Author: A Surya Prakash
Publication: The Pioneer
Date: November 20, 2005
What is it about Islam that makes it incompatible with democracy and the core ideas in a modern Constitution like the one that governs us in India? Despite the untiring efforts of millions of Indians to build democratic institutions and remove discrimination on the basis of caste, creed and gender, Muslims clerics and community leaders seem determined to undo the constitutional scheme.
Emboldened by the unwillingness or incapacity of politicians to contain them, leaders of this community have now begun targeting the courts. Signaling this new trend is the Mufti of Khargone district of Madhya Pradesh, who has issued a fatwa that a non-Muslim judge cannot give a ruling in a divorce case involving Muslims. Reports from Indore indicate that Arzmand Bano, wife of Anwar Khan, a resident of Khargone, was granted divorce by civil judge Nirmala Chavda.
Following the order of the court, Anwar Khan appealed to Mohammed Rafi Kasmi, Mufti of the Khargone District Dar-ul Uloom, and sought his intervention. The Mufti obliged by issuing a fatwa. He declared that under the shariat only the husband had the right to divorce his wife. He therefore 'nullified' the divorce granted by the civil judge.
The Mufti was arrested after his fatwa generated a storm of protest. This is not the first instance of a Muslim cleric displaying contempt for our judicial system and going by current trends, it is unlikely to be the last. Have you ever come across a Hindu Mathadipati, a Jain Muni, a Buddhist monk or a Christian priest talk in such a vein about our courts or our judicial system? Have you ever heard a Hindu or Christian say that he is not bound by the judgements delivered by Justices Hidayatullah, Chagla or Ahmadi? If we give Muslim clergy this prerogative, will our Constitution survive such onslaughts?
A couple of weeks ago, I was aghast to see the reactions of Muslim organisations to the judgement of the Allahabad High Court on the minority status of Aligarh Muslim University. Justice Arun Tandon of this High Court declared that this university was not a minority institution within the meaning of Article 30 of the Constitution. He said that the judgement of the Supreme Court in Azeez Basha versus Union of India 'still holds good'.
In that case, settled in 1967, a five-judge bench of the Supreme Court held that university was not an institution that was 'established' and 'administered' by the Muslim minority. Muslim leaders pressured the Indira Gandhi Government to amend the Aligarh Muslim University Act in order to undo the Supreme Court verdict. The Congress Government obliged.
Justice Tandon has now ruled that the amendments of 1981 notwithstanding, the law is as stated in the apex court's decision in the Azeez Basha case. Unhappy with the Allahabad High Court ruling, some Muslim organisations not only criticised the court but also attributed motives to the judge. Among organisations that crossed the line of decency were the All-India Muslim Forum and the Association of Indian Muslims of America. These responses betray disrespect for the Constitution and the courts. Now we have a Mufti saying that a non-Muslim judge cannot decide on matters of divorce if the litigants are Muslims.
The constitutional scheme that envisages democracy, a secular order and rule of law has been under attack from the Muslim clergy and community leaders for the last several decades. Since every political party eyes the minority vote, Muslim clerics have arm-twisted politicians and successfully forced them to undo court verdicts through legislation. They have also put political pressure on the bureaucracy and compelled it to take patently unjust decisions. The most well known instance of such intimidation pertained to Shah Bano. The moment the Supreme Court pronounced its verdict, the ulema mounted pressure on the Congress Government headed by Rajiv Gandhi to amend the law pertaining to maintenance so as to keep Muslim women outside its ambit.
The Government gave in to Muslim communalism and enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. Another such instance was the amendment of the Aligarh Muslim University Act in 1981 ostensibly to upturn a Supreme Court verdict. These are just two of many such situations in which the political leadership has buckled under Muslim pressure and taken regressive legislative measures.
The fatwa issued by the Mufti of Khargone reminds one of the reasoned arguments put forth by BR Ambedkar, the architect of our Constitution, on the futility of attempting Hindu-Muslim coexistence as citizens of a single nation. In Thoughts on Pakistan (1940), he said, "To the Muslims a Hindu is a Kaffir. A Kaffir is not worthy of respect. He is low born and without status. That is why a country which is ruled by a Kaffir is Dar-ul Harb to the Mussalman." Ambedkar clinches this argument by reproducing the comment of Maulana Mohamed Ali, who presided over the All-India Khilafat Conference in 1921, on Mahatma Gandhi.
The Maulana said, "However pure Mr Gandhi's character may be, he must appear to me from the point of view of religion inferior to any Mussalman, even though he be without character." Such comments, said Ambedkar, provided ample proof of the ill effects of concepts like Dar-ul Harb and Dar-ul Islam. Ambedkar's sense of Islam and the Muslim mind helps us understand the spurious logic that prompts persons like this Mufti and those who head Muslim organisations to display such contempt towards judges who happen to be Hindus. But we cannot condone this. This tendency to give a communal colour to court judgements must be nipped in the bud.
Further, how can we have two sets of laws in this country - one for Muslims and another for the rest? According to Muslim clerics, courts cannot decide on even divorce or maintenance matters of citizens who happen to be Muslims because they are governed by the shariat, following which is a matter of faith. But when it comes to issues pertaining to the Hindu faith, Hindus have to present scientific proof and subject themselves to decisions of courts. Take the case of Ram Janmabhoomi in Ayodhya. Hindus believe Ayodhya to be the birthplace of Lord Ram. This is a matter of faith. Yet, they must submit to excavations, archaeology, scientific investigations, rational thinking and finally orders of a court.
So, when it comes to the birthplace of the Hindu God, Hindus must predicate their faith on scientific opinion and the rational, judicial mind, but courts established under the Constitution are not to intervene even in routine divorce and maintenance cases of Muslims because it violates their faith. While the rest of India is obliged to acquire a modern temper, Muslims can wallow in their medieval ways. This is a travesty of the constitutional scheme. The Constitution guarantees rule of law and equality before law. Muslims cannot be more equal than others.
Having successfully intimidated the country's politicians, and through them manipulated the executive and the legislature, Muslim community leaders have begun targeting the courts. This is the final assault. Should the courts ever succumb to the pressure of Muslim communalists, the Constitution and India's unity and integrity will be in peril.
The Khargone Mufti has gone too far. Muslims demanded separate electorates in the last century, leading to the division of India. The All-India Muslim Personal Law Board has, in recent times, expressed itself in favour of parallel Shariat courts. Now a Muslim cleric is trying to divide the judiciary on communal lines. This is not a stray case. It is in line with the continued maladjustment of the Muslim community to democracy. India is not an Islamic state; it is a secular democracy and, Inshallah, it shall remain so.