Author: Anuradha Dutt
Publication: The Pioneer
Date: October 12, 2012
URL: http://dailypioneer.com/columnists/item/52626-secular-india-vs-shari’ah.html

Sure, khap panchayats have no place in this country. But what about the various Shariat panchayats that flourish?

 Haryana, whose self-hype on television translates into the laudatory “Haryana No 1”, now has the dubious distinction of having perhaps the most rape cases within a month. It was 13 when Congress president Sonia Gandhi reached Sachhakhera village on Tuesday to sympathise with the family of a girl, who burnt herself after being raped by two neighbourhood youths in the presence of a policeman; and 15 reportedly when she left. Chief Minister Bhupinder Singh Hooda and his entourage were in attendance. Ms Gandhi was accompanied by Union Minister Kumari Selja, an important Dalit leader from the State. Whether this signalled imminent change of leadership in Haryana, Ms Gandhi left no doubt at least about the nation's laws having precedence over khap panchayat dictates in dispensing justice. The law was in the hands of the judiciary and none else, she stated.

 Before her visit, a khap panchayat in Rohtak, Mr Hooda's constituency, had recommended early marriages for boys and girls so that they could find a safe outlet for carnal desires. It was an attempt to obfuscate the fact of Dalit girls being targetted in a social milieu that pegs family honour to female honour, and often hounds young couples in inter-caste or inter-gotra relationships. Caste-related crimes anywhere are meant to intimidate the targetted people. But the rape cases may be gender crimes since all victims are not Dalit. State Congress chief Phool Chand Mulana ascribes the reports to “political conspiracy”.

 What is of significance is Ms Gandhi's stating that the nation's laws have primacy, and none else. The question is whether these laws also have precedence over Shari’ah courts/panchayats that draw on Muslim personal law while resolving disputes or ruling on crimes concerning Muslims. They do not. And that is the grim reality, even more disturbing because khap panchayats and Shari’ah courts originate from the same impulse for domination by self-appointed jurists. In January 2007, Additional Solicitor General Gopal Subramaniam informed a bench of Justices AR  Lakshmanan and Altamas Kabir that Muslims can take recourse to Shari’ah law for settling disputes, denying that these courts were in conflict with or parallel to the Indian judicial system. The matter being heard by the court related to Imrana's rape by her father-in-law, with the village panchayat directing her henceforth to consider the man her husband.

 The fatwa deflected attention from the unpardonable crime, with the Islamic seminary Darul Uloom declaring that Imrana could not live with her husband, and All India Muslim Personal Law Board endorsing the stand. Advocate Vishwa Lochan Madan then moved the Supreme Court on the plea that the Board be refrained from establishing a parallel Muslim judicial system —  Nizam-e-Qaza — in India. The Government reply cited the constitutional guarantee of freedom to every religious denomination to manage its own affairs. This included the right to establish ‘Dar-ul-Qaza / Nizam-e-Qaza (Shariat Panchayats)'. And so it has been post-independence, with men divorcing wives by simply pronouncing “talaq” three times; and even thwarting efforts to provide divorced wives maintenance, as directed by the Supreme Court in the Shah Bano case. The Congress needs to recall that the majority Government, headed by Prime Minister Rajv Gandhi, passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, to repeal the court order, granting maintenance by her former spouse to the elderly woman.

 Effort to bring Muslims within the ambit of secular jurisprudence was thus aborted. The genesis of the problem lay in the calculated failure by successive Congress Governments at the Centre to implement the constitutional directive for a uniform civil code. Advent of coalition politics, pegged to pandering to the interests of Muslims and select caste groups, ensures that such a code can be forgotten. Given their large number, an estimated 13 per cent of the population as per the last census in 2001, India thus veered towards Islamic theocracy, raising the suspicion whether some principal Constitution's framers were not closet Muslims. The Islamised Prime Minister Jawaharlal Nehru, a Kashmiri pandit, had confessed: “By education I am an Englishman, by views an internationalist, by culture a Muslim, and I am a Hindu only by accident of birth.”

 Many Kashmiris' possible roots in Semitic West Asia was debated, as it is even now, by travellers and writers from the time of the Mughals and, subsequently, British Raj. Several researches linked them to the lost tribes of Israel, Jews fleeing to India for asylum, and in Kashmir, veering between Muslim and Hindu influence and identity. The Congress, under the Nehru-Gandhi dynasty, kowtowed to Muslim concerns, whether guaranteeing them the right to follow Shari’ah or subsiding the annual Haj to Mecca. The latter, however, was un-Islamic since the Quran enjoined going on pilgrimage only if one could afford it. The Supreme Court on May 8 ordered that this subsidy be phased out by 2022.