The Postcolonial Shariat
A small pamphlet published by the AIMPLB in Urdu Dastur-e-Hind aur Uniform Civil Code says:
The fundamental rights given in the Constitution of India provide a legal validity to the Personal laws of Muslims....
Art 25 and Art 26 very clearly establish the fact that personal laws can also be seen as freedom of conscience and the right to freely profess, practice and propagate religion.. The Supreme court in various cases has also observed that Personal laws are an essential part of Islam and these cannot be taken away.21This legal-constitutional justification of Shariat in postcolonial India is based on two strong hypotheses: (a) The right to religion can also be interpreted as a right to have personal law. (b) Shariat is an essential aspect of Islam as a religion.
Let us locate these conclusions in the context of 1940s. The Congress Muslims, particularly associated with the Jamiat Ulema-e-Hind, continued to work out a position by which the notion of composite nationalism could be made compatible with the specificities of the Shariat. Hussain Ahmad Madani’s book Mutahida Qaumiyat, which was based on his correspondence with Iqbal on the question of nationalism, is very relevant in this regard. Madani makes a strong case for composite nationalism, not only because it was religiously justifiable, but also because he was convinced that the Muslims would have special rights for the protection of Islamic Shariat in future undivided India.22 However, the Muslim League’s position on personal law was different. Jinnah tried to project the enactment of the Shariat Application Act 1937 as a legal milestone for achieving a true Muslim nation.
The creation of Pakistan somehow made it difficult for the Congress Muslims to make a strong case for Shariat laws. They had to face two types of challenges. The partition of India on a religious basis encouraged Hindu rightists to demand that India should be declared a Hindu state.
From this point of view, the demand to have separate personal laws was a reflection of intolerable Muslim ‘separatism’. On the other hand, there was a strong modernist-secular lobby within the Congress that became proactive to pursue a radical social reform agenda. For this lobby, the Muslim demand was a sign of inward-looking attitude. Despite facing these adverse political forces, the Muslim members in the Constituent Assembly managed to raise the question of Shariat in the debate on personal laws. The outcome of this debate was quite delicate: the personal laws were recognised along with other customary laws, while at the same time, the supremacy of the Constitutional law was upheld.Ambedkar’s observation is very relevant in this regard. He points out:
There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. We must all remember — Including members of the Muslim community who have spoken on the subject, though one can appreciate their feelings very well — their sovereignty is always limited, no matter even if you assert that it is unlimited; because sovereignty is the exercise of that power and to reconcile itself to the sentiments of different communities. The Government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be mad government if it did so. But this is a matter that relates to the exercise of the power and not to the power itself.23
This clarification, in a broader sense, points towards the classical distinction between the state and the government. The Constitution, Ambedkar seems to suggest, is a symbolic embodiment of the idea of a sovereign state. The government, in this classical liberal formulation, is the actual governing body whose decisions are entirely contingent upon the contextual wisdom.
Thus, the supremacy of the state (read Constitution) cannot be challenged by any community because it represents a collective whole; yet, the limits to have certain community-specific rights are to be decided by the government.24Tahir Mahmood in his book Muslim Personal Law: The Role of the State in the Subcontinent (1977), elaborates this point. Problematising the relationship between personal laws and the freedom of religion, he points out that ‘the history of our Constitutional and legal precedents is that most of the matters now regulated by Personal laws are “secular activities associated with religious practices” which the state can regulate by law and which may be subject to social welfare and reform’.25 To understand this observation, we have to revisit the scope of Art 25 (freedom of religion) and its judicial explanation.
Art 25(1) says:
Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
Art 25 (2) elaborates it:
Nothing in this article shall affect the operation of any existing law or prevent the State from making any law —
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
The meaning of religion given in these two articles is quite comprehensive. For instance, the term ‘religious affairs’ covers a variety of activities, including the management of functional religious places of worship as well as various acts of religious nature associated with them. The Indian judiciary, however, has devised an interesting concept of ‘essential practices’ of religion to determine the limitations of religious institutions and the secular control of the state.
