilute the cultural identity of the community. The Muslim clergies have been
directly or indirectly been putting pressure on the Government to abrogate this article.
Article 44 of Indian Constitution says- "The State shall endeavour to secure the citizens a
Uniform Civil Code throughout the territory of India". Uniform Civil Code means that
there should be common law in the country to regulate the issues like marriage, divorce,
maintenance, gift, dower, legitimacy, adoption, inheritance, will and endowment of all the
citizens in India irrespective of their religion. B. R. Ambedkar, K.M. Munshi and Alladi
of Constituent Assembly were the main champions of this code and accordingly it was
incorporated as Article 44 of the constitution. This effort on the part of the State was to
integrate the Indian society but it is still viewed by Indian Muslims as an attempt to dilute
the cultural identity of the minority group of the country.
The post colonial Government passed Hindu Code Bill and enacted it banning polygamy
and transforming a number of traditional Hindu family laws. It was done even when the
then President Dr. Rajendra Prasad had returned it to the Parliament for review. The
majority community however, viewed such an approach of the Government putting
restriction on Hindus but keeping the Muslims away from it on the basis of religion and
denial to Muslim women the benefit from monogamy as guaranteed under law to their
Hindu counterparts contrary to social justice as discriminatory. The Hindu code Bill was
passed by the country without any assertive resistance by the majority community but the
Muslim leadership never made any attempt for reforms in Muslim Personal Law. Rather
they demand abrogation of Article 44 on the plea that "the risk of interference will hang
over our head like Damocles' sword and the demand for enforcement of Directive
Principles relating to common civil code will intensify." (Quote from Radiance an organ
of Jamaat-e-Islami dated 25 June, 1972 in 'Muslim Politics and National Integration ' by
H.A.Gani, 1978, page 94-95)
In early sixties, the Union cabinet received some suggestions for reforms in Muslim
personal law on the plea of changes that have taken place in Muslim countries like
Tunisia, Egypt, Pakistan, Morocco, Iran and Turkey. In 1963 the Government appointed
a committee comprising Muslim leaders like Humayun Kabir, Hafiz Muhammad
Ibrahim, Muzaffar Hussain and Jamia Vice Chancellor Mohammad Mujib. The move
opened the gate for debate on this issue. Tahir Ahmad, the then Associate Professor at
Indian Law Institute carried out a survey on the state of Muslim personal law in twenty
countries and found that Shariat was not applied uniformly in all these countries.
"Turkey, Cyprus, Tunisia, Algeria, Iraq and Iran do not give a Muslim husband right to
divorce his wife unilaterally. A Muslim husband seeking divorce from his wife must apply
to the court of Law"(Muslim Politics and National Integration by H.A.Gani, 1978, page
115). This showed that flexibility is possible. This issue also figured at the International
Congress of Orientalists in Delhi in 1964, which stirred a countrywide debate on the
subject.
Contrary to the changes in Islamic rules that occurred in various Muslim countries, the
Muslim leadership in India with the support of some Islamic institutions are propagating
that change in Muslim Personal Law is tantamount to infringement of the religious rights
of the followers of Islam. They have gone to the extent of declaring that any change
would amount to an attempt of Hinduisation of Muslims! To put an end to the endless
debate on the issue of Muslim Personal Law, they organised a wide range of seminars
and conventions in early seventies, aggressively opposed the move and thus forced the
Government and the committee constituted in 1963 to place the issue in cold storage.
JUH leader Maulana Asad Madani viewed the plea for reform as a "mask for Jana Sangh's
sinister designs to exterminate the Muslim community from India" (Legacy of a Divided
Nation by Mushirul Hasan, 1997, page 248). The Working Committee of JUH, which is
being projected as an organisation of nationalist Muslims in its resolution in April 1970
maintained:
"The Muslims consider the personal law to be an essential part of their religion and stand
therefore for status quo" (Muslim Politics and National Integration by H.A.Gani, 1978,
page94-95). The no-change Muslim group cite Surah 33, verse 37 in support of their
stand. It says, "It is not open to a believing man or a believing woman, when Allah and
his messenger have decided a matter, to exercise their own choice in deciding it" (Ibid.,
page 95). They argue that no one is competent to change or amend the explicit
provisions of Quran, which is divine.
