Author: Kanchan Gupta
Publication: The Pioneer
Date: May 4, 2005
Every time secular India has demanded
that the system of personal laws based on religious injunctions should
be done away with, that Article 44 of the Constitution which enjoins upon
the Government to adopt a Uniform Civil Code should be taken for what it
was meant to be, a cornerstone of state policy in a modern nation state,
a countervailing cry has gone up, alleging that it is an assault on the
identity of minority communities.
That, of course, is a misnomer;
what those opposed to a Uniform Civil Code mean is that the state should
not interfere with retrograde personal laws that discriminate on grounds
of gender, laws which are not in tune with the social realities of the
21st century. The best example of such laws is Muslim personal law that
remains unaltered in sum and substance despite vacuous words of assurance
by leading lights of the ulema.
The All-India Muslim Personal Law
Board, which has vested itself with full and absolute powers, though it
enjoys neither legal sanctity nor official approval, to implement personal
law, at its recent conference in Bhopal has presented what is being described
as a "model nikahnama".
While self-proclaimed progressives,
who have never had to suffer the inequities of personal laws, have been
quick off the mark to hail this 14-page document as a big leap forward,
Muslim women who have been agitating against the discrimination they face
have denounced it as nothing more than cosmetic tinkering.
Lost in the debate is the crucial
fact that the All-India Muslim Personal Law Board is nothing more than
the personal enterprise of ulema and alim, apart from maulanas who teach
at seminaries. By its own admission, the All-India Muslim Personal Law
Board was established in 1972-73 "at a time when then Government of India
was trying to subvert shariah law applicable to Indian Muslims through
parallel legislation".
The immediate backdrop was the introduction
of the Adoption Bill in Parliament by HR Gokhale, then Union Law Minister.
While introducing the Bill he had described it as "the first step towards
Uniform Civil Code".
This triggered an alert among the
ulema, which immediately went on the offensive, decrying the Bill as an
attempt to dilute, to quote the All-India Muslim Personal Law Board, the
separate identity of Indian Muslims. The "risk of losing applicability
of shariah laws was real and a concerted move by the community was needed
to defeat the conspiracy," the All-India Muslim Personal Law Board says
of its history.
This is what the All-India Muslim
Personal Law Board website says: "It was a historic moment. This was the
first time in the history of India after Khilafat Movement that people
and organisations of Indian Muslim community belonging to various schools
of thought came together on a common platform to defend Muslim Personal
Law."
The first meeting to "save shariah"
was convened at Deoband at the initiative of Hazrat Maulana Syed Shah Minnatullah
Rahmani, Ameer Shariat, Bihar and Orissa, and Hakeem-ul Islam Hazrat Maulana
Qari Mohammad Taiyab, Muhtamim, Dar-ul Uloom, Deoband. At the meeting it
was decided to hold a convention at Mumbai on December 27-28, 1972.
The website provides further details:
"The convention was unprecedented. It showed unity, determination and resolve
of the Indian Muslim community to protect the Muslim Personal Law. The
Convention unanimously decided to form All India Muslim Personal Law Board.
As per the decision of the Mumbai Convention, the All-India Muslim Personal
Law Board was formally established at a meeting held at Hyderabad on April
7, 1973." The purpose: "To adopt suitable strategies for protection and
continued applicability of Muslim Personal Law, ie, Shariat Application
Act, in India".
Since then, the All-India Muslim
Personal Law Board has consistently insisted that "sharia" is beyond reach
and scope of India's courts of law. The Supreme Court's judgement ordering
maintenance for Shah Bano, an old, indigent woman thrown out of her home
and hearth by her husband who had taken recourse to the expedient, sharia
sanctioned means of pronouncing "talak" thrice, led to nationwide violent
protests engineered by the ulema and backed by the All-India Muslim Personal
Law Board.
The Congress Government, headed
by Rajiv Gandhi, instead of seizing upon the judgement to push ahead with
a Uniform Civil Code, chose to pander to the ulema. The All-India Muslim
Personal Law Board scored a huge victory when Rajiv Gandhi used his brute
parliamentary majority to steamroll the Muslim Women's Bill in 1986. This
strengthened the case for sharia more than the 1937 Act.
The All-India Muslim Personal Law
Board has been quietly consolidating its position as the only arbiter of
Muslim destiny in secular, republican India. Under the guise of bringing
about "reform" - the All-India Muslim Personal Law Board believes that
the official age of consent is bunkum and that girls should be herded into
marriage the moment they attain puberty - it has been surreptitiously working
towards the setting up of "sharia courts".
The logic is simple: Secular courts
do not have the authority to either interpret or apply sharia, which is
based on the Quran and the Hadith. That right belongs to "sharia courts"
alone. As much was stated at the All-India Muslim Personal Law Board's
conference in Bhopal when the members encouraged Muslims to take their
differences to "sharia courts" - as distinct from going to the local ulema
or alim as was the practice till now.
According to a report, "sharia courts"
set up by the All-India Muslim Personal Law Board are already functioning
in Gujarat, Bihar, Uttar Pradesh, Assam and Orissa, albeit silently and
without publicising their activities.
When "Dar-ul Qaza", the first sharia
court was set up in Ahmedabad, Gujarat, late last year, it was billed as
an institution to "end woes of Muslim litigants" in the State. "It promises
to help bring down backlog of court cases, save money, time and effort
of parties. To top it all, ensure justice without causing heartburn to
the losing party," one spokesperson was quoted as saying.
"Dar-ul Qaza here (in Gujarat) will
decide matters in the light of Islamic tenets on various issues of day-to-day
living like marriage, divorce, inheritance, maintenance," he added. In
brief, Muslims should no longer seek justice in secular courts of law.
According to Mufti Ahmed Devalvi of Jamia Uloomul Quran, Jambusar, "Being
believers of the faith, Muslims must accept the sharia tenets in resolving
their disputes irrespective of the outcome of the disputes."
Convener of the Dar-ul Qaza Committee
of the All-India Muslim Personal Law Board, Maulana Ateeq Ahmed Bastvi,
who teaches at Nadwatul Ulema, Lucknow, administered the "oath of office"
to Mufti Abdul Qayyum Jaipuri as "Shahr Qazi" of Ahmedabad. "A Muslim is
a Muslim wherever he lives in the world and there are certain things about
which he has no escaping. Following sharia is one of them," he was quoted
as saying.
So, we have a fast-unfolding situation
where the All-India Muslim Personal Law Board is setting up sharia courts
as a parallel system of justice. By the time authority in secular India
wakes up to this reality, the Government will be presented with a fait
accompli - accept it, or be damned as anti-Muslim. And let there be no
doubt: Government will accept the sharia courts lest it upsets India's
progressive, secular activists.