Illegalities of Shari?ah courts
By Balbir K. Punj
It was natural for Supreme Court to express alarm at the proliferation of Shari?ah courts across India. It is an affront and challenge to judiciary and the Constitution of India.
A Supreme Court bench of Y.K. Sabharwal and C.K. Thakker based on a PIL issued notices to the Union Government, All India Muslim Personal Law Board (AIMPLB) and States of Uttar Pradesh, Haryana, Assam, Madhya Pradesh, Rajasthan, West Bengal and Delhi. It has come to light that AIMPLB has already established Darul Qaza or Shari?ah courts in Thane (Maharashtra), Akola Dholiya (Rajasthan), Indore (Madhya Pradesh), Delhi, Asansol and Purulia (West Bengal), Lucknow and Sitapur (Uttar Pradesh). Radiance, the official organ of Jamaat-e-Islami Hind, has argued in favour of Shariah courts. According to Mohammed Abdur Rahim Quaraishi, Secretary of AIMPLB, ?In whatever part of the world they live, whether they are rulers or the ruled? Muslims should settle their mutual disputes in accordance with Shariah laws.?
India is having a wearisome experience of Islam in ways different from its terrorist variety. It is not merely the gun- touting Jihadis in Kashmir Valley or suicide bombers attacking Parliament that bother us. The demographic explosion of Muslims coupled with uninterrupted infiltration from Bangladesh is straining the fabric of India. The madrasas, churning out ?Arabised? Quranic robots in tens of thousands, jeopardises the future of civil society. The Wakf boards are meticulously pushing ahead their agenda of grabbing more lands/buildings that are ?tiny Islamistans? under the jurisdiction of Allah and Allah alone. The buck won'tstop at Taj Mahal, but perhaps at India itself that had been Dar-ul-Islam for six hundred years plus. Much of this vicious agenda is being pursued peacefully for ?Islam is a religion of peace?!
India is having a wearisome experience of Islam in ways different from its terrorist variety. It is not merely the gun-touting killers in Kashmir Valley or suicide bombers attacking Parliament that bother us. The demographic explosion of Muslims is straining the fabric of India.
The Dar-ul-Ulam'sfatwa on Imrana episode brought into fore another wearisome facet of Islam. Shariat law penalises a victim of rape by dissolving her marriage with her husband and counsels her remarriage with rapist but ironically it spares rapist of Shariat punishment of stoning by death. It was a poignant picture of human tragedy when the victim, in front of Chairman of National Commission for Women, agreed to abide by dictates of Dar-ul-Ulam. In such a situation, high talks of women'sliberation appear as remote as in moon. It revealed how much influence the clerics wield in Muslim society, and in what direction they are taking it. All this has already begun to encroach upon the sedulously cultivated secular space.
Muslims are not far too wrong when they call Islam a complete system. Islam as a religion (mazhab) is utterly incomplete without its jurisprudence (Shari?ah) and Sunna (praxis) of its Prophet. Thus Islam is not just another religion that is limited to spiritual life of a person and leaves him to participate as a normal social being in society. It also means that civil society will not be able to normalise its relationship with followers of Islam by acknowledging Allah or presenting chadars at tomb of Moinuddin Chisti. For many things pertaining to Islam lie outside the ambit of religion like its education, Wakf, and its judiciary.
Law is not merely a set of acts, provisions, precedents etc. There is a philosophy associated with law. The philosophy is that law must retain cause-and-effect principle. The most famous code of antiquity was Hamurabbi'slaw code in Babylon formulated in the 18th century BC. Ancient Greeks and Romans codified criminal, civil and commercial laws that became foundation of modern day laws made universal by Western powers. These are works of human intellect based on cause-and-effect principle and open to evolution. These might also vary from country to country viz. USA has capital punishment but the UK does not although both acknowledge Greeko-Roman origin of their laws. The ancient Jews on the other hand claimed to receive their laws (Torah) from God. Thus for ancient Jews law was another branch of theology?every sin was a crime and every crime was a sin. The Islamic law follows this pattern.
For, many things pertaining to Islam lie outside the ambit of religion like its education, Wakf, and its judiciary.
Islam claims a divine origin for its laws. It matters little whether the cause-and-effect principle holds good or not. For instance, witness of two women is equal to witness of one man. This might be irrational but it must be followed since Prophet Mohammed promulgated it. It is a shameful story why adoption of a child/orphan is forbidden in Islam, adoption can'ttake place since Mohammed had forbidden it. A thief'shand must be cut off; an adulterer must be stoned to death; and one who leaves Islam must also be stoned to death. But any crime committed against a kafir (non-Muslim) should attract no punishment. Killing of kafir, looting his property including livestock and womenfolk is legitimate. These are divine inspired laws of Islam although one might find them incredulous.
But except for a handful of countries like Saudi Arabia, Muslim countries don'tfollow Shari?ah in toto. Most follow modern laws in criminal and commercial matters keeping Shari?ah in personal matters. Since colonial era, Muslims follow modern laws in criminal and commercial matters because they are at an advantage in doing so. Ask a Muslim thief whether he will like to lose his hands as a tribute to Allah'sintelligence or serve three months imprisonment as tribute to human intelligence. The answer is any body'sguess. But do they have Allah'spermission?
In India also Muslims like to submit to IPC and Cr.PC when it comes to criminal justice. But when it comes to personal matters like matrimony they claim that Allah'sunalterable law should reign supreme. This while Tunisia, an Arab country, might abolish polygamy in 1956, India'sMuslims are deadly against it. Similarly, in debate over Census 2001. AIMPLB adopted its official position that family planning is against Islam. Marriage is a contract in Islam while sacrament in all other religions. Thus while a Hindu or Christian might have to go through painful and protracted process of law for getting divorce, a Muslim can finish the business by uttering the words talaq, talaq, talaq without even approaching a cleric, let alone a judge.
It is a shameful story why adoption of a child/orphan is forbidden in Islam, adoption can'ttake place since Mohammed had forbidden it. A thief'shand must be cut off; an adulterer must be stoned to death; and one who leaves Islam must also be stoned to death. But any crime committed against a kafir (non-Muslim) should attract no punishment.
The other important feature is that Shari?ah implies individually not territorially. Daniel Pipes has elucidated the issue in an article in 1995 ?The Western Mind of Radical Islam??In traditional Islam (as in Judaism), laws apply to the individual, not (as in the West) to the territory. It matters not whether a Muslim lives here or there, in the homeland or in the diaspora; he must follow the Shari?ah. Conversely, a non-Muslim living in a Muslim country need not follow its directives. For example, a Muslim may not drink whisky whether he lives in Tehran or Los Angeles; and a non-Muslim may imbibe in either place. This leads to complex situations whereby one set of rules applies to a Muslim thief who robs a Muslim, another to a Christian who robs a Christian, and so forth. The key is who you are, not where you are.
(The writer, a Rajya Sabha MP and Convener of BJP Think Tank, can be contacted at [email protected])