Every time secular India has demanded that the system of personal laws based on religious injunctions should be done away with, that Article 44 of the Constitution of India which enjoins upon the government to adopt a Uniform Civil Code should be taken for what it was meant to be, a cornerstone of State policy in a modern nation state, a countervailing cry has gone up, alleging that it is an assault on the identity of minority communities.
That, of course, is a misnomer; what those opposed to a Uniform Civil Code mean is that the State should not interfere with retrograde personal laws that discriminate on grounds of gender, laws which are not in tune with the social realities of the 21st century. The best example of such laws is the Muslim personal law that remains unaltered in sum and substance despite vacuous words of assurance by leading lights of the ulema.
The All-India Muslim Personal Law Board, which has vested itself with full and absolute powers, though it enjoys neither legal sanctity nor official approval, to implement personal law, at its recent conference in Bhopal has presented what is being described as a 'model nikahnama.'
While self-proclaimed progressives, who have never had to suffer the inequities of personal laws, have been quick off the mark to hail this 14-page document as a big leap forward, Muslim women who have been agitating against the discrimination they face have denounced it as nothing more than cosmetic tinkering.
Lost in the debate is the crucial fact that the All-India Muslim Personal Law Board is nothing more than the personal enterprise of ulema and alim, apart from maulanas who teach at seminaries. By its own admission, the All-India Muslim Personal Law Board was established in 1972-1973 'at a time when then Government of India was trying to subvert shariah law applicable to Indian Muslims through parallel legislation.'
The immediate backdrop was the introduction of the Adoption Bill in Parliament by H R Gokhale, then Union law minister. While introducing the Bill he had described it as 'the first step towards Uniform Civil Code.'
This triggered an alert among the ulema, which immediately went on the offensive, decrying the Bill as an attempt to dilute, to quote the All-India Muslim Personal Law Board, the separate identity of Indian Muslims. The 'risk of losing applicability of shariah laws was real and a concerted move by the community was needed to defeat the conspiracy,' the All-India Muslim Personal Law Board says of its history.
This is what the All-India Muslim Personal Law Board web site says: 'It was a historic moment. This was the first time in the history of India after Khilafat Movement that people and organisations of Indian Muslim community belonging to various schools of thought came together on a common platform to defend Muslim Personal Law.'
The first meeting to 'save shariah' was convened at Deoband at the initiative of Hazrat Maulana Syed Shah Minnatullah Rahmani, Ameer Shariat, Bihar and Orissa, and Hakeem-ul Islam Hazrat Maulana Qari Mohammad Taiyab, Muhtamim, Dar-ul Uloom, Deoband. At the meeting it was decided to hold a convention at Mumbai on December 27-28, 1972.
The web site provides further details: 'The convention was unprecedented. It showed unity, determination and resolve of the Indian Muslim community to protect the Muslim Personal Law. The Convention unanimously decided to form All India Muslim Personal Law Board. As per the decision of the Mumbai Convention, the All-India Muslim Personal Law Board was formally established at a meeting held at Hyderabad on April 7, 1973.' The purpose: 'To adopt suitable strategies for protection and continuedapplicability of Muslim Personal Law, ie, Shariat Application Act, in India.'
Since then, the All-India Muslim Personal Law Board has consistently insisted that 'sharia' is beyond reach and scope of India's courts of law. The Supreme Court's judgement ordering maintenance for Shah Bano, an old, indigent woman thrown out of her home and hearth by her husband who had taken recourse to the expedient, sharia sanctioned means of pronouncing talaq thrice, led to nationwide violent protests engineered by the ulema and backed by the All-India Muslim Personal Law Board.
The Congress government, headed by Rajiv Gandhi, instead of seizing upon the judgement to push ahead with a Uniform Civil Code, chose to pander to the ulema. The All-India Muslim Personal Law Board scored a huge victory when Rajiv Gandhi used his brute parliamentary majority to steamroll the Muslim Women's Bill in 1986. This strengthened the case for sharia more than the 1937 Act.
The All-India Muslim Personal Law Board has been quietly consolidating its position as the only arbiter of Muslim destiny in secular, republican India. Under the guise of bringing about 'reform' -- the All-India Muslim Personal Law Board believes that the official age of consent is bunkum and that girls should be herded into marriage the moment they attain puberty -- it has been surreptitiously working towards the setting up of 'sharia courts'.
The logic is simple: Secular courts do not have the authority to either interpret or apply sharia, which is based on the Quran and the Hadith. That right belongs to 'sharia courts' alone. As much was stated at the All-India Muslim Personal Law Board's conference in Bhopal when the members encouraged Muslims to take their differences to 'sharia courts' -- as distinct from going to the local ulema or alim as was the practice till now.
According to a report, 'sharia courts' set up by the All-India Muslim Personal Law Board are already functioning in Gujarat, Bihar, Uttar Pradesh, Assam and Orissa, albeit silently and without publicising their activities.
When 'Dar-ul Qaza,' the first Shariah court was set up in Ahmedabad, Gujarat, late last year, it was billed as an institution to 'end woes of Muslim litigants' in the state. 'It promises to help bring down backlog of court cases, save money, time and effort of parties. To top it all, ensure justice without causing heartburn to the losing party,' one spokesperson was quoted as saying.
'Dar-ul Qaza here (in Gujarat) will decide matters in the light of Islamic tenets on various issues of day-to-day living like marriage, divorce, inheritance, maintenance,' he added. In brief, Muslims should no longer seek justice in secular courts of law. According to Mufti Ahmed Devalvi of Jamia Uloomul Quran, Jambusar, 'Being believers of the faith, Muslims must accept the sharia tenets in resolving their disputes irrespective of the outcome of the disputes.'
Convener of the Dar-ul Qaza Committee of the All-India Muslim Personal Law Board, Maulana Ateeq Ahmed Bastvi, who teaches at Nadwatul Ulema, Lucknow, administered the 'oath of office' to Mufti Abdul Qayyum Jaipuri as 'Shahr Qazi' of Ahmedabad. 'A Muslim is a Muslim wherever he lives in the world and there are certain things about which he has no escaping. Following sharia is one of them,'he was quoted as saying.
So, we have a fast-unfolding situation where the All-India Muslim Personal Law Board is setting up sharia courts as a parallel system of justice. By the time authority in secular India wakes up to this reality, the government will be presented with a fait accompli-- accept it, or be damned as anti-Muslim. And let there be no doubt: Government will accept the sharia courts lest it upsets India's progressive, secular activists.