By R. Upadhyay
The All India Muslim Personal Law Board (AIMPLB), an outfit of fundamentalist Sunni group of Indian Islamists that primarily represents Deobandi sect of Sunni Muslims was formed only to protect Muslim Personal Laws rigidly on the basis of Sharia. Its sole agenda was to push back their community to medieval era. It does not even include Shias and Ahmadias who form a majority.
Unfortunately, under the patronage of successive governments and ‘secular’ intellectuals in different fields, it has been promoting the board ever since its formation in 1973 to ensure that the Indian Muslims don’t look at anything beyond medieval Islam. In view of the recent Supreme Court verdict against instant triple talaq welcomed by a larger section of Muslims, time has come to question the legitimacy of this regressive body formed by the self-appointed guardians of Islam. No one has made them the ‘sole spokespersons’ of the Muslim community and their relevance itself is very questionable.
Despite its strong opposition to any progressive measures of the government even some Muslim scholars like Tahir Mahmood and Arif Mohammad Khan advocated for abolition of this regressive body which has been a major obstacle for the progress of the community.
To understand the anti-secular, anti-democratic, antiquated and regressive policy of AIMPLB, we should look into the background of its formation. In fact, ever since Independence, the then government had accepted the radical Islamist organisations like Jamiyat-Ulema-e-Hind (JUH) and Jamaat-e-Islami Hind (JEIH) as the sole voices of Muslims who stayed back in India after partition. They even included forty-five Muslim leaders in the Constituent Assembly. These leaders while taking advantage of the incorporation of special privilege to the religious minorities in Constitution and patronage of the ruling political leadership, adopted an inflexible stand against any attempt of the government to take any reformative measures in the Muslim Personal Law.
They even strongly opposed Uniform Civil Code for the entire population and succeeded in pushing it to the directive principles of the Constitution. Over the years they not only linked issue of Personal Law with the religio-cultural identity of their community but also non-religious issues like Urdu, madrasa education, minority character of Aligarh Muslim University, Waqf, Babari mosque and also the right to prayer in archaeologically protected mosques etc. Although such issues may not have much relevance to the spiritual aspects of Islam, their politicisation by self-seeking Muslim leaders under the patronage of some politicians often resulted in political quibbling causing irreparable damage to national integration.
The enactment of the Hindu Marriage Act 1955 after nullifying the prevalent Hindu civil laws based on scriptures imposed a ban on the Hindus to marry more than one wife, whereas no such ban was imposed on the Muslims. It gives a husband a right to divorce his wife without going to a court of law or without giving any reason or justification for the divorce. This practice makes the legal position of a Muslim woman extremely insecure.’(H.A.Gani, Muslim Political Issues and National Integration, 1978, p.92).
Denying to Muslim women the benefit of monogamy as guaranteed under law was not only contrary to social justice but also contrary to the secular spirit of the constitution. Article 15 of the Indian constitution prohibits any discrimination among its citizens on the ground of sex but the Muslim women do not get constitutional protection on the issue of polygamy and divorce.
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, p.105.)
Legal recognition of personal laws for various religious groups in India is not only against the directive principle of its constitution but its existence in the legal structure of the country is also contrary to the fundamental principle of secularism(Gerald James Larsen, ed., Religion and Personal Law in Secular India,Delhi: Social Science Press, 2001, p.1).
In spite of such discriminatory practices on the basis of religion, 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.
The argument of Muslim fundamentalists that Islamic laws are immutable—is not based on sound logic. In fact, a number of Islamic countries made certain reforms in Shariat to meet the changing social environment. ‘As many as twenty-two Arab countries and some eighteen non-Arab Muslim countries have systems of personal law that have been codified and reformed in variety of ways, some of which are not discriminatory against women, outsiders and so forth.’(Tahir Mahmood, ‘Personal Law in Islamic Countries’, 1987. Quoted in Gerald James Larsen, ed., Religion and Personal Law in Secular India, p.2.). 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. ‘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.’(H.A. Gani, Muslim Politics and National Integration, 1978, p.115.)
