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Establishing Sharia Courts Stirs Up Controversy

Establishing Sharia Courts Stirs Up Controversy

India pursuing a fake brand of secularism has spoiled the secular aspirations of a large number of Indians.

The decision of the All India Muslim Personal Law Board (AIMPLB) to establish Sharia courts in all districts across the country has stirred up a controversy and brought us back to the debate on the fundamentals of a secular state, which began in the Constituent Assembly over seven decades ago. It now appears that the concerns expressed by some eminent law-makers in that Assembly, including BR Ambedkar, over objections to a common civil code, have come to haunt us all over again.

Political developments in recent years and the politics of appeasement practised by several political parties, including the Congress, provide ample proof of the congenital maladies that the Nehruvian establishment injected into India’s polity at the time of the nation’s Independence.

The Constituent Assembly began its sittings on December 9, 1946. Eight months hence, India gained independence and the Muslims of India succeeded in dividing the country and creating a separate Islamic State — Pakistan. But, even two years after the vivisection of the country on the basis of religion, Muslim members of this Assembly, who represented Muslims who preferred to stay back in secular India, raised demands like separate electorate and successfully stalled the proposal to introduce a common civil code. The vehemence with which they protested against a constitutional provision to enable the drafting of a common civil code shocked many members of the Assembly, including Ambedkar.

Here are some excerpts of the debate on this issue in the Constituent Assembly on November 23, 1948. Now that the AIMPLB is planning to have a separate legal and judicial network across the country to deal with many matters pertaining to civil law, readers will realise the price the country is paying today for Jawaharlal Nehru’s pusillanimity at the time of Independence and the shadow that this has cast on the secular aspirations of a majority of Indians.

When the issue came up for discussion in the Constituent Assembly on November 23, 1948, Mohamad Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Baig Sahib Bahadur, Pocker Sahib Bahadur and Hussain Imam vehemently opposed the Article which said: “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” Mahboob Ali Baig Sahib Bahadur claimed that as far as Muslims were concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion. Other Muslim members echoed this sentiment. Mohamad Ismail Sahib wanted a proviso added to the Article that no group or community would be obliged to give up its own personal law. He claimed that a uniform civil code will generate disharmony whereas “if people are allowed to follow their own personal law, there will be no discontent or dissatisfaction”. Pocker Sahib Bahadur claimed that the Article was “a tyrannous provision which ought not to be tolerated”.

Mahboob Ali Baig Sahib Bahadur put forth a convoluted interpretation of secularism. He said that in a secular state, citizens belonging to different communities must have the freedom to observe their own life and their own personal laws. Pocker Sahib Bahadur claimed that it was the duty of the majority to secure the sacred rights of every minority.  Munshi challenged both of them: “Nowhere in advanced Muslim countries the personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of a civil code. Take for instance Turkey or Egypt. No minority is these countries is permitted to have such rights.” He said that majority among Muslims showed no such consideration to the Khojas and Cuthi Memons, who wanted to have their own personal laws. Therefore, he pooh-poohed their claim that the personal laws of minorities were always respected in other parts of the world. Alladi Krishnaswami Ayyar also challenged the contentions of the Muslim members. He asked whether these arguments would promote “the welding together a single nation, or is this country to be kept up always as a series of competing communities?” Further, when the British introduced one criminal law for the entire country, the Muslims had no objection. Nor did they object to a common law on contracts and such other laws. He felt that “the only community that is willing to adapt itself to changing times seems to be the majority community in the country”.  The point that is often reiterated by Hindus today.

Ambedkar said he was surprised to hear that Muslims had always followed their own personal laws because there was a uniform criminal code, a common transfer of property act, a Negotiable Instruments Act etc in existence. In other words, there is already a uniform civil code and the idea is to extend it to marriage and succession.   

The Muslim members said that many of the practices and injunctions came from the Koran and so, for 1350 years, it has been practiced by Muslims and recognised by authorities in all states. Ambedkar challenged this claim as well. He said, for example, the North-West Frontier Province followed Hindu Law in regard to succession and other matters until 1935. In the Malabar region, Marumakkathayam — a matriarchal law — applied not only to Hindus but to Muslims as well. He told the Muslim members who were objecting to a common civil code that there was no use making a categorical statement that “the Muslim Law has been an immutable law …from ancient times”. Therefore, if it was found necessary to evolve a single civil code applicable to all citizens irrespective of their religion in a new civil code, “I am certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

In order to put off the discussion on the common civil code, Naziruddin Ahmad claimed that the Constituent Assembly was ahead of its times. He said he had no doubt that a time would come when the civil code would be uniform.  This was wishful thinking indeed, as the recent decisions of the AIMPLB shows. In any case, this is one of Jawaharlal Nehru’s monstrous follies. His pursuit of a fake brand of secularism encouraged the Muslim minority to retain its separateness and thus impede national integration. Future generations of Indians will pay the price.