Countrywide protests of some Muslim leadership against the Supreme Court verdict in
Shah Bano case in 1985 forced the then Rajiv Gandhi led Congress Government to
amend the constitution. Prime Minister Rajiv Gandhi did not allow Arif Mohammad
Khan, Minister of State in his cabinet even to speak against the Muslim Women Bill,
which was passed to undo the Supreme Court verdict. This was a marked departure from
the Nehruvian tradition of non-interference in the matter of Muslim's faith. In a way it
was a victory of Muslim fundamentalism that worked as a catalyst for consolidation of
Hindu votes and decline of the Congress party.
Some of the Muslim intellectuals like M.C.Chagla, A.A.A.Fyzee, Iqbal A.Ansari, Hamid
Dalwai, M.R.A.Baig, H.A.Gani, Moin Shakir, Mushirul Haque, Rafiq Zakaria, Asghar Ali
Engineer and others often expressed their views in support of transformation of Muslim
society and its Personal Law. However, in the absence of any unified and assertive role,
their voice remained a wild cry against the high pitched voice of Muslim extremists,
whose war cry of 'Islam is in danger carried the day.
Fyzee, in his book entitled 'A Modern Approach to Islam- Oxford Press Delhi'
maintained:
"The law of divorce, whatever its utility during the past was so interpreted that it has
become the one sided oppression in the hands of the husband - and almost everywhere
Muslims are making efforts to bring the law in accordance with modern ideas of social
justice." He also quoted Begum Sharifa Tayabji saying in her presidential speech in
Maharashtra State women conference (Pune, December 27,1971), "if Rasul Allah is to
appear in person before us he would roll his head in shame over our performance".
During his inaugural speech in the same Conference he also said, "the Muslim personal
law as practised under the Shariat Act had brought untold miseries to Muslim women
should be discarded forthwith in favour of a common civil code" (The Muslim Dilemma
by M.R.A. Baig, 1974, page 20)."Fyzee is the first Muslim Indian courageous enough to
contend that Muslim law in India is not based on the Shariat but was introduced by the
British for political reasons" (Ibid.).
In 1973 M.C.Chagla said, " in secular India, everyone should have equal rights and
polygamy should be abolished" (Muslim Political Issues And National Integration by
H.A.Gani, 1978, page88). Similar views were expressed by Justice Y.V.Chandrachood,
who said, "one law of marriage for all would be an important step towards national
integration" (Ibid.).
Muslims in non- Muslim majority areas always believe that "they are a state within a state
and a society within a society. Islamic personal law runs contrary to the modern notions
of Human rights. Its anomalies are obvious to any one except Muslim males" (Hamid
Dalwai in his book Muslim Politics in India, 1969, page 87).
Rafique Zakaria in his book (The Widening Divide, 1995, page 234) said, "Muslim
Personal Law is strictly based on the Quran; it is a bunch of interpretations and traditions
compiled by a group of Maulawis at the instance of Lord Macaulay".
Asghar Ali Engineer, a noted writer of repute observed, "Today the Muslim leadership in
India has converted the question of change in Muslim Personal Law primarily to their
political advantage. It would be wrong to argue that Muslim Personal Law is immutable
as it is divine". He also referred to Maulana Abul Kalam Azad and said that Maulana
Abul Kalam Azad in his commentary on the holy Quran makes distinction between Din
(essence of religion) and Shariat (Islamic legal code, rituals etc); only the former is
immutable while the latter is not" (Indian Muslims by A.A.Engineer, 1985, page 288).
Engineer also emphasised on genuine modernism against pseudo-modernism, which is
often manifested through vulgar ostentation, laxity of morals and similar, other traits
(Ibid.).