Encouraged with the changing attitude of a number of Muslim majority countries towards the Shariat and writings of some progressive Muslim intellectuals on this issue, the Union Cabinet appointed a committee in 1963 comprising of Muslim leaders like Humayun Kabir, Hafiz Muhammad Ibrahim, Muzaffar Hussain and Jamia Vice Chancellor Mohammad Mujib for suggesting reforms in the Muslim Personal Law. Tahir Ahmad, 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. The issue also figured at the International Congress of Orientalists in Delhi in 1964, which stirred a countrywide debate on the subject.
Fyzee, an internationally recognised Muslim scholar 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.’
Begum Sharifa Tayabji in her presidential speech in the Maharashtra State women conference (Pune, 27 December1971) maintained, ‘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’. She added, ‘if Rasul Allah is to appear in person before us he would roll his head in shame over our performance. … 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. (M.R.A. Baig, Th e Muslim Dilemma, 1974, p.20).
Contrary to rational views of Muslim intellectuals, the Islamic orthodoxy particularly, of Jamaat-e-Ulema-e-Hind (JUH) and Jamaat-e-Islami Hind (JEIH) reacted sharply against the move pleading that change in Muslim Personal Law was tantamount to infringement of the religious rights of the followers of Islam. 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’. (Mushirul Hasan, Legacy of a Divided Nation, 1997, p.248. (Mushirul Hasan, Legacy of a Divided Nation, 1997, p.248.).
The Working Committee of JUH, which is often 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.’(H.A.Gani, Muslim Politics and National Integration, 1978, pp.94-95). 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., p.95). They argue that no one is competent to change or amend the explicit provisions of Quran, which is divine. They went to the extent of declaring that any change would amount to an attempt to Hinduise Muslims.
Radiance, an organ of Jamaat-e-Islami dated 25 June 1972 observed: ‘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’. Taking the issue as a conspiracy of the government to subvert Shariah, the Muslim orthodoxy 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.
Darul-Uloom Deoband, a known fundamentalist Islamist institution organised a two-day (27-28 December 27-28 1972) convention at Mumbai and unanimously decided to form an All India Muslim Personal Law Board (AIMPLB), which was formally established on 7 April 1973 at Hyderabad with Maulana Taiyab Qasmi and Maulana Syed Shah Minatullah Rahmani as founder president and secretary respectively. The formation of AIMPLB and silence of the government on the legitimacy of this body which was not the sole voice of the Muslims was the first victory of Muslim orthodoxy in post Independent India not only over the enlightened people in the community but also over the government which succumbed to the pressure of Islamists. Since then AIMPLB also became an institution under the control of radical Islamists, who used it as a tool for exploiting the government and the Muslim masses for their self-seeking political interest.
In 1973 M.C.Chagla said, ‘in secular India, everyone should have equal rights and polygamy should be abolished’(H.A.Gani, Muslim Politics and National Integration, 1978, pp.88). 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 anyone except Muslim males.’(Hamid Dalwai, Muslim Politics in India, 1969, p.87.
According to Rafique Zakaria, ‘Muslim Personal Law is strictly not based on the Quran; it is a bunch of interpretations and traditions compiled by a group of Maulawis at the instance of Lord Macaulay.’(Rafique Zakaria, The Widening Divide, 1995, p.234). Asghar Ali Engineer, a 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 further said, ‘Maulana Abul Kalam Azad in his commentary on the holy Quran makes a distinction between Din (essence of religion) and Shariat (Islamic legal code, rituals etc); only the former is immutable while the latter is not.’(A.A.Engineer, Indian Muslims, 1985, p.288.).