The Supreme Court in various cases has observed that there is an essential part of religion that constitutes the core or the centre of the entire belief system.26 According to the Supreme Court, this ‘essential part of religion’ has to be protected and the state can intervene in other ‘non-essential religious activities’.27 In the context of wakf laws, the court verdict in the Khajamian Waqf Estate etc. versus the State of Madras and Another (1971[2] SCR 791) is quite significant. In this case, it was held that Article 26(c) and (d) give power to the religious denominations to administer the property as per the laws. However, it does not mean that the property owned by the religious denomination could not be acquired by the state. This judgment very clearly shows that the ‘management of the wakf’ is not comprehended as an essential religious practice associated with Islam in India and thus any functional (in this case historical) mosque could be acquired by the state. This is also true about the Muslim Personal Law. The state is empowered to scrutinise any set of laws including the personal laws of various communities.28The difference between the essential religious practices and the other nonessential religious practices may be understood as a workable legal formula. However, it raises an important question: How could a secular judiciary based on rational principles determine the ‘essential practices’ and non-essential practices of a religion?29 Or, what could be the principles by which certain practices might be designated as essential practices?
This point was raised by many scholars during the time of the Shah Bano controversy. For instance, in an article published just after the Supreme Court decision in 1985, Tahir Mahmood argues:
Of course, the fault does not lie with the court. It was Counsel Daniel Latifi who saw nothing wrong in inviting the Supreme Court to interpret a certain verse of the Quran; and the court naively obliged him.
Certainly he could have told him that it was beyond its jurisdiction to interpret or rereinterpret that basic religious scripture especially since there were established Privy Council rulings warning the courts to keep away from such an adventure. The Quran — like the Holy Vedas and the Bible is a revealed book. Would any modern court anywhere in the world attempt to interpret the Rigveda or the Old Testament? Laws derived from the Quran in the distant past are found in the books of law, and the court could definitely have interpreted those books. Re-interpreting the Quran itself straight away was, however, not a task that the Supreme Court of India or any of its judges should have performed.30If we accept Mahmood’s persuasive argument that the Supreme Court’s decision might be in accordance with the provisions of the Criminal Procedure Code or to the judges’ conception of equality and justice but it was not in conformity with traditional Muslim law, one might ask a straightforward question: If the Supreme Court does not have a right to interpret the Quran directly, what is the logic behind accepting the supremacy of the Constitution/Supreme Court as the protector of minority rights? After all, Shariat is always presented as the complete way of life, which also covers the criminal cases in which Muslims are involved. In other words, why is there a controlled demand for the protection of a personal law that is only concerned with civil issues?
This question was also raised by the law minister Asoke Sen in a parliamentary debate on a private bill presented by G M Banatwala on deleting Art 44 in the Lok Sabha in April 1985. Banatwala gave a very interesting response. He said:
An argument has been advanced that when the Indian Law of Crimes, is also at variance with the Islamic Law, then why an objection is taken with respect to Personal Law? I submit that this is perverted logic. If a part is not made available, it doesn’t mean that the other should be surrendered.
Let me declare that we, the Muslims, are prepared to submit ourselves to the law of crimes as envisaged by Islam if the state is prepared to enforce it upon us... I emphasize the word “free” which has been used deliberately and purposely in Article 25 of the Constitution of India.. “Free practice” means, when your own religion gives you certain discretion, you will be free to make your own choice. Closing the doors of discretion for an individual is not free practice of religion as contemplated by Article 25 of the Constitution. I must appreciate the position taken by the government. It has been made amply clear that there is no intention on the part of the Government to bring about any changes in the personal law of the Muslims unless and until the Muslims themselves desire it.31This reply, quite obviously, overstates the case of freedom of religion by making a rather technical explanation. Yet, the distinction that Ambedkar makes between the state and the government is evoked to articulate a theoretically nuanced and legally plausible position. It is claimed that the state, in principle, recognises the interests of the ‘community’. In conformity to this recognition, the community also recognises the state as an ultimate protector of rights. The government, Banatwala seems to suggest, has to admit this mutual trust in devising various laws.
