An Outrageous Proposal

Atits recently-held eighteenth national conference in Bhopal, the All-India MuslimPersonal Law Board (AIMPLB) reiterated its long-standing demand that Muslims,particularly the ‘ulama and headsof various Muslim community organizations,must work towards establishing a ‘vast network’ of darul qazas or shariah courtscovering 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’sMuslims.

Rightsince its inception in 1973, the Board has been consistently demanding thesetting up of dar ul qazas in orderto administer what it describes as ‘Islamic justice’. This effort has gainedconsiderable momentum in recent years. The Board’s ambitious project isoutlined in its recently published two-part Urdu booklet, ‘Nizam-eQaza Ka Qayyam’ (‘The Establishment for a System of Islamic Justice’),which lays out a grand plan of establishing a separate system of ‘Islamiccourts’ in the country.

Thebooklet describes the need for such courts as an Islamic imperative, arguingthat Muslims are bound to govern their lives in accordance with the laws of the shariahif they are to remain true to the dictates of their faith. True justice can behad only by following God’s laws, which the booklet equates with thetraditional understanding of the shariahupheld by the ‘ulama. Not to followthese laws is described as a ‘great crime’, which the Qur’an is said tocondemn as ‘infidelity’ (kufr)and ‘oppression’ (zulm).

Althoughfor the ‘ulama, such as thoseassociated with the Board, ideally the whole gamut of Islamic laws, includingcriminal and civil laws, should be enforced, they are realistic enough to makeconcessions for Muslims living as minorities in non-Islamic states such asIndia. Hence, the booklet restricts its advocacy of shariahlaws to the personal sphere covering family matters, such as marriage, divorce,adoption and inheritance.

Notwithstandingthe fact that the Indian Constitution recognizes Muslim Personal Law and Indiancourts are empowered to deal with cases under this law, the booklet demands thatMuslims should set up their own courts headed by trained ‘ulamato solve their own disputes instead of taking them to the state courts. Itinsists that to do so is an ‘Islamic duty’ and claims that willingly abidingby the decisions of these courts is a means to ‘win Allah’s pleasure as wellas welfare in the Hereafter’. It also argues that parallel darul 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’.

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

Tayyebbegins his essay by claiming that the ‘Islamic justice system’ is animportant 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. Theestablishment of dar ul qazas is‘the biggest issue’ confronting Muslims today, Tayyeb claims. To ignore thisis ‘an unforgivable crime’. Islamprovides laws for all spheres of life, and for Muslims to live by other laws is,therefore, ‘unbearable’.

Although, for obvious reasons, Tayyeb does notexplicitly say this, he seems to argue that ideally Muslims must follow onlyIslamic laws in all spheres of life. However, recognizing the impossibility ofthis as long as Muslims remain a minority in India, he stresses that they mustdo so at least in their personal affairs, in matters presently governed underMuslim Personal Law, the only aspect of the shariahthat has legal sanction in India today.

Despitethe fact that Muslim Personal Law is recognized by the Indian state, Tayyeb,echoing the views of the ‘ulamaassociated with the AIMPLB, insists on the need for Muslims to have their ownparallel 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. Throughthis, he quotes a noted fellow Deobandi ‘alimas declaring, ‘All the problems that Muslims are today confronted with wouldbe 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 beto nominate qazis or judges and muftisat the provincial and local level to dispense Islamic justice through a networkof dar ul qazas. Appointing an amir,Tayyeb says, is an Islamic command, and he quotes ‘Umar, the second SunniCaliph, as saying, ‘Without the community there is no Islam; there is nocommunity without an amir, and thereis no amir without obedience’.Muslims, Tayyeb says, whether they live in the ‘abode of Islam’ (darul islam) or the ‘abode of war’ (darul harb) must always have an amirin order for them to live in accordance with the shariah.He backs his case with quotationsfrom various Hanafi fiqh texts andthe writings of several fellow Deobandis. However, recognizing the obviousdifficulties in selecting a single amir,he also allows for the possibility of Muslim leaders forming a board that wouldfunction like an amir, and whichwould appoint qazis to judge disputesamong Muslims.

SinceTayyeb’s argument is based on the books of traditional Hanafi ‘ulama,who obviously had no understanding of the values of modern political systems, hedoes not deal with the complications that this system of amir-shipis bound to contend with if Muslims seek to establish it in India today. Heconveniently ignores the fact in India such a system is next to impossible,given the tremendous opposition it is bound to generate from the non-Muslimmajority, as well as the sheer inability of Muslims, divided as they are bylanguage, caste, region, ethnicity and sect, to unanimously agree to a single amirto govern their affairs or to be their representative. He remains curiouslysilent 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 fiqhand his ignorance of the complexities of the modern world, he simply cannotenvisage a system where Muslims are neither rulers nor the ruled but, at leastin 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 astate as one where ‘kafirs[disbelievers] establish themselves over Muslims’. His call for a single amirwhom all Muslims must obey and his use of the post-Qur’anic notions of the darul-islam and the dar ul-harb thatreflect a sternly Manichean view of the world points to the feudal, monarchicalimprint on medieval notions of the shariah,which the majority of the ‘ulamacontinue to uphold. It thus reveals a complete insensitivity to the demands ofcontemporary democracy.

