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Divisions in Muslim society and the Indian public law
By Prof. Tahir Mahmood

Tahir MahmoodThe followers of Islam in India – nearly 150-million by official admission -- are today divided into various religious and ideological communities and sub-communities, groups and sub-groups, and sects and sub-sects. They are not just Muslims -- but Sunni, Shia, Hanafi, Shafei, Ahl-e-Hadith, Ithna Ashari, Isma’ili, Deobandi, Barelvi, and so on and so forth. These historical-cum-ideological classifications of a distant past are, unfortunately, dividing the Muslims of our times – keeping them away from the true Muslim ideals of unity and brotherhood. The traditional Islamic concept of Ummat-e-Wahidah (One Community) is far from their reach.

The Sunni-Shia division of Islam is merely historical. It owes its existence to the difference of opinion among the Prophet’s followers on his demise in 732 AD regarding his successor as the Caliph – the majority favouring an election open to all and a minority seeking nomination of the Prophet’s nearest kin – his first paternal cousin and son-in-law, Hazrat Ali. The majority had prevailed and the Prophet’s close confidant and father-in-law, Hazrat Abu Bakr, was elected as the first Caliph. Two years later he was succeeded by another close Companion of the Prophet, Hazrat Umar ibn Al-Khattab [whose daughter, too, was married to the Prophet]. The second Caliph ruled for twelve years; and then the mantle passed on to Hazrat Usman ibn Affan [who had married one after another two daughters of the Prophet]. Hazrat Ali eventually became the 4th Caliph after Hazrat Usman, in 667 AD. He was recognized by the minority group as the Prophet’s Wasi (regent) and therefore the Imam – head of the community – of the time; in the opinion of this group he should have been also the first Caliph. The said majority and minority groups among the Muslims of those days are the Sunnis and the Shias, respectively, of today. They have, obviously, no justifiable reason to quarrel with each other over some disputed facts of distant history.

The Shias themselves are not a single unified group, again for historical reasons. After Hazrat Ali, the Shias of early Islamic history had recognized more Imams, successively, among Hazrat Ali’s descendants on a hereditary basis. Twice there was a split – different groups recognizing one of the two brothers as the Imam. This is how eventually the Shias had got internally divided into three groups – Zaidis, Ismai’ilis and Ithna Asharis [also called the Jafaris]. The Jafari Ithna Asharis got later divided into two ideological schools – the Akhbaris and the Usulis. The Isma’ili Shias too got divided into two branches – the Nizaris and the Musta’lis, also known as Eastern and Western Isma`ilis respectively.

The Sunnis too, are not a monolithic group. As the Prophet had sanctioned use of "personal reason" for the decisions of problems solutions to which were not found in the Qur’an and Sunnah, with the passage of time great Muslim jurists had begun developing and systematizing religio-legal precepts (fiqh). The process was called ijtihad [search for true religio-legal position on specific matters]. Towards the end of the first century of Islam were born Imam Abu Hanifa in Kufa and Imam Malik in Madina, who were later recognized as founders of two different mazahib (schools) or religio-legal thought, named after them as the Hanafi and the Maliki schools. The next century had seen development of two other great schools – the Shafei school of Imam Idris al-Shafei in Egypt and the Hanbali school of Imam Ahmad ibn Hanbal in Baghdad. In the course of time a predominant section of Sunni Muslims had accepted the final and binding authority of one or another of the four schools of law. Only a small minority among the Sunnis had not agreed to this principle called taqlid. The Ithna Ashari Shias too developed their separate school of fiqh now known as the Fiqh-e-Jafari. So did the other two Shia groups – the Isma`ilis and the Zaidis. This is how seven schools of Islamic law (mazahib-e-fiqh) had come into existence and still prevail on the globe. All these schools of law, obviously, aimed at offering a variety of legal rules to enrich the Muslim legal heritage, not any causes for quarrel to weaken the Muslim society.

In India the majority of Muslims are Sunni while the Shias constitute a sizable minority. The majority among the Sunnis are Hanafi, while many groups of them (especially in South and West) follow the Shafei school. Among the Shias of India the Ithna-Asharis are in the majority while the Khojas and Bohras of Western and Central India belong to the two internal divisions of the Isma`ili group of Muslims. There are in this country no Malikis or Hanbalis among the Sunnis and no Zaidis among the Shias. There is, however, a strong group of Sunni Muslims called the Ahle-e-Hadith who do not consider themselves bound by any particular school of law and rely directly on the Prophet’s Sunnah.

There are, among the Sunnis of India, also virtually two versions of Islam – the puritan version which represents original Islam as found in the texts of Qur’an and authentic Sunnah, and the version which allows and accommodates things like veneration of graves and holding of various kinds of festivities on religious occasions and at places of religious importance – all of which are viewed by the adherents to the former version as bid`at [unauthorized innovation]. The latter version is, doubtless, deeply influenced by local religious usages and practices. In India the puritans are sometimes called Wahhabi – [after Imam Abd-ul-Wahhab of the Hanbali school of Islamic religio-legal thought, though they are not Hanbali], or ‘Deobandi’ – [after the famous seminary of Deoband in UP, Dar-ul-Uloom, which follows the puritan ideology. The other group is called Bid`ati [practitioners of innovations], or Barelvi – [after their religious leader, Imam Ahmad Raza Khan of Bareilly city in UP].

The Indian public law recognizes not only the Sunnis and Shias, but also every other group of Muslims in the country to be the followers of Islam, equally. Under the Constitution of India all these divisions are equally entitled to the protection of their respective religious beliefs and practices. All that the Constitutional and legal system of India has to offer to any religious community, sub-community or group, or is legally available to an individual, in terms of religious rights and freedoms, is available equally to each of these classes of Muslims and their members. The Indian law makes no discrimination between them. Like Hanafi law, the Shafei law and Shia law are also regarded in India as part and parcel of the Indian legal system.

The Indian public law also does not discriminate between the Deobandi-Wahhabi or the Barelvi-Bid’ati versions of Islam. Under the Constitution of India each group has a right to adhere to its own peculiar beliefs and practices in matters of religion. Under this country’s law relating to religion and religious freedom the Barelvi-Bid’ati Muslims also profess and practise Islam only. Equally applicable to each of the various sects and ideological groups of the Muslims of India is the judicial dictum adopted in 1954 by the Supreme Court of India that :

"If this is in fact the belief of the community, a secular judge is bound to accept that belief; it is not for him to sit in judgment on the authenticity of that belief"

The Indian law cannot compel any one who claims to be a Muslim to subscribe to any particular belief of Islam – puritan or innovative. It was observed by the Madras High Court in 1952 that : "If a person is born into a particular religion, the mere fact that he is of an unorthodox type or has no belief personally in the tenets of that religion would not take him out of the category of persons professing that religion".

Reflecting the policy of Indian public law, this principle equally applies to Muslims. Much less can the State in India force a Muslim to practise his religion – or to practise it according to its authentic tenets. Any compulsion by the State in this regard is neither possible nor legally tenable.

In India, various groups of Muslims do indulge in charging one another with kufr (heresy). Sunnis would some times regard the Shias as kafir, and vice-versa; and the charge is sometimes freely traded between the Deobandis and Barelvis, or the Ahl-e-Hadith and the Muqallids. The practice, called takfir, has no recognition in the law of this country whatsoever. In a Calcutta case it has been held recently in 1991:

"No one has a right to condemn a person with a Muslim name as a non-Muslim until and unless he renounces Islam as a religion by his or her own pronouncement"

Under the old Indian Freedom of Religion Act 1850 no forfeiture of rights of any kind can be inflicted on any individual due to his exclusion from the communion of any religious group or sub-group.

Now, look at the scenario today. The holy texts of Islam might have given the Muslims the concept of Ummat-e-Wahidah. The law of India may be viewing with equality the entire Muslim citizenry of India as followers of Islam. But do we Muslims care? Do we recognize one another to be Muslims equally, one another’s beliefs as Muslim beliefs and one another’s law as Muslim law?

It is not too late in the day. Let us adopt in our actual day-to-day practice the policy of Indian public law to recognize all Muslims as Muslims only -- and thereby also answer the call of our religion to become an Ummat-e-Wahidah in the true sense of the expression. Therein will lie our strength, the ideal solution to all our present problems.

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