Those in Favour of Uniform Civil Code Want to Create Disturbance
DR. S.Q.R. ILYAS, who is member Working Committee of All India Muslim Personal Law Board; Convener, Compulsory Marriage Registration Committee; Joint Convener, Committee on Babri Masjid and Convener of Tafheem Shariat Committee, Delhi, shared his views on Shari’ah law, its acceptance and challenges in an interview with MOHAMMAD NAUSHAD KHAN
What is Shari’ah law and why is it necessary?
Basically, in India what we call Shari’ah law is more or less linked to family laws which in broader term is said to be Muslim Personal Law. Shari’ah laws were used in wider perspective but with the advent of Britishers Shari’ah law was confined only to family laws which means that Muslims’ family laws will be governed as per Shari’ah laws.
In 1937, when Shariat Application Act was formed and it was mentioned there that if both parties are Muslims then their family issues will be governed and settled through Muslim personal laws. And it was made clear that Nikah, Talaaq, Dissolution of Muslim marriage, Mehr, Nafqa, Custody, Khazanat, Waqf and Inheritance will come under the Muslim Personal Law.
Moreover, when India became Independent, the Shariat Application Act remained as it is. In 1939, one more law was enacted and it was Dissolution of Muslim Marriage Act (Fasq-e-Nikah or Nikah ka Qanoon) where it was elucidated as to how fasq-e-nikah can take place and what are their conditions in Shari’ah. These two acts were enacted by the Parliament and by doing so the guidelines and provisions of Shari’ah were kept in mind.
Post-Independence, in 1985 another act was enacted in which it was clarified that after divorce who will be responsible for maintenance after the iddat period. These all issues were incorporated in Muslim personal laws and were made crystal clear that all family issues will be resolved through Muslim personal laws under the guidance of Shari’ah.
What is historical and religious significance of Shari’ah laws?
As far as Muslims are concerned, it is clearly said that if there is any difference or dispute between them then they must try to get it resolved or find solution as per the guidance of the Qur’ān and Sunnah and if it is decided as per the Qur’ān and Sunnah then both parties must accept it and must not go against that decision or solution.
There are some laws which are related to Islamic rule and if there is Islamic rule then those laws will be implemented. For example, criminal laws which sanction lynching of hand and feet or punishment for rape or any other crime will only be imposed in a State under the Islamic rule. Since India is not an Islamic country, these laws cannot be imposed here.
Even before the Britishers came to India, Shari’ah laws were in practice in one or another form and nature. For example, Evidence Act was there, Trade related Act was there but when the Britishers arrived, they annulled some of these Acts but could not find courage to touch or downplay any provisions of the Muslim personal laws because family laws were linked to the identity of Muslims and any amendment or change in the personal laws could be considered an act to stop Muslims to follow Islam. Muslims will have to follow Personal law under every circumstance no matter if there is Muslim rule or not.
In Islam it is clearly said that law will be given only by Allah and in the Qur’ān it is said that khalk usi ka hoga aur amr bhi usi ka hoga, (when Allah has created human beings, the right to give law will be His only). In these Shari’ah laws the basic structure of Islamic laws is very much there. And if a particular situation arises, the Ulama can decide keeping in view the spirit of the Qur’ān, if it not available in the Qur’ān and Hadith. Muslim leader or anybody else is not authorised to enact law for which there are already laws in the Qur’ān and Sunnah. Family laws are related with the identity of Muslims and Muslims have always remained conscious about it. And whenever there has been any attempt to enact Uniform Civil Code, it has been strongly opposed by Muslims. It is also a fact that sometimes court’s rulings interfere with our personal laws and whenever the government has tried to enact any law or court has misinterpreted it then Muslims have opposed it with all in their might and will continue to do so.
Is there required awareness of Shari’ah Laws among Muslims? Are you satisfied with the way Muslims are practising Shari’ah law?
It is imperative that the Muslims who approach a court of law are not aware of the Shari’ah laws and are not equally aware of the guidelines of the Shari’ah laws. For example, for Talaq there is a set procedure stipulated in the Qur’ān and it has to be followed accordingly. Pronouncement of Talaq must be the last option; it has to be made in stages and not in one go. People declare it in one go because they are not aware of Islamic Shari’ah and as a result they end all options by pronouncing three Talaqs at one time. It is advisable that if there is any difference between husband and wife then first of all it needs to be resolved by themselves and then families of both sides can be involved and likewise all other options must be explored to resolve any issues because Talaq is to be said as the last option if all other means of reconciliation efforts fail.