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

Tayyeb does not mention this, offering a somewhat different,although related, explanation for his opposition to non-Muslim judgesadjudicating disputes between Muslims. He argues that while the British (likethe 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 shariahto interpret it, their judgments were ‘completely against the spirit ofIslam’. Because of the inability of the British judges to ‘properly’interpret and apply the shariah, heclaims, ‘Muslims never trusted the government courts to solve theirreligion-related cases’ unless the judgments of these courts were corroboratedby a reliable dar ul qaza.

Althoughhe does not say so clearly, what he probably seeks to argue is that Muslimscannot accept the interpretation of the shariahby non-Muslim judges in Indian courts today, and hence the need for separate darul qazas manned by madrasa-trained‘ulama. He backs his claim byasserting, without offering any examples, that there are ‘some special lawsand problems in which the decision of a Muslim qaziis essential, there being no alternative to this’, and in the absence of whichMuslims are subjected to ‘unspeakable difficulties’.

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

He goes so far as to suggest that theseparallel courts be given legal recognition by the Indian state. Revealing thetraditionalist ‘ulama’s ignoranceof the complexity of real-world politics, he claims that if a strong network of darul qazas is set up throughout India ‘there should be no difficulty’ ingetting the Indian state to recognize them.All it needs, he says, blind to theobvious opposition that such a move is bound to generate, is a constitutionalamendment that accepts the jurisdiction of the darul qazas in the personal affairs of Muslims. Yet, even if the state were notto recognize these courts, he argues, Muslims must voluntarily choose to havetheir disputes solved through them rather than through secular courts if theyare to lead ‘proper’ Islamic lives and preserve and promote their Islamicidentity. They must willingly accept the verdict of the qazis,and if they find the judgments unacceptable rather than appeal to state courtsthey must turn to the higher-level dar ulqazas for redress.

Tayyeb’scall for a vast, country-wide network of darul qazas throughout the country continues to be echoed by senior AIMPLBleaders. In the 2005 report of the activities of the AIMPLB’s central office,the Board’s president, Sayyed Muhammad Rabe Hasani Nadvi, is quoted asinsisting on the need for dar ul qazasthroughout the country, opposing Muslims’ taking their disputes to non-Muslimjudges, a practice that he argues is ‘not in keeping with the mentality andthe spirit of the shariah ofIslam’. Setting up separate dar ulqazas, he says, is a means to ensure that ‘the shariahis applied by those most knowledgeable of it’, appearing to suggest,therefore, that non-Muslim judges are not qualified to do so. In hispresidential address to the recent AIMPLB Bhopal convention Nadvi made the samepoint once again, claiming that dar ulqazas were a necessity because there was ‘little hope for gettingdecisions based on the shariah’from judges in state courts.

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

TheBoard’s project of what is, for all practical purposes, a parallel legalsystem in the country is bound to generate considerable controversy. On the onehand, it does appear to offer a cheaper and speedier means of justice, and onepossibly less corrupt, than the state courts. Yet, this is overshadowed by whatmany might see as its ominous implications. It is bound to meet with stiffopposition, 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 Muslimseparatism and as an indication of a lack of faith in India’s judiciary.The Board’s perceived mistrust of state courts, as reflectedin its opposition to such courts in judging cases under Muslim Personal Law, canbe 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 Muslimgroups have approached the same courts to seek justice against right-wing Hindugroups. If the Board cannot trust the Indian courts to interpret and applyMuslim Personal Law, critics might rightly ask, why does it insist that the verysame courts decide the ongoing Babri Masjid controversy? If the Board insiststhat in ‘religious’ matters Muslim qazis,and not judges of state courts, are best qualified, how is that different fromthe insistence of Hindu right-wingers that their will, and not that of thecourts, must prevail in the Babri Masjid case?

Fortheir part, many women’s activists will undoubtedly find the darul qaza project a distinct move towards legal apartheid for Muslim women.Given the overwhelming presence of traditionalist ‘ulamaon the Board who have been reluctant to allow Muslim women access to even theirfull range of Islamic rights, and considering that the ‘ulamawho would staff the dar ul qazas areall 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. Likewise,Muslims struggling for a more progressive understanding of Islam will, ofcourse, have no cause to rejoice, seeing the move to establish shariahcourts as simply a means to bolster the sagging prestige of the mullahs of the madrasaswho 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