Dr. MOHAMMED RAZIUL ISLAM NADVI is Secretary of Shari’ah Council of Jamaat-e Islami Hind (JIH) and also Secretary of Department of Islami Muashirah, JIH. He is Vice President of Idara-e-Tahqeeq-o Tasneef-e Islami, Aligarh and member of All India Muslim Personal Law Board (AIMPLB). Dr Nadvi is also member of Darul Qaza Committee of AIMPLB. He is author of many books and a noted religious scholar. In an interview with MOHD NAUSHAD KHAN, he said in issues pertaining to Shari’ah and Personal laws governments and courts should verify their viewpoints with experts of Shari’ah before arriving at any final opinion on any issue.
What is Shari’ah and its historical background?
Shari’ah literally means “the path to water.” In religious terms, Shari’ah means “the righteous path” or “the path of God.” In other words, Shari’ah is Islamic guidance for every aspect of life, from birth till death. There are four sources of Shari’ah: two primary and two secondary sources. The Qur’ān and Sunnah are the two primary sources. The reference we get from Muaz ibnJabal, who was asked to go to Yemen as governor by Prophet Muhammad ﷺ. Prophet Muhammad ﷺ asked him how you would deal with queries regarding Shari’ah there and how would you resolve the issue of the people there? He said, “I will refer to the Qur’ān to find Qur’ānic guidance.” The Prophet then asked what you will do when you can’t find it in the Quran, he said, “I will look for it in Sunnah.” The Prophet ﷺ again said, if you are unable to find it in Sunnah then what will you do, he said, “I will try to apply my mind to think on it and while doing so I will make sure that I am doing the right thing.”
The other terms are Ijma and Qiyas. Ijma means consensus of the Prophet’s Companions on any given issue after the death of Prophet Muhammad ﷺ. Qiyas means resolution of any given issue after analysing the earlier Shari’ah opinion thereon. Its historical background dates back to the life of Prophet Muhammad ﷺ. Even after the death of Prophet Muhammad ﷺ the Ulema through different ages have guided through their intellect and wisdom in the light of the Qur’ān and Sunnah.
Lately, the four schools of thought – Ḥanafī, Mālikī, Shāfiʿī and Ḥanbalī – through reasonable thinking resolved many emerging issues and problems of the time. While deliberating on issues they had some differences. However these schools of thought had no differences on what is clearly specified in the Qur’ān and Sunnah. Despite differences it was left for the Ummah to follow accordingly any school of thought.
Objectives of Shari’ah is one chapter in Usool al-Fiqh (Principles of Fiqh). One is Fiqh and the other is Principles of Fiqh. In Fiqh, ahkam (rulings) are described to the point and Usool al-Fiqh are derived from the facts.
There are five basic objectives of Shari’ah. They are protection of Deen, life, material, knowledge and dignity. Later on, some more were added to it by the Ulema like basic rights of human beings and justice.
What was the basic purpose of Shari’ah Council established by the Jamaat?
In the Jamaat framework there is no maslak as far as Fiqh is concerned. The members of Jamaat can be followers of any one of four schools of thought. Most of them are followers of Hanafi school of thought. The Jamaat members in South India are mostly followers of Shāfiʿī school of thought and Ahle Hadith as well. The Jamaat does not interfere in any way in the sectorial affairs of its members.
Later on it was thought to have a platform where people can clear their doubts, if any, individually or collectively, locally, regionally or nationally. Earlier, their questions were put before the religious scholars at its headquarters and their questions were replied accordingly.
In the current term, Shari’ah Council has been established with some objectives. Arkan (members of Jamaat) can individually send their written queries to get answer from Shari’ah Council. Collectively, if members of the Jamaat are facing any issue: for example, if a state makes law that no one should have more than two children or all those having more than two children should quit their job then they can approach the Shari’ah Council for guidance.
In general, questions were also raised concerning the entire Ummah as to what should be done to maintain social distancing during lockdown while offering namaz in mosques. Can namaz be offered while wearing mask or can Friday or Eid prayers be offered in houses? Whether one should take vaccines or not? The Shari’ah Council at that point of time issued guidelines on various occasions to answer all these queries.
If there is any issue within the Jamaat then the Shoora (Advisory Council) will seek guidance from the Shari’ah Council. And the Shari’ah Council will guide as and when required. These are the basic functions and objectives of the Shari’ah Council.
While providing guidance, the Shari’ah Council gives guidance not only on the basis of Hanafi school of thought but on all schools of thought on queries received so that people belonging to any school of thought can get satisfactory answer and follow accordingly.
What are the challenges to the Shari’ah with the kind of atmosphere we are in today in India?
The challenges the Muslims are facing here are galore. The Muslims are constitutionally free to follow and practise Shari’ah; but this freedom is being denied and efforts are on to curtail the constitutional freedom to follow Shari’ah.
The difference between Muslims and Non-Muslims is that Non-Muslims have divided their life into two parts namely private and public life. In private life, they have the freedom to follow their religion. In public life, the government has right to make any law. But Islam does not divide the life of its followers into two parts. In Islam Muslims are supposed to follow Shari’ah be it private or public life.