In inheritance also there is general tendency not to give share in property to daughter or to sister thereby disobeying Shari’ah and at the same time there is lack of awareness in Mehr given to wife. It is best advised to pay Mehr when an individual gets married and if by any means he is not in a position to pay then it has to be firm in mind that it has to be paid. If an individual thinks that he is not going to pay Mehr then the marriage will not be considered valid. These are all issues on which the Ulema and religious scholars have to think and make people follow it in their daily life.
Our community is not completely aware of all these issues and their solution as per Shari’ah and here it becomes the responsibility of our Ulema to make people aware of it so that they might follow it as required and no problem arises out of ignorance.
Another important aspect is that under any given dispute it is advised to get it resolved as per law of Allah and Sunnah or to approach some institution like Darul Qaza which decides on the basis of the teachings and guidance of Allah and Sunnah. It is true that we do not have a large number of Darul Qazas as desired in our country and many people think that these Darul Qazas do not have any implementing mechanism and authority. Muslims are advised not to get their issues resolved from any batil or un-Islamic sources and those who do so may be termed as fasiq or zalim or kafir in the light of the Qur’ān. Despite these strong words, people are approaching courts to get their issues resolved; it results in interference and misinterpretation of Shari’ah law by the court. Despite Shariat Application Act and personal laws, courts draw inferences as they think to be without bothering about any deviation from the Muslim personal laws by wrong interpretation of the Qur’ān and Hadith thus paving the way for further dispute and problems.
Do you think these misinterpretations are done deliberately or out of ignorance?
There are three reasons for such misinterpretations. One is that the court believes that it can interpret the text of the Qur’ān and the Hadith. During debate in the Constituent Assembly it was clearly said that the court cannot interpret religious texts like the Bible, the Qur’ān and the Gita and its interpretation will be done through religious scholars of that particular religion so that misinterpretation does not take place. But unfortunately we can see that in case of Shah Bano how Surah Baqra (Ayat No. 241) was misinterpreted; and there are many more instances where it has been done.
In India, religious freedom is considered to be based only on faith and ibadah and as a result people are free what to follow. But as far as customary laws are concerned, these are customary and do change as per requirement and circumstances. In other religions family laws are not as codified as they are in Islam. In our Islamic text the tenet and the scripture of family laws and personal laws have been clearly defined; they are integral to the idea of religious freedom as enshrined in our Constitution.
The meaning of the Shariat Application Act is that family laws of Muslims will be governed as per Shari’ah so it would be wrong to say that religious freedom is only about faith and ibadah. There is general perception that in Islam women are ill-treated and not given due share. In Islam, witness of two women is equal to witness of one man and the right to Talaq is with man and not with woman. Under all these impressions it is perceived that the male dominated society is not fair to women and those who say so are not aware of the essence and the spirit under which these provisions have been pronounced. After marriage, husband takes all responsibilities of wife and he signs the agreement of marriage; therefore only he is entitled to break the agreement and has the right to disown it. It must be made clear that it is not because of the male dominated society.
Furthermore, if a woman is doing any business or earning money from job then she will have total control of that income; her father or husband has not right over her income. The court also thinks that laws made by man have generally discriminated against women but it must be made clear that Islamic laws made by Allah cannot discriminate men and women as Allah treats everyone equally; and therefore it is illogical to think that women are discriminated as per Shari’ah and Islamic laws.
Is there any monitoring mechanism available with the Muslim Personal Law Board to review awareness, and acceptance of Shari’ah laws among Muslims?
The purpose of the establishment of Muslim Personal Law Board is to ensure that there is no interference in Shari’ah laws and our legislature should not make any act which seizes our freedom to follow Shari’ah and our Courts do not pass any order which may come in way to follow Shari’ah laws by Muslims. If there is any order given by the Supreme Court, it is considered a law and then lower courts decide on the basis of the Supreme Court order or guidelines.
Another purpose is how to stop threats to personal laws emanating from within the community. Those deciding out of ignorance or not having knowledge of Shari’ah bring bad name to the Muslim community and those deliberately revolt against Shari’ah in fact revolt against Allah. The basic responsibility of Muslim Personal Law Board is to ensure that there are no external and internal threats to Shari’ah laws and to remind that any revolt is revolt against the Almighty and His laws which will ultimately endanger the individual’s worldly and eternal lives.