(The writer is Chairman, Prasar Bharati)

Writer: A Surya Prakash

Courtesy: The Pioneer

Establishing Sharia Courts Stirs Up Controversy

Establishing Sharia Courts Stirs Up Controversy

India pursuing a fake brand of secularism has spoiled the secular aspirations of a large number of Indians.

The decision of the All India Muslim Personal Law Board (AIMPLB) to establish Sharia courts in all districts across the country has stirred up a controversy and brought us back to the debate on the fundamentals of a secular state, which began in the Constituent Assembly over seven decades ago. It now appears that the concerns expressed by some eminent law-makers in that Assembly, including BR Ambedkar, over objections to a common civil code, have come to haunt us all over again.

Political developments in recent years and the politics of appeasement practised by several political parties, including the Congress, provide ample proof of the congenital maladies that the Nehruvian establishment injected into India’s polity at the time of the nation’s Independence.

The Constituent Assembly began its sittings on December 9, 1946. Eight months hence, India gained independence and the Muslims of India succeeded in dividing the country and creating a separate Islamic State — Pakistan. But, even two years after the vivisection of the country on the basis of religion, Muslim members of this Assembly, who represented Muslims who preferred to stay back in secular India, raised demands like separate electorate and successfully stalled the proposal to introduce a common civil code. The vehemence with which they protested against a constitutional provision to enable the drafting of a common civil code shocked many members of the Assembly, including Ambedkar.

Here are some excerpts of the debate on this issue in the Constituent Assembly on November 23, 1948. Now that the AIMPLB is planning to have a separate legal and judicial network across the country to deal with many matters pertaining to civil law, readers will realise the price the country is paying today for Jawaharlal Nehru’s pusillanimity at the time of Independence and the shadow that this has cast on the secular aspirations of a majority of Indians.

When the issue came up for discussion in the Constituent Assembly on November 23, 1948, Mohamad Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Baig Sahib Bahadur, Pocker Sahib Bahadur and Hussain Imam vehemently opposed the Article which said: “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” Mahboob Ali Baig Sahib Bahadur claimed that as far as Muslims were concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion. Other Muslim members echoed this sentiment. Mohamad Ismail Sahib wanted a proviso added to the Article that no group or community would be obliged to give up its own personal law. He claimed that a uniform civil code will generate disharmony whereas “if people are allowed to follow their own personal law, there will be no discontent or dissatisfaction”. Pocker Sahib Bahadur claimed that the Article was “a tyrannous provision which ought not to be tolerated”.

Mahboob Ali Baig Sahib Bahadur put forth a convoluted interpretation of secularism. He said that in a secular state, citizens belonging to different communities must have the freedom to observe their own life and their own personal laws. Pocker Sahib Bahadur claimed that it was the duty of the majority to secure the sacred rights of every minority.  Munshi challenged both of them: “Nowhere in advanced Muslim countries the personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of a civil code. Take for instance Turkey or Egypt. No minority is these countries is permitted to have such rights.” He said that majority among Muslims showed no such consideration to the Khojas and Cuthi Memons, who wanted to have their own personal laws. Therefore, he pooh-poohed their claim that the personal laws of minorities were always respected in other parts of the world. Alladi Krishnaswami Ayyar also challenged the contentions of the Muslim members. He asked whether these arguments would promote “the welding together a single nation, or is this country to be kept up always as a series of competing communities?” Further, when the British introduced one criminal law for the entire country, the Muslims had no objection. Nor did they object to a common law on contracts and such other laws. He felt that “the only community that is willing to adapt itself to changing times seems to be the majority community in the country”.  The point that is often reiterated by Hindus today.

Ambedkar said he was surprised to hear that Muslims had always followed their own personal laws because there was a uniform criminal code, a common transfer of property act, a Negotiable Instruments Act etc in existence. In other words, there is already a uniform civil code and the idea is to extend it to marriage and succession.   

The Muslim members said that many of the practices and injunctions came from the Koran and so, for 1350 years, it has been practiced by Muslims and recognised by authorities in all states. Ambedkar challenged this claim as well. He said, for example, the North-West Frontier Province followed Hindu Law in regard to succession and other matters until 1935. In the Malabar region, Marumakkathayam — a matriarchal law — applied not only to Hindus but to Muslims as well. He told the Muslim members who were objecting to a common