June 22, 2021
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An Outrageous Proposal

AIMPLB's recently-held eighteenth national conference in Bhopal received some commentary on its anti-reform stand on the triple-talaq issue and the model nikahnama, but the more controversial revival of talk of establishing a separate system of 'Isla

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An Outrageous Proposal
An Outrageous Proposal

At its recently-held eighteenth national conference in Bhopal, the All-India Muslim Personal Law Board (AIMPLB) reiterated its long-standing demand that Muslims, particularly the ‘ulama and heads of various Muslim community organizations, must work towards establishing a ‘vast network’ of dar ul qazas or shariah courts covering the entire length and breadth of the country. Such courts, it insisted, were ‘an Islamic necessity’ and a principle means to combat what it saw as a ‘conspiracy’ to destroy the separate religious identity of the country’s Muslims.

Right since its inception in 1973, the Board has been consistently demanding the setting up of dar ul qazas in order to administer what it describes as ‘Islamic justice’. This effort has gained considerable momentum in recent years. The Board’s ambitious project is outlined in its recently published two-part Urdu booklet, ‘Nizam-e Qaza Ka Qayyam’ (‘The Establishment for a System of Islamic Justice’), which lays out a grand plan of establishing a separate system of ‘Islamic courts’ in the country.

The booklet describes the need for such courts as an Islamic imperative, arguing that Muslims are bound to govern their lives in accordance with the laws of the shariah if they are to remain true to the dictates of their faith. True justice can be had only by following God’s laws, which the booklet equates with the traditional understanding of the shariah upheld by the ‘ulama. Not to follow these laws is described as a ‘great crime’, which the Qur’an is said to condemn as ‘infidelity’ (kufr) and ‘oppression’ (zulm).

Although for the ‘ulama, such as those associated with the Board, ideally the whole gamut of Islamic laws, including criminal and civil laws, should be enforced, they are realistic enough to make concessions for Muslims living as minorities in non-Islamic states such as India. Hence, the booklet restricts its advocacy of shariah laws to the personal sphere covering family matters, such as marriage, divorce, adoption and inheritance.

Notwithstanding the fact that the Indian Constitution recognizes Muslim Personal Law and Indian courts are empowered to deal with cases under this law, the booklet demands that Muslims should set up their own courts headed by trained ‘ulama to solve their own disputes instead of taking them to the state courts. It insists that to do so is an ‘Islamic duty’ and claims that willingly abiding by the decisions of these courts is a means to ‘win Allah’s pleasure as well as welfare in the Hereafter’. It also argues that parallel dar ul qazas would be a quicker and easier form of justice than secular courts, and that these would be particularly beneficial for ‘oppressed groups, including women’.

The rationale for establishing separate shariah courts is elaborated upon at considerable length in the second booklet, whose sub-title describes this effort as ‘The Religious and Communitarian Duty [of the Muslims] and the Only Solution to Social Problems in Accordance With the Shariah’. It consists of an essay penned several decades ago by the rector of the Deoband madrasa, the late Qari Muhammad Tayyeb, who served as the first president of the AIMPLB from its inception in 1973 till his death a decade later.

Tayyeb begins his essay by claiming that the ‘Islamic justice system’ is an important and indispensable pillar of the shariah. Setting up separate dar ul qazas, headed by trained ‘ulama, is thus ‘a religious duty’, not something that Muslims can choose to ignore. The establishment of dar ul qazas is ‘the biggest issue’ confronting Muslims today, Tayyeb claims. To ignore this is ‘an unforgivable crime’. Islam provides laws for all spheres of life, and for Muslims to live by other laws is, therefore, ‘unbearable’.

Although, for obvious reasons, Tayyeb does not explicitly say this, he seems to argue that ideally Muslims must follow only Islamic laws in all spheres of life. However, recognizing the impossibility of this as long as Muslims remain a minority in India, he stresses that they must do so at least in their personal affairs, in matters presently governed under Muslim Personal Law, the only aspect of the shariah that has legal sanction in India today.

