I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field.

After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.

—Dr. B.R. Ambedkar Hastings (then governor general of India) made regulations for the administra­tion ofjustice in jurisdiction under the East India Company’s rule. Hastings was instrumental in evolving a judicial system where civil and religious matters were to be decided by company courts in accordance with the laws of the Quran for Muslims. This was reinforced by the regulations of 1781. This practice continued till Independence. After attainment of Independence, the Constitution of India was introduced, which was a paradigm shift towards secularism, at least in prin­ciple, if not in practice. Uniform Civil Court (UCC) debate cropped up at the time of framing the Indian Constitution and divergent views were echoed, which became polemic. Some of the issues related to Muslim Personal Law including gender justice have been raised, critically examined and are relevant for seeking sociological explanations in pursuit of decoding UCC.⁷

One may look upon UCC as an ongoing and unresolved debate in India to replace personal laws based on the religious scriptures and customary practices of each major religious community, so diverse as evident from the preceding para­graphs, with a common set of rules for governing every citizen in the domains of marriage, divorce, adoption, guardianship and child custody, maintenance, suc­cession and inheritance. For analytical purposes, three major schools of thought on the issue of UCC may be identified. One school advocates the introduction of an optional code which citizens would willingly follow themselves.

The second school supports the introduction of a mandatory code for all citi­zens irrespective of their willingness or unwillingness to follow it.

Rahman has pointed out that according to the medieval Muslim theory of jurisprudence, the structure of Islamic law revolves around four foundations of law, viz. Quran, the Sunna of the Prophet, the Ijma (consensus) and Qiyas (ana­logical reasoning). The mutual relationship of these four principles is cloudy.⁸ However, it may be juxtaposed from Aristotelian analogy: the Quran and the Sunna as the material principles (or the sources), the activity of analogical reason­ing (qiyas) the efficient cause, and the Ijma the formal principle (or the functional power). Thus, the purpose of the structure is to enable man to live under the sovereignty of God and in accordance with His will.

It may be noted here that law in Islam is essentially religious, stemming from Sharia (the divinely ordained pattern of human conduct). Therefore, its basis is the Quran. It is the primary and the sole director of human life as well as the source of law. Subsequently, Sunna was included as the precedents of the first four Caliphs.

The ‘Ulama’¹⁰ system and particularly the development and status of law, how­ever, did not fail to generate a new and much more far-reaching tension within Islam than the rationalism of the Hellenizing elements.^[11] Rahman has further observed that the spread of Islam in India was carried on through Sufi brother­hoods. Sufism made compromises with the spiritual milieu and cultural ethos already existing. The new challenge before the ‘Ulama’ was this massive tension between the orthodox system and Sufism as a popular religion. The reconcilia­tion of an orthodox religion with Sufi spirituality brought about the monumen­tal work and personality of al-Ghazali, revitalized and infused into the Muslim community.^[12]

Qiyas means analogical reasoning, i.e. concluding from a given principle embodied in a precedent on the strength of a common essential feature called the ‘reason’. Subsequently, it implied a syllogism or syllogistic reasoning. It referred to a movement of thought from the explicitly known to explicitly unknown. In Madina, Malik continued to use the term ra'y. It pursued a uniform doctrine characterized by the concept ‘agreed practice’ or Ijma. However, in Iraq, Abu Hanifa formulated expressions like ‘this is in the category of’, ‘this is similar to’. Simultaneously, the concept ‘ijtihad or ‘systematic original thinking’ developed into a powerful principle of original thought which swallowed qiyas as its method. al-Shafi, credited for writing the foundations of law, is also credited establishing qiyas as a principle. Rahman has observed that the personal opinion into qiyas was a link in pursuit of uniformity and solidification ended up in Ijma.

Mughal Empire was a military unit within the administrative system. The word mansab stems from Arabic and means rank or position. This system determined the rank of a government official and also other military generals. Ali (1985: xiii) has pointed out the difficulties in ascertaining the precise number of mansabs of different categories due to a variety of reasons. However, out of 3,09,200 total mansabs, 1,90,900 belonged to the rank of 500 and above; 42,100 belonged to the rank of 200 and above but below 500 and only 76,200 below 200.

Ali (1985: xvii) has observed that the Mughals pursued the policy of giving mansabs to persons who either themselves held high office in the Safavid and Uzbek empires or were sons or kinsmen of such officials. The family of NurJahan is a well-known example of Safavid bureaucrats migrating to India over a span of two or three generations. The bulk of Persian (Irani, Iraqi, Khurasani) and Central Asian (Turani) immigrants belonged to this category. Subsequently, there was a continuous influx of a similar kind from the Deccan Sultanates, so much so that ‘Adil Shah of Bijapur obtained in 1636, as a special concession, a pledge from the Mughal Emperor that he would not take into his service any person previously serving ‘Adil Shah’. Table 3.1 shows that only the high castes or ethnic groups were allotted highest mansabs. The bottom five categories were not granted mansabs of highest orders. This is clear from the table that during 1595 to 1656—57 only Ashrafs used to get mansabs.

In buttressing my argument of only Ashrafs’ access to scarce resources, Ali has pointed out that in spite of the claims of khanazads, high officers of other regimes, and hereditary chiefs, there was some scope for other entrants.¹⁷ The Mughals were no believers in equality (emphasis added mine).

TABLE 3.1 Highest Mansabs

Source: Ali.¹⁶

to keep grants of mansabs to both races under some constraints.

In the absence of upward social mobility for the low caste origin, aspirants of low caste used to claim high caste for getting the award/grant from the Mughal emperors. It is interesting to note here that a barber at Ahmadabad pretended to be a Mughal (Turani), and stood as an approved candidate for the mansab of 150 before the prince. On the third day, however, a harkara (spy) reported the true facts of his birth. Eventually, he was forthwith dismissed and handed over to the kotwali for punishment. Such secret enquiries must have been controlled by Mir Bakhshi, who was the central minister in charge alike for presenting candidates for awards of mansabs, and for the entire department of intelligence. It appears that some mansab-holders stood surety for the new appointees.¹⁸

The trend of access to resources by the Ashrafs continued during the British raj which may be easily discerned from the village records, permanent settlement reports and documents related to the British raj land administration. One needs to be careful in examining the position of Ashrafs and their access to ownership, control and use of land in the zamindari, ryotwari and mahalwari systems during the British raj as these three systems had different objectives and goals ofthe rulers. Land had been the major source of livelihood during the British and pre-British periods. Besides, it was also a major source of power and prestige in Indian society before Independence. However, due to various land reform measures, a trend of change has emerged. Ownership, control and use of land has been undergoing change. There is a shifting trend of ownership, control and use of land from Ashrafs (A¹) to Ajlafs (A²) and even in a limited way to Atrafs (A³) in post-Independence India.¹⁹

III.