The observations of Muslim intellectuals referred to suggest that Shariah is not immutable and therefore, reform in Muslim personal law is not against the concept of Islam. They often expressed their views in support of transformation of Muslim society and it’s Personal Law. However, in the absence of any unified and assertive role, their voice remained muted against voice of Muslim extremists, whose war cry of ‘Islam is in danger’ in the clergy-controlled Muslim society in India carried the day.
Ironically, instead of honouring the saner voice of these scholars, the government led by Rajiv Gandhi again succumbed to the pressure of the voice of Mullahs who successfully organised countrywide aggressive protests against the verdict of Supreme Court in the Shah Bano case in 1985 and amended the constitution to pass the Muslim Women Bill. Rajiv Gandhi did not even allow Arif Mohammad Khan, Minister of State in his cabinet to speak against the Bill, which was passed to undo the Supreme Court verdict. This was a signal that Mullahs power in India was stronger than the government.
Muslim masses would be glad if their personal laws were altered to conform to the modern concept of justice but unfortunately they are helplessly caught between the slogans of secularism and ‘Islam is in danger’ as their leaders fail to initiate any genuine move to awaken them from their slumber. Knowing the weakness of the government almost all Muslim organisations in India have now linked the Shariat with the religious identity of Islamic community and the All India Muslim Personal Law Board is always ready to resist any move by the government for its reform. The Board was expected to initiate a debate on this issue within the community but no initiative on this 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 the Uniform Civil Code, they would have perhaps have effectively countered the root cause of Hindu-Muslim divide. Such a 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 Zafar Imam, ed., Muslims in India, 1975, p.220).
Exceptional Muslim intellectuals of true nationalist and secularist Indian tradition like M.C.Chagla, former President Dr A.P.J.Kalam and Hamid Dalwai unfortunately did not find space in Muslim society dominated by fundamentalists. Indian Muslims responded positively to the advice of Sir Sayed Ahmad Khan and accepted a number of changes in Shariat particularly the Quranic punishments. ‘On the eve of British Raj; they accepted the replacement of Quranic punishments with those provided by the new rulers in their civil and criminal codes that were imposed on them; prohibited by the Quran; they acquiesced in the banning of stoning to death for adulterors, though it violated the Quranic injunction; they strongly protested against enactment of Shariah Act, which invalidated child marriages.’(22. Rafiq Zakaria, Indian Muslims: Where Have They Gone Wrong? Mumbai: Bhartiya Vidya Bhavan, 2004, p.xxxviii).
A spurt in Islamic studies since the closing decades of twentieth century has been a silver lining which has provided an opportunity for secular Muslims to initiate an aggressive debate among the common Muslims, who are the main victims of the ongoing 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 and fight the communal agenda of fundamentalists. For this, they should be extra cautious against political parties who may like to infiltrate in the movement for their own political interests. Muslim organisations like JUH, JEIH, All India Muslim Majlis—Mushawarat, All India Muslim Majlis-e-Mujahideen, All India Muslim Personal Law Board and others have caused more harm to Muslim society than any one else. Hamid Dalwai suggested, ‘if Muslim communalism is effectively eliminated, the root cause of Hindu communalism will be destroyed.’(23. Hamid Dalwai, Muslim Politics in India, 1969, p.91)
The widening communal divide due to the thoughtless politicisation of Muslim issues since Independence has now reached a stage when it is getting out of hand and making the emotional integration of the two major religious communities more and more difficult. No one can deny that it is detrimental to the national interest and well being of its people.
In view of the complexity of the problem, the only ray of hope lies in the honest and unified efforts of liberal Muslims. Without a strong assertive Muslim leadership in the nationalist and secularist Indian tradition launching an aggressive movement for democratic liberalism to free the community from their medieval psyche, the root cause of their plight and rescue them from the whirlpool created by Islamists, they would continue to cling to medievalist obscurantism.
The need of the hour is to de-politicise all the religious issues, which are detrimental to national integration. The demand for abolition of AIMPLB which is just an assembly of Islamist clerics who have been poking their nose on every matter involving Muslim community should be widely debated and disbanded if need be.