The Supreme Court ruling on July 7 that Islamic Shariat law was not legally binding on Muslims and fatwas must not violate rights of individuals guaranteed by the Constitution comes at a very critical time in India’s and the world’s history.
In India it has come just after the electorate gave an overwhelming majority to the NDA led by the BJP that has consistently opposed appeasement of fundamentalist sections of Muslim society by the previous regime in the name of secularism. The result of the appeasement has been the blank cheque that Islamic orthodoxy got to impose its will against any rational interpretation of what goes on in the name of their personal law.
Consider the event that triggered the PIL on fatwas claiming to be based on Shariat law. In the name of personal law’s divine sanction it was ruled that a woman raped by her father-in-law was asked to live with the rapist as his new wife and abandon her husband.
The fact that the leaders of the community did not lift a little finger to help the unfortunate woman, first a victim of rape by her father-in-law and then a double victim as she has to abandon her husband. No word came from the community leaders about the rapist himself!
In the recent electoral verdict was subsumed the bitter anger of many against such interpretations in the name of divinity of the Muslim personal law. That could also explain why in several Muslim localities the BJP made substantial electoral gains with many analysts seeing in it the emerging anger of Muslim youth particularly against such religious legal systems. Probably, the awareness among the community’s rabid leaders that Muslims are seeing their real interest in joining mainstream India might also explain the muted reaction of these leaders now to the court’s verdict on the applicability of the Shariat law.
The apex court’s bench presided by Justice C K Prasad has clarified what stand fatwas under Shariat law can have. It pointed out that the authority that issues such fatwa citing Shariat law “is neither created nor sanctioned by any law made by the competent legislature”. Such orders “issued by Dar-ul-Qazar or for that matter anybody (emphasis ours) is not adjudication of dispute by an authority under a judicial system sanctioned by law.”
The mainline reaction of Muslim clerics and leaders was muted. “We are not doing anything parallel to the judicial system and we don’t say that any order passed by a Qazi is binding on all” was all that Zafrul Jilani, member, Muslim Personal Law Board (no government appointed body under any law) said in response.
Imagine what would have been the reaction in the situation of the 1980s soon after the apex court declared in the landmark Shah Bano case that a divorced woman had the right under Indian law to maintenance from her ex-husband.
At that time the Islamic orthodoxy joined hands and demanded of the then Rajiv Gandhi Congress government that the impact of the court’s verdict be overturned by enacting a law to define Muslim divorcee’s right to be only that much that was sanctioned by Shariat (Muslim personal) law.
In other words, the human rights of an Indian citizen would be not what the Constitution says it is, but what the Sharia court defines it to be. The then government succumbed to the Muslim orthodoxy’s pressure. Thereby, it uprooted even a little bud of hope that the apex court planted that all citizens of India will live by and not just under one law that is based not on religion but on modern ideas of democracy and inviolable human rights, especially of Muslims.
The precipitate descent towards more resistance to any change, demand that secular laws should not be bound on the community which should be governed separately from laws under the constitutional principles, the enclave mentality and all other consequences followed.
It was in this environment in the late 1980s that the militancy in Kashmir got strengthened by incursion of so-called mujahideens who were part of the global, mainly Pakistan-based movement of a separate Shariat law for Muslims.
In Pakistan itself the dictator General Zia had changed the Constitution to ensure that no law against the spirit of Sharia could be enacted and that anyone who questioned Islam would be declared an apostate and condemned to die.
The terrible consequences of these developments continue to hit Pakistan even at this moment with the two Islamic sects, Sunnis and Shias, killing each other in the name of pure Islam, in the vast tribal tracts of Waziristan, tribal chieftains imposing their version of Shariat law and executions of anyone condemned by kangaroo courts becoming daily occurrences.
The Muslim orthodox leadership in India that has also used the community as a mass weapon to oppose any change in what it declares as the content of the Muslim personal law would be well aware that after May 16 the capability has been greatly blunted. Also, it is aware that a truly secular development agenda encasing all and preferring none has captured imagination of some among the Muslims now.
Therefore, we need not foresee at least for now, any move reminiscent of 1986 of attempts to nullify the apex court’s verdict and get Parliament to pass a law to give legal sanction to Sharia courts.
But the danger is at another level. The underground murmur and propaganda that Muslims should be ruled only by the Caliphate and that what is interpreted as Sharia law should be imposed on Muslims are very much part of militant movements like the IM.
In fact it is the romantic idea of the ills that the Muslim community suffers from arises from its neglect of the Sharia law that is being used by Islamic militancy to mislead the Muslim youth. That throwback to the Middle Ages is keeping the trench lines of Islamist militancy and suicide missions filled day after day in West Asia including Pakistan and Afghanistan. Through its verdict the Supreme Court has indirectly helped give a turn to Muslim politics in this country that has so far been a Congress hand feeding of hardline, ghetto mindset and Middle Age throwback leadership of the Muslim community.
One positive development from the verdict would be strengthening the Constitutional provision calling for a uniform civil code. With the apex court declaring that the Constitution’s commitment to fundamental rights as decisive in questions of personal law, the directive principle on uniform civil code is back on its pedestal.
The author is national vice president, BJP.