Tuesday, December 29, 2009

Shariah was never in India

Islam was brought to India by the invading Mughals and propagated with force. The natives were converted with force alright, but the invaders found it monumentally difficult to inculcate conduct in compliance with the Hadits or Shariah. Local customs and practices continued to be followed and Shariah could never be imposed on the converts. After all, it is difficult to change centuries old practices in the first place and that with something that was devised 1400 years ago in a far off foreign land much to the frustration of the Mughals. Try as they might – as Aurangazeb did – to impose the Islamic way of life, it was simply too difficult to force a foreign way of life.

One of the founders of Jamia Milia Islamia (and eventually it’s Vice-Chancellor), Prof. M. Mujeeb, records in his book Indian Muslims, that Shariah could never be enforced in India. And with the wane of Mughal rule after Aurangazeb, Shariah became even more irrelevant. The British began imposing laws that were far, indeed the opposite of Shariah.

The Khilafat movement was the fillip the orthodoxy needed and it brought them back to the table. Now the movement itself fizzled of course when the Caliphate was abolished in 1924, but significant momentum was gained. That led to evangelist movements to spread Islam and ‘purify’ it which in turn eventually led to the demand for Muslim Personal Law. Until then, Muslims all over India were governed by local Hindu customs and laws.

Muslims in Malabar and South Canara were followed the Marumakkathayam and Aliyasanthana laws. Local Hindu laws were followed by Bohras, Memons of Kutch, Khojas. Similar was the case in U.P. It was no different in Punjab, North West Frontier Province and other places. In fact, here’s Dr. Ambedkar countering Muslims members of the Constituent Assembly demanding an exclusive law for the Muslims alone –

My first observation would be to state that members who put forth these
amendments say that the Muslim personal law, so far as this country was
concerned, was immutable and uniform through the whole of India. Now I wish to
challenge that statement. I think most of my friends who have spoken on this
amendment have quite forgotten that up to 1935 the North-West Frontier Province
was not subject to the Shariat Law. It followed the Hindu Law in the matter of
succession and in other matters, so much so that it was in 1939 that the Central
Legislature had to come into the field and to abrogate the application of the
Hindu Law to the Muslims of the North-West Frontier Province and to apply the
Shariat Law to them. That is not all.
My honourable friends have forgotten,
that, apart from the North-West Frontier Province, up till 1937 in the rest of
India, in various parts, such as the United Provinces, the Central Provinces and
Bombay, the Muslims to a large extent were governed by the Hindu Law in the
matter of succession. In order to bring them on the plane of uniformity with
regard to the other Muslims who observed the Shariat Law, the Legislature had to
intervene in 1937 and to pass an enactment applying the Shariat Law to the rest
of India.
I am also informed by my friend, Shri Karunakara Menon, that in
North Malabar the Marumakkathayam Law applied to all-not only to Hindus but also
to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarchal
form of law and not a Partriarchal form of law.
The Mussulmans, therefore,
in North Malabar were up to now following the Marumakkathyam law. It is
therefore no use making a categorical statement that the Muslim law has been an
immutable law which they have been following from ancient times. That law as
such was not applicable in certain part sand it has been made applicable ten
years ago. Therefore if it was found necessary that for the purpose of evolving
a single civil code applicable to all citizens irrespective of their religion,
certain portions of the Hindus, law, not because they were contained in Hindu
law but because they were found to be the most suitable, were incorporated into
the new civil code projected by article 35, I am quite certain that it would not
be open to any Muslim to say that the framers of the civil code had done great
violence to the sentiments of the Muslim community. [

But the Muslim Personal Law, hoisted on India in 1937, itself is not fully compliant with Shariah. The law board is divided from within and has split a few times with different sects and women forming their own boards. And when you learn that few Muslims abide by it, it becomes clear that the demand for Shariah is a political tool for the orthodoxy to remain relevant and to seek concessions from the state and most importantly, to counter uniform civil code as mandated by the Constitution (article 44) which states "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." The demand for Shariah or personal law is retrograde, backward looking and contradicts our Constitution.

(Much of the above can be found in Arun Shourie's A Secular Agenda).

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