Banatwala’s explanation is not entirely rhetorical. In a judgement on the legality of Islamic fatwa and the existence of the Muslim Personal Law Board, the Supreme Court made an interesting observation. The court had to decide whether the AIMPLB strives for the establishment of a parallel judicial system in India. According to the judges:
One may not object to issuance of Fatwa on a religious issue or any other issue so long it does not infringe upon the rights of individuals guaranteed under law. Fatwa may be issued in respect of issues concerning the community at large at the instance of a stranger but if a Fatwa is sought by a complete stranger on an issue not concerning the community at large but individual, then the Darul-Qaza or for that matter nobody may consider the desirability of giving any response and while considering it should not be completely unmindful of the motivation behind the Fatwa. Having regard to the fact that a Fatwa has the potential of causing immense devastation, we feel impelled to add a word of caution. We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue Fatwa concerning an individual, unless asked for by the person involved or the person having direct interest in the matter. However, in case the person involved or the person directly interested or likely to be affected being incapacitated, by any person having some interest in the matter, Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as a dehumanizing force.32
Let us summarise this discussion on postcolonial Shariat. I find four broad inferences:
(a) The Shariat is a historically evolved entity, which is actually the product of human intervention. Therefore, its perceived sacredness is disputable.
(b) The evolution of Shariat in South Asian context is inextricably linked to the ways in which Sanskrit and Persian cosmopolises amalgamated and produced a distinctive political culture.
(c) The body of norms called Shariat is a rather modern phenomenon, whose modernity could also be traced to the 19th century Islamic reform movement.
(d) The postcolonial Shariat is contingent upon the state/government distinction. The Muslim political elites, particularly the AIMPLB, offer a state-oriented legal position. It is suggested that although the state could interpret Shariat, any endeavor of this kind must take cognizance of religious authority as a legitimate stakeholder.
These inferences do not merely respond to the questions I raised in the beginning but also make a case for a systematic examination of the reception of Shariat in various contexts. In my view, this possible exploration might take us to a legal pluralism specific to South Asia.
Notes
1 This is a revised and updated version of my work that previously appeared as “The Politics of Shariat,” in Rethinking Indian Jurisprudence: An Introduction to the Philosophy of Law, ed. Aakash Singh Rathore and Garima Goswami (London: Routledge, 2018), 95-103.
2 Kaviraj introduces us to this idea of second order theoretical questions. Kaviraj, Sudipta, Imaginary Institution of India (New York: Columbia University Press, 2010), 39.
3 Rehmani, Maulana Syed Shah Minnatul, Qanoon-e-Shariat ke masdir aur naye masael ka hal (Delhi: AIMPLB, 2000), 7-12.
4 Shahab Ahmed reminds us that the act of interpretation is not a fixed process. Rather, Isalmic fiqh recognises the value of legal pluralism. He notes: ‘fiqh... recognizes that the same process of legal reasoning can lead to more than one answer: that is, to more than one valid hukm. Indeed, the basic principle of Islamic juridical pluralism is that any ruling arrived at by a process of sound legal reasoning is correct - thus, two legal schools might arrive at directly contradictory rulings in regard to the identical legal case, but both schools will accept the ruling of the other school as correct to the purpose at hand. In other words, the same transcendental value can manifest itself as two contradictory temporal values’. Shahab Ahmed, What is Islam: The Importance of Being Islamic (Princeton and Oxford: Princeton University Press, 2016), 483-484.
5 Gerhard Bowering offers us an excellent historical overview of the debate on construction of the Quran. Bowering, Gerhard, “Recent Research on the Construction of the Qur’an,” in The Quran in its Historical Context, ed. Gabriel Said Reynolds (New York and London: Routledge, 2012), 70-97.
6 The late evening Salat known as Isha is extended in the month of Ramdan for recitation of the Quran. These special prayers are called Taravih. Interestingly, the TaravihSalat were also evolved and institutionalised after the death of Prophet Mohammad.
7 Ashraf Ali Thanvi, an Indian Ulama, gives a very interesting description of this process in his Urdu Tafsir-ul Quran. See, Thanvi, Ashraf Ali, Tafseer-ul Quran (Urdu) (New Delhi: Farid Book Deport: 2006), 3-10.
8 For an interesting discussion on this question, see, Reynolds, Gabriel Said, “Qur’anic Studies and its Controversies,” in The Quran in its Historical Context, ed. Reynolds, Gabriel Said (New York and London, Routledge, 2012), 1-27.
