Every time secular India has demanded that the system of personal laws based on religious injunctions should be done away with, that Article 44 of the Constitution of India which enjoins upon the government to adopt a Uniform Civil Code should be taken for what it was meant to be, a cornerstone of State policy in a modern nation state, a countervailing cry has gone up, alleging that it is an assault on the identity of minority communities.
That, of course, is a misnomer; what those opposed to
a Uniform Civil Code mean is that the State should not interfere with
retrograde personal laws that discriminate on grounds of gender, laws
which are not in tune with the social realities of the 21st century. The
best example of such laws is the Muslim personal law that remains
unaltered in sum and substance despite vacuous words of assurance by
leading lights of the ulema.
The All-India Muslim Personal Law Board, which has
vested itself with full and absolute powers, though it enjoys neither
legal sanctity nor official approval, to implement personal law, at its
recent conference in Bhopal has presented what is being described as a 'model nikahnama.'
While self-proclaimed progressives, who have never had
to suffer the inequities of personal laws, have been quick off the mark
to hail this 14-page document as a big leap forward, Muslim women who
have been agitating against the discrimination they face have denounced
it as nothing more than cosmetic tinkering.
Lost in the debate is the crucial fact that the
All-India Muslim Personal Law Board is nothing more than the personal
enterprise of ulema and alim, apart from maulanas who
teach at seminaries. By its own admission, the All-India Muslim Personal
Law Board was established in 1972-1973 'at a time when then Government
of India was trying to subvert shariah law applicable to Indian Muslims through parallel legislation.'
The immediate backdrop was the introduction of the
Adoption Bill in Parliament by H R Gokhale, then Union law minister.
While introducing the Bill he had described it as 'the first step
towards Uniform Civil Code.'
This triggered an alert among the ulema, which
immediately went on the offensive, decrying the Bill as an attempt to
dilute, to quote the All-India Muslim Personal Law Board, the separate
identity of Indian Muslims. The 'risk of losing applicability of shariah
laws was real and a concerted move by the community was needed to
defeat the conspiracy,' the All-India Muslim Personal Law Board says of
its history.
This is what the All-India Muslim Personal Law Board
web site says: 'It was a historic moment. This was the first time in the
history of India after Khilafat Movement that people and organisations
of Indian Muslim community belonging to various schools of thought came
together on a common platform to defend Muslim Personal Law.'
The first meeting to 'save shariah' was
convened at Deoband at the initiative of Hazrat Maulana Syed Shah
Minnatullah Rahmani, Ameer Shariat, Bihar and Orissa, and Hakeem-ul
Islam Hazrat Maulana Qari Mohammad Taiyab, Muhtamim, Dar-ul Uloom,
Deoband. At the meeting it was decided to hold a convention at Mumbai on December 27-28, 1972.
The web site provides further details: 'The
convention was unprecedented. It showed unity, determination and resolve
of the Indian Muslim community to protect the Muslim Personal Law. The
Convention unanimously decided to form All India Muslim Personal Law
Board. As per the decision of the Mumbai Convention, the All-India
Muslim Personal Law Board was formally established at a meeting held at
Hyderabad on April 7, 1973.' The purpose: 'To adopt suitable strategies
for protection and continued applicability of Muslim Personal Law, ie,
Shariat Application Act, in India.'
Since then, the All-India Muslim Personal Law Board
has consistently insisted that 'sharia' is beyond reach and scope of
India's courts of law. The Supreme Court's judgement ordering
maintenance for Shah Bano, an old, indigent woman thrown out of her home
and hearth by her husband who had taken recourse to the expedient, sharia sanctioned means of pronouncing talaq thrice, led to nationwide violent protests engineered by the ulema and backed by the All-India Muslim Personal Law Board.
The Congress government, headed by Rajiv Gandhi, instead of seizing upon the judgement to push ahead with a Uniform Civil Code, chose to pander to the ulema.
The All-India Muslim Personal Law Board scored a huge victory when
Rajiv Gandhi used his brute parliamentary majority to steamroll the
Muslim Women's Bill in 1986. This strengthened the case for sharia more than the 1937 Act.
The All-India Muslim Personal Law Board has been
quietly consolidating its position as the only arbiter of Muslim destiny
in secular, republican India. Under the guise of bringing about
'reform' -- the All-India Muslim Personal Law Board believes that the
official age of consent is bunkum and that girls should be herded into
marriage the moment they attain puberty -- it has been surreptitiously
working towards the setting up of 'sharia courts'.
The logic is simple: Secular courts do not have the authority to either interpret or apply sharia, which is based on the Quran and the Hadith. That right belongs to 'sharia
courts' alone. As much was stated at the All-India Muslim Personal Law
Board's conference in Bhopal when the members encouraged Muslims to take
their differences to 'sharia courts' -- as distinct from going to the local ulema or alim as was the practice till now.
According to a report, 'sharia courts' set up by the
All-India Muslim Personal Law Board are already functioning in Gujarat,
Bihar, Uttar Pradesh , Assam and Orissa, albeit silently and without publicising their activities.
When 'Dar-ul Qaza,' the first Shariah court was set up in Ahmedabad, Gujarat, late last year, it was billed as an institution to 'end
woes of Muslim litigants' in the state. 'It promises to help bring down
backlog of court cases, save money, time and effort of parties. To top
it all, ensure justice without causing heartburn to the losing party,'
one spokesperson was quoted as saying.
'Dar-ul Qaza here (in Gujarat) will decide
matters in the light of Islamic tenets on various issues of day-to-day
living like marriage, divorce, inheritance, maintenance,' he added. In
brief, Muslims should no longer seek justice in secular courts of law.
According to Mufti Ahmed Devalvi of Jamia Uloomul Quran, Jambusar,
'Being believers of the faith, Muslims must accept the sharia tenets in resolving their disputes irrespective of the outcome of the disputes.'
Convener of the Dar-ul Qaza Committee of the
All-India Muslim Personal Law Board, Maulana Ateeq Ahmed Bastvi, who
teaches at Nadwatul Ulema, Lucknow [ Images
], administered the 'oath of office' to Mufti Abdul Qayyum Jaipuri as
'Shahr Qazi' of Ahmedabad. 'A Muslim is a Muslim wherever he lives in
the world and there are certain things about which he has no escaping.
Following sharia is one of them,'he was quoted as saying.
So, we have a fast-unfolding situation where the All-India Muslim Personal Law Board is setting up sharia
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 sharia courts lest it upsets India's progressive, secular activists.
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