Despite the fact that Muslim Personal Law is recognized 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 vote, 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 dar ul qazas. Appointing an amir, Tayyeb says, is an Islamic command, and he quotes ‘Umar, the second Sunni Caliph, as saying, ‘Without the community there is no Islam; there is no community without an amir, and there is no amir without obedience’. Muslims, Tayyeb says, whether they live in the ‘abode of Islam’ (dar ul islam) or the ‘abode of war’ (dar ul harb) must always have an amir in order for them to live in accordance with the shariah. He backs his case with quotations from various Hanafi fiqh texts and the writings of several fellow Deobandis. However, recognizing the obvious difficulties in selecting a single amir, he also allows for the possibility of Muslim leaders forming a board that would function like an amir, and which would appoint qazis to judge disputes among Muslims.

Since Tayyeb’s argument is based on the books of traditional Hanafi ‘ulama, who obviously had no understanding of the values of modern political systems, he does not deal with the complications that this system of amir-ship is bound to contend with if Muslims seek to establish it in India today. He conveniently ignores the fact in India such a system is next to impossible, given the tremendous opposition it is bound to generate from the non-Muslim majority, as well as the sheer inability of Muslims, divided as they are by language, caste, region, ethnicity and sect, to unanimously agree to a single amir to govern their affairs or to be their representative. He remains curiously silent on the obvious possibility of the abuse of powers by the amir, seeming to rule this out on the grounds that he would abide by the shariah.

Given his reliance on medieval fiqh and his ignorance of the complexities of the modern world, he simply cannot envisage a system where Muslims are neither rulers nor the ruled but, at least in theory, co-rulers, or, simply, fellow citizens. Hence, he appears to see India as a country where Muslims are the ‘ruled’ and non-Muslims the ‘rulers’, equating it with Spain after the fall of Muslim rule. A text that he quotes from describes such a state as one where ‘kafirs [disbelievers] establish themselves over Muslims’. His call for a single amir whom all Muslims must obey and his use of the post-Qur’anic notions of the dar ul-islam and the dar ul-harb that reflect a sternly Manichean view of the world points to the feudal, monarchical imprint on medieval notions of the shariah, which the majority of the ‘ulama continue to uphold. It thus reveals a complete insensitivity to the demands of contemporary democracy.

Tayyeb insists on the need for Muslims to have their personal disputes judged by Muslim qazis in separate dar ul qazas, not in secular courts even if the latter recognize and apply Muslim Personal Law, as is the case in India . In part, this possibly represents a veiled distaste and suspicion of non-Muslims, who are generally seen by many traditionalist ‘ulama in stereotypically negative terms and who are regarded as unsuitable, on account of their religion, in judging over Muslims’ affairs. This might also reflect a deep-rooted aversion to non-Muslim judges interpreting Muslim Personal Law in a manner that conflicts with the understanding of the traditional ‘ulama, such as is reflected in some recent Indian court decisions by non-Muslim judges in favour of Muslim women, which the ‘ulama have opposed.

Tayyeb does not mention this, offering a somewhat different, although related, explanation for his opposition to non-Muslim judges adjudicating disputes between Muslims. He argues that while the British (like the present-day rulers of India ) did recognize Muslim Personal Law, because they did not seek the help of ‘knowledgeable’ ‘ulama but, instead, relied on judges with little knowledge of the shariah to interpret it, their judgments were ‘completely against the spirit of Islam’. Because of the inability of the British judges to ‘properly’ interpret and apply the shariah, he claims, ‘Muslims never trusted the government courts to solve their religion-related cases’ unless the judgments of these courts were corroborated by a reliable dar ul qaza.

Although he does not say so clearly, what he probably seeks to argue is that Muslims cannot accept the interpretation of the shariah by non-Muslim judges in Indian courts today, and hence the need for separate dar ul qazas manned by madrasa-trained ‘ulama. He backs his claim by asserting, without offering any examples, that there are ‘some special laws and problems in which the decision of a Muslim qazi is essential, there being no alternative to this’, and in the absence of which Muslims are subjected to ‘unspeakable difficulties’.

Turning to contemporary India , Tayyeb contends that a vast network of separate dar ul qazas manned by trained ‘ulama is an urgent necessity. This is because, he claims, today all aspects of Muslim identity, including Muslim Personal Law, are under grave threat, as part of an alleged ‘conspiracy’ to de-Islamise the Muslims and absorb them into the ‘national mainstream’. Since adhering to the shariah is central to Islamic identity, such courts must be established all over the country and all Muslims must seek redress from these courts in their personal disputes rather than from state courts.