9 Shahab Ahmed evokes an interesting term ‘Con-Text’, which is very relevant to understand the ways in which Quran is seen as a relic by a common Muslim. Ahmed argues that ‘Con-Text is. the entire accumulated lexicon of means and meanings of Islam that has been historically generated and recorded up to any given moment; it is the full historical vocabulary of Islam at any given moment. When a Muslim seeks to make meaning in terms of Islam, he does so in engagement with and in use of the existing terms of engagement - that is, the existing vocabulary of Islam; it is his use of the vocabulary of the Con-Text that makes his discourse and actions recognisably Islam-ic'. (Original emphasis, Ahmed, op. cit., 435).
There is a vast literature on Tafsir in different languages. For an interesting discussion on thie history of Tafsir literature see Saleh, Walid A., and j^lJg^JiA i, “Preliminary Remarks on the Historiography of Tafsir in Arabic: A History of the Book Approach,” [.oM^^lo i^JfAcl^ IJi^^o IJtljj^ia Jla^I^lo IJiljj^ia IJ^ii^a jlJl^a IJs^jra £^I JxA^.r_^.: jljjj. Hill i_>.] Journal of Qur anic Studies 12 [Edinburgh University Press, Centre for Islamic Studies at SOAS] (2010): 6—40.
AIMPLB website, Personal law Board ka taaruf aur khidmaat, accessed September 28, 2021 http://www.aimplboard.in/index.php.
Alam, Muzaffar, Languages of Political Islam in India 1200—1800 (Ranikhet: Orient Blackswan, Permanent Black, 2004).
Aquil, Raziuddin, In the Name of Allah: Understanding Islam and Indian History 1. publ. (New Delhi: Penguin Books India, 2009).
Kumar, Sunil, The Emergence of the Delhi Sultanate, 1192—1286 (Bangalore: Permanent Black, 2007).
Eaton, Richard M., and Phillip B. Wagoner, Power, Memory, Architecture: Contested Sites on India's Deccan Plateau, 1300—1600 (New Delhi: Oxford University Press, 2014). Richard Eaton and Philip B Wagoner’s book Power, Memory, Architecture, 19.
Alam, op. cit., 13.
Guha, Ranajit, Dominance without Hegemony: History and Power in Colonial India (Cambridge: Harvard University Press, 1997), 160—162.
Mahmood, Tahir, Muslim Personal Law: Role of the State in the Subcontinent (New Delhi: Vikas, 1977), 12-15.
Galanter, Marc and Krishnan Jayanth, “Personal Law Systems and Religious Conflict: A Comparison of India and Israel,” in Religion and Personal Law in Secular India: A Call to Judgment, ed. Larson, Gerald James (Bloomington and Indianapolis: Indiana University Press, 2001), 270-300.
Maulana Abdul Rehman, 13-15.
Madani, Hussain Ahmad, Composite Nationalism and Islam (Muttahida Qaumiyat aur Islam), trans. Mohammad Anwer Hussain (New Delhi: Manohar, 2005).
Dr. B.R. Ambedkar, CAD, 24 November 1948, accessed September 28, 2021, https:// indiankanoon.org/doc/1945234/.
Two very relevant examples can be taken to explain this formulation: Article 372 (1) and Article 13 (1) of the Constitution. Article 372 (1) says: ‘Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority’. Article 13 reaffirms this commitment, with a slight warning: ‘All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void’.
Mahmood, op. cit., 106.
In this context the two cases are very important: Ratilal versus State of Bombay (1954, SCR 1055); Commissioner Hindu Religious Endowment versus Lakshmindra (1954, SCR 1055).
The court verdict in the Saifuddin versus the State of Bombay case (AIR 1962, SC 853, 864) could be cited in this regard.
Mahmood, op. cit., 103.
29 Dhawan, Rajeev, “The Road to Xanadu: India’s Quest for Secularism,” in Religion and Personal Law in Secular India: A Call to Judgment, ed. Larson, Gerald James (Bloomington and Indianapolis: Indiana University Press, 2001), 300—329.
30 Mahmood, Tahir, “Supreme Court Misinterprets the Quran,” Muslim India III, no. 36 (December 1985): 542 & 545.
31 Banatwala, G.M., “Muslim Personal Law is based on Shariat,” Muslim India III, no. 29 (May 1985), 215-216.
32 SC 386/2005.