Is Nikah permissible between Muslims and Non-Muslims? What is the procedure of ending Nikah? What is the guidance for Talaq? What is the procedure of Khula? What is the guidance for Wirasat (inheritance)? For all these, Muslims are bound to follow Shari’ah. For Muslims, the laws related to public life and social life are termed as personal laws. In our country, all religious communities have freedom to follow, practise and propagate their religion. The Constitution also guarantees such freedom.
But through enactment of various laws, the Muslims are being deprived of their religious freedom as enshrined in the Constitution. Some two years ago, the ruling on Triple Talaq which contradicts the Muslim Personal laws. As per the law, if someone utters Talaq three times in one go, it will not be valid whereas all schools of thought of Muslims believe it would be valid. The only difference is whether the Talaq given three times in one sitting would be considered one or three times. These are challenges Muslims are facing.
What should be done to ensure that Shari’ah laws are not misinterpreted by courts?
It is true that judges in courts do not follow the guidelines and basic spirit of the personal laws. They generally interpret in their own ways. For example, one has expertise in engineering profession and the other in medical profession. An engineer does not have the right to give his opinion or intervene in medical profession and vice-versa. The experts of each field should have the right to give his opinion to the profession he is associated with. Similarly, opinion should be taken by the experts of Shari’ah laws. The judges should seek opinion of these experts and then arrive at any conclusion so that it is not misinterpreted.
Another example, on the issue of Hijab the court was supposed to give judgment whether girls have right to wear Hijab or not? But the court went a step ahead by saying that Hijab is not essential in Islam. Now once again what is essential in Islam or not should have been decided by the experts from Muslims and not by judges.
One important factor is that so far books written for interpretation of Shari’ah laws are not up to the mark. The judges on issues pertaining to Muslim personal laws decide on the basis of Mohammedan Law which does not interpret the spirit of Muslim Personal Law. The judges can take reference from those available materials but after that they should try to verify those references with religious scholars who have expertise in Shari’ah laws. Some of the books on Mohammedan Laws were written by Parsis so there may be possibility that they may not have been written keeping in mind the spirit of the Shari’ah laws derived from the Qur’ān and Sunnah and some other authentic available sources.
All India Muslim Personal Law Board was established in 1973 and since then it has been the responsibility of the Board to codify Shari’ah laws and get them translated into other regional languages in order to make it a ready reference for authentic document of Shari’ah laws and used by courts for interpretations as and when required. The work for codification by the Board is in progress but has not been completed.
AIMPLB has published codified version of Islamic Shari’ah injunctions arranged section-wise dealing with marriage, divorce, guardianship, custody, Khula, Zihar, Li’an, Ila, Iddat, etc. in Urdu entitled “Majmua-e-Qawaneen Islami” and its English version has been entitled, “Compendium of Islamic Laws,” which is yet to be published. The Board should try to talk to the Government and courts to use these codified documents on issues pertaining to Muslims and their personal laws. In this manner misinterpretation of Shari’ah laws can be avoided.
Is the idea of Uniform Civil Code biggest threat to Shari’ah laws?
It is true that the issue of Uniform Civil Code has been raised from time to time. There is a dichotomy in our Constitution. One the hand, it is said that religious freedom is the constitutional right of every religious minority but on the other hand it is also said that the Government will gradually try to impose Uniform Civil Code. It is contradictory to each other. At the time when the Constitution was being written, the Muslim parliamentarians were aware of these contradictions and objected to it. But they were assured that if the need for Common Civil Code arises in future the Government will talk to all stakeholders and it can only be imposed if there is consensus within all communities. Given the kind of socio-cultural diversity within religious groups and various castes and tribes with varied rituals and customs it is almost difficult to have Uniform Civil Code. Even within various Hindu communities and tribes there cannot be consensus on Uniform Civil Code, keeping in minds their diverse rituals and customs. Keeping all these complexities in mind, the Government should forget the idea of Uniform Civil Code for ever.
What would you like to say on the argument that Darul Qazas are parallel courts?
AIMPLB has established more than 100 Darul Qazas (Shariat courts) in the country. There are also Darul Qazas established by a couple of other socio-religious groups. In a Darul Qaza, the Qazi solves civil disputes or suggests ways for separations if issues aren’t solved. Earlier, these Darul Qazas were challenged in the Supreme Court by claiming that these Darul Qazas are courts within courts or they are parallel courts. The argument put forward by the Board in this case was that the system of Darul Qazas does not in any way intervene in the functioning of courts but instead it has always supported the Courts.
In courts we can see the backlog of cases and the fees of the lawyers where poor people can hardly afford to file their cases. If these Darul Qazas are solving problems then eventually they are supporting the courts and not running parallel courts. Cases are solved in Darul Qazas in a very short period as compared to courts and provide justice with minimum expenses. The Supreme Court accepted the arguments put forward by the Board that Darul Qazas are not parallel courts and they are trying to reduce the burden of the courts and are supporting courts.