There are Imrat Shari’ah and Darul Qazas at various places but their number is very less. So far we have not been able to convince the entire Muslim community to get their issues resolved only through established bodies that decide on the basis of Shari’ah and what are the dangers if they do not follow Shari’ah.
How is Uniform Civil Code dangerous for minorities and other groups in a plural society? What would be the aftermath effect of Uniform Civil Code?
So long there is Article 25 there are Constitutional safeguards available for minorities. Uniform Civil Code cannot be imposed because along with religious freedom there has to be customary freedom and personal laws are integral to religious freedom. If a country holds that that there should not be any social disturbance, then there has to be religious freedom which is there in a democratic country because it is a fundamental right. Those advocating for Uniform Civil Code say that there has to be a homogeneous society and for the sake of national integration Uniform Civil Code is necessary.
India is known for unity in diversity and to embark on unity does not mean diversity should be abolished and if you try to end diversity unity will get destroyed. Then how can homogeneity be achieved? Those in favour of it are secular people, Leftists and people from Hindutva brigade. Here, it becomes essential to remind them that their spiritual Guru Golwalker once categorically said that Uniform Civil Code cannot be imposed in a country like India and its imposition would be against the unity of India.
If we consider the Hindu law and travel to north, south-east or the west, we can find the differences in their family laws and rituals. Even if it is difficult to ensure uniformity in one community, how can one think to achieve total uniformity across India? The government has constitutionally agreed not to make any law that will supersede the tribal family laws of Nagas and Kukis, then how can the government think of Uniform Civil Code?
Another aspect is that the secularists demanding Uniform Civil Code are not aware that secularism in India is not based on the concept of secularism in the West. Our country does not accept the concept of secularism of the West. If our concept of secularism was that of the West then there would not have Article 25 in our Constitution. In India, religion has been accepted as a reality and our country is not religious or anti-religious; it promotes religion, likes religion, provides opportunity to promote religion and allows establishing religious institutions. And those who are trying to impose the concept of West and Europe are illogical and against the spirit of our Constitution.
Now, let me make it clear where it has been said about Uniform Civil Code. It is said in Article 44 and it seems people have not read Article 44 completely because a lot more has been said in Article 44 about total prohibition. Why these people do not speak about that? Those who drafted the Constitution made it clear that Uniform Civil Code will not be imposed so long Muslims are not ready for that. During the Deve Gowda regime, the government submitted in writing to the Supreme Court that Uniform Civil Code will not be introduced as long as Muslims disagree. Muslims have many times opposed it and will continue to do so and those who are advocating it want to create disturbance in the country and destabilise peace and tranquillity in the country and will further hurt the sentiments of Muslims.
Which country has practised Shari’ah Laws best?
Unfortunately, there is no country in the world where it can be said that it has imposed Shari’ah laws in totality and effectively. Some measure of Shari’ah laws is in practice in most of the countries because there is no Islamic state as desired under Islam or was there during the regime of Prophet Muhammad (peace and blessings of Allah be to him).
What more should be done to make Muslim Personal Law Board more effective?
In order to make it more effective, there has to be more representation from all sects and schools of thought. In the current term, Muslim Personal Law Board has tried to have representatives from all places and from all sects. There has to be representation of all Deeni and Milli jamaat of Muslims, representation of all big religious institutions and Madrasas, important personalities like Ulema and intellectuals. There is a feeling that temporary members are inadequate and more people should be made members to incorporate all valued people. But at the same time it is also felt that too many numbers will overburden it and may be an obstacle for the Board to work effectively as desired. No doubt, efforts should be made for proportional representation.
Muslim Personal Law Board should not intervene in matters other than Personal Laws. It should evolve a mechanism to monitor all decisions taken by Parliament, Assemblies and Courts and must object and intervene if necessary. There is requirement of a strong and sound legal team to monitor judgments and proceedings in lower courts and higher courts so that they can intervene in time to ensure that damage is not done or Sahriah laws are not encroached upon. Generally the Board comes into action only when things get reported in the media and by that time the damage has already been done.
It is my personal opinion that the Board should take the responsibilities of maintenance of destitute divorced women and think in that direction because most of the Waqf boards have inadequate funds and resources to meet these requirements. It will also send good message that how we take care of destitute Muslim women.