Against the backdrop of the observation of Muslim intellectuals referred to, reform in
Muslim personal law is not against the concept of Islam. But, ironically almost all the
Muslim organisations in India are preoccupied with issues like Muslim Personal Law,
Urdu and Aligarh Muslim University by linking them with their religious identity. In fact
they constituted the All India Muslim Personal Law Board to resist any move by the
Government for reform in their personal law. The Board was expected to initiate a
debate on this issue within the community but no achievement in this regard has ever
come to notice. Had Muslim leadership been assertive in convincing the members of the
community for acceptance of the Directive Principle of Indian Constitution on Uniform
Civil Code, they would have perhaps diluted Muslim communalism to a great extent, and
effectively countered the root cause of Hindu communalism. Such go slow attitude of
Muslim intelligentsia is therefore being viewed by their Hindu counterpart as "an
_expression of their fundamentally separatist character" (Mushirul Haque in his paper
published in 'Muslims in India edited by Zafar Imam, 1975, page220)
The argument of Muslim fundamentalists that Islamic laws cannot be changed does not
appear to be based on sound logic. A number of Muslim majority countries like
Morocco, Tunisia, Syria, Turkey and Iran took up measures to prohibit polygamy, which
shows that there is enough scope for transformation of Muslim Personal Law. The
enlightened Muslims in India are found to be in favour of abolition of polygamy but
ironically, they do not dare to open their mouth due to fear of incurring the wrath of
Ulama.
The prevailing Hindu-Muslim scenario shows that Muslim orthodoxy is unequivocally
opposed to any change in Muslim personal law. The saner voice of liberal Muslims is so
feeble that it is hardly audible to common Muslims still under the bondage of Islamic
radicals. Political parties particularly the Congress have no interest to solve this vital
problem because of their vote bank compulsion. Muslims suspect the BJPs voice as a
move to hinduise the Muslim society. The Leftists support the Muslim fundamentalists,
as they do not have any ideological conviction on Indian nationhood. By and large Indian
media under the influence of leftists is subjective. Thus, Muslim mass is found confused
due to politicisation of the issue of their personal law.
Keeping in view the complexity of this problem, the only ray of hope lies with the honest
and unified efforts of liberal Muslims. Exceptional Muslim intellectuals of true nationalist
and secularist Indian tradition like M.C.Chagla, President Dr. A.P.J.Kalam and Hamid
Dalwai unfortunately have no space in Muslim society dominated by fundamentalists.
But without an emergence of such strong group of assertive Muslim leadership with
nationalist and secularist Indian tradition for launching an aggressive movement for
democratic liberalism to free the Indian Muslims from their medieval psyche, the root
cause of their plight, they will continue to cling to medievalist obscurantism.
Spurt on Islamic studies since the closing decades of twentieth century is a silver lining,
which has provided an opportunity for the secular Muslims to initiate an aggressive
debate among the common Muslims, who are the main victims of the on going Hindu-
Muslim confrontation. They can transform this debate into a social movement for
scientific interpretation of Islam with the sole agenda to secularise their community
against the communal agenda of Muslim fundamentalists. For this, they should be extra
cautious against the political parties particularly the Leftists, who may like to infiltrate in
the movement for their self-seeking interests. Muslim organisations like JUH, JEIH, All
India Muslim Majlis -- Mushawarat, All India Muslim Personal Law Board and others
have caused more harm to Muslim society than the RSS or the BJP. Hamid Dalwai in his
book (Muslim Politics in India, 1969, page 91) has perhaps rightly suggested, "if Muslim
communalism is effectively eliminated,! the root cause of Hindu communalism will be
destroyed".
The need of the hour is to de-politicise all the Muslim issues, which are detrimental to
national integration. For this, an aggressive but meaningful campaign as part of a larger
project aiming at creating a critical class within the Muslim society is to be evolved by the
Muslim intellectuals by a scientific and modern interpretation of Islamic scriptures. Let
the Muslim Personal Law be the starting point.