He goes so far as to suggest that these parallel courts be given legal recognition by the Indian state. Revealing the traditionalist ‘ulama’s ignorance of the complexity of real-world politics, he claims that if a strong network of dar ul qazas is set up throughout India ‘there should be no difficulty’ in getting the Indian state to recognize them.All it needs, he says, blind to the obvious opposition that such a move is bound to generate, is a constitutional amendment that accepts the jurisdiction of the dar ul qazas in the personal affairs of Muslims. Yet, even if the state were not to recognize these courts, he argues, Muslims must voluntarily choose to have their disputes solved through them rather than through secular courts if they are to lead ‘proper’ Islamic lives and preserve and promote their Islamic identity. They must willingly accept the verdict of the qazis, and if they find the judgments unacceptable rather than appeal to state courts they must turn to the higher-level dar ul qazas for redress.

Tayyeb’s call for a vast, country-wide network of dar ul qazas throughout the country continues to be echoed by senior AIMPLB leaders. In the 2005 report of the activities of the AIMPLB’s central office, the Board’s president, Sayyed Muhammad Rabe Hasani Nadvi, is quoted as insisting on the need for dar ul qazas throughout the country, opposing Muslims’ taking their disputes to non-Muslim judges, a practice that he argues is ‘not in keeping with the mentality and the spirit of the shariah of Islam’. Setting up separate dar ul qazas, he says, is a means to ensure that ‘the shariah is applied by those most knowledgeable of it’, appearing to suggest, therefore, that non-Muslim judges are not qualified to do so. In his presidential address to the recent AIMPLB Bhopal convention Nadvi made the same point once again, claiming that dar ul qazas were a necessity because there was ‘little hope for getting decisions based on the shariah’ from judges in state courts.

While critics see the AIMPLB’s vision of a countrywide network of shariah courts as a pipedream, numerous ‘ulama groups in different parts of India have been busy seeking to put it into action. The AIMPLB has recently set up its own Dar ul-Qaza Committee, headed by a Deobandi scholar, Atiq ur-Rahman Bastvi Qasmi, to galvanise work on this ambitious project. In its recently-released report, the Committee discusses the considerable expansion of the dar ul qaza network in India in recent years. The most important of these initiatives is the Imarat-e Shariah of Bihar, Jharkhand and Orissa, based at Phulwari Sharif, Patna, established more than seven decades ago, which now has 26 dar ul qazas under it that have decided over 34,000 cases so far. The Imarat also offers training to would-be judges in dar ul qazas from different parts of India . A similar initiative is the Imarat-i Shariah of North East India, which has 88 dar ul qazas under its supervision. For its part the AIMPLB has a number of similar shariah courts affiliated to it, including one in Tamil Nadu, two in Delhi, three in Madhya Pradesh, four in Andhra Pradesh, five each in Uttar Pradesh and Karnataka and eleven in Maharashtra.

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. 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.The Board’s perceived mistrust of state courts, as reflected in its opposition to such courts in judging cases under Muslim Personal Law, can be held against it in a range of other cases, such as those related to Gujarat and the Babri Masjid dispute, in which the Board or other Muslim groups have approached the same courts to seek justice against right-wing Hindu groups. If the Board cannot trust the Indian courts to interpret and apply Muslim Personal Law, critics might rightly ask, why does it insist that the very same courts decide the ongoing Babri Masjid controversy? If the Board insists that in ‘religious’ matters Muslim qazis, and not judges of state courts, are best qualified, how is that different from the insistence of Hindu right-wingers that their will, and not that of the courts, must prevail in the Babri Masjid case?

For their part, many women’s activists will undoubtedly find the dar ul 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 dar ul qazas are all trained in a tradition of extreme patriarchal fiqh, it is obvious that Muslim women can hardly expect the dar ul qazas to provide them with the justice that they promise to. Likewise, Muslims struggling for a more progressive understanding of Islam will, of course, have no cause to rejoice, seeing the move to establish shariah courts as simply a means to bolster the sagging prestige of the mullahs of the madrasas who have little or no understanding of the contemporary world.

Yoginder Sikand is the author of Sacred Spaces: Exploring Traditions of Shared Faith in India and Inter-Religious Dialogue and Liberation Theology: Interviews with Indian Theologians and Activists

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