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Published in the 1-15 July 2005 print edition of MG; send me the print edition

SPECIAL REPORT

The Fear of Shariah

By Ayub Khan

The Milli Gazette Online

The All India Muslim Personal Law Board has become the favourite punching bag of almost anyone who carries the fear of traditional Islam and who has a flair for writing. The non-event of the board’s Bhopal meeting has received the severest criticism for not doing enough on women’s issues, ironically, by the same opponents who say the board is irrelevant and is not representative of Indian Muslims. Amidst the volley of shots launched at traditional understanding of Islam by these critics was the attack on the board’s reiteration of its longstanding plans to establish a nationwide network of Darul Qazas or Islamic courts. Here again the noises are being made by the usual Hindutva commentators in unison with those with radical Marxist-Humanist leanings. Prominent among these is the Rediff columnist Kanchan Gupta (‘Secular? That’s a laugh’, Rediff, May 9,2005) and the prolific academic Yoginder Sikand (‘The Muslim Personal Law Board’s (sic) Shariah Court Campaign’, posted on several email lists on May 13, 2005) who sends daily dispatches on his email list apart from being published in Outlook and other newspapers and magazines. Swapan Dasgupta and others have also made passing references to the issue. While this has not been of much focus by the media it certainly has the potential to become explosive in the near future.

Kanchan Gupta in his analysis relies on the information from AIMPLB’s website and news reports. After a brief history of the board, he writes: “Lost in the debate is the crucial fact that the All-India Muslim Personal Law Board is nothing more than the personal enterprise of ulama and alim, apart from maulanas who teach at seminaries.” Contradicting this earlier statement and reality he goes on to say: “The All-India Muslim Personal Law Board has been quietly consolidating its position as the only arbiter of Muslim destiny in secular, republican India.”

He concludes by saying: “So, we have a fast-unfolding situation where the All-India Muslim Personal Law Board is setting up shariah 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 shariah courts lest it upsets India's progressive, secular activists.”

Sikand’s narrative on the subject is based on two Urdu booklets written decades ago by the board’s late president Qari Muhammad Tayyib Qasmi. He hypes up Qari Tayyib’s call for the election or appointment of an Amir and goes on to berate the Ulama as being out of touch with modern day realities. Sikand takes the ideals set out by Qari Tayyib too literally and reads too much into it without offering a historical perspective. Maulana Abul Kalam Azad was once the lead contender to the position of Amir-ul-Hind but he was not to be due to sectarian differences. If the diverse community of Indian Muslims couldn’t agree on a person of the stature of Maulana Azad how can any person or group lay claim to that position in contemporary times when the differences are more widespread ?

“Despite the fact that Muslim Personal Law is recognised by the Indian state, Tayyeb, echoing the views of the ‘ulama associated with the AIMPLB, insists on the need for Muslims to have their own parallel system of courts to judge their personal affairs. He sees this as an ‘Islamic necessity’. For this he suggests the need for Muslims to elect unanimously or by majority votes, their own leader (amir) at the all-India level, whom all Muslims must obey. Through this, he quotes a noted fellow Deobandi alim as declaring, ‘All the problems that Muslims are today confronted with would be solved’. The amir ul-hind or the ‘amir of India’ should be a pious Muslim male well-versed in the intricacies of the shariah. One of his principal tasks would be to nominate qazis or judges and muftis at the provincial and local level to dispense Islamic justice through a network of darul qazas," writes Sikand.

Despite his criticism he is also not shy of exploring the positive aspects of establishing Shariah courts. He writes, “The board’s project of what is, for all practical purposes, a parallel legal system in the country is bound to generate considerable controversy. On the one hand, it does appear to offer a cheaper and speedier means of justice, and one possibly less corrupt, than the state courts.” But is quick to add: “Yet, this is overshadowed by what many might see as its ominous implications. It is bound to meet with stiff opposition, not only from the Hindu Right but also from secular activists, Muslims as well as others, who might well see this as a move towards Muslim separatism and as an indication of a lack of faith in India’s judiciary… For their part, many women activists will undoubtedly find the darul qaza project a distinct move towards legal apartheid for Muslim women. Given the overwhelming presence of traditionalist ulama on the Board who have been reluctant to allow Muslim women access to even their full range of Islamic rights, and considering that the ‘ulama who would staff the darul qazas are all trained in a tradition of extreme patriarchal fiqh, it is obvious that Muslim women can hardly expect the darul qazas to provide them with the justice that they promise to.”

Kanchan Gupta’s critique is based on an irrational fear of everything Islamic. Sikand makes some valid points but his critique is also dominated with a number of stereotypes. Both of them overemphasise the influence of the board. By the board’s own admission it is not a legal body. It can only issue recommendations. Its influence is significant but limited and is similar to that of village panchayats. It can act as a pressure group but its authority and enforcement of its directives is severely restricted due to the lack of confidence in it by the community and the existing laws of the land. A scenario where a large number of Muslims will abandon the mainstream courts to opt for the shariah courts appears to be highly unlikely. There are a number of shariah courts operating throughout the country. The most important of these, the Iamarat-e-Shariah of Bihar, Jharkand and Orissa has decided only 34,000 odd cases. There is certainly not a mad rush towards these courts on part of the Muslim citizenry. Not only the masses but even the ulama turn to the regular courts when disputes arise. A number of Muslim organisations have been slugging it out in the courts. Currently, the contenders for the management of a prominent Hyderabad Madrasa are involved in a bitter litigation in the courts. To say that the Islamic courts are weaning people away from regular courts is too far fetched. 

Both Gupta and Sikand are also ignorant of the legalities of the issue. Alternative Dispute Resolution (ADR) mechanisms and other forms of legal pluralism are now being accepted in countries like Canada which have a stricter separation of Church and State. The province of Ontario has been allowing such practices for a number years. A government appointed commission after a thorough review late last year recommended that such arbitration be allowed to continue despite vocal protests by Islamophobes. Closer to home we have the example of Lok Adalats which save time and money for the litigants as well as the overburdened courts. The shariah courts operate in a similar manner. A survey of the Imarat-e-Sharia’s record has been conducted by former Minorities Commission chairman Tahir Mahmood and he did not find any violation. So far whatever accusations have been hurled have been pure hearsay. If Sikand and Gupta have any evidence that any violation of the law of the land or discrimination occurs they should bring it forward.

This is not to say that the existing or proposed Islamic courts are without any problems. They do have a number of them. The absence of women judges and the dominance of a certain group of thought are the issues that need to be addressed. Several structural adjustments like the inclusion of qualified lawyers to oversee the process for correcting possible violations, review of the sharia court decisions by judges of regular courts for review and enforcement thus guaranteeing a more open and just system are the options that should be explored. The world is moving towards a system which offers choice. There is no reason why two disputing parties are not allowed an alternative legal system if both consent to it and as long as it does not violate the law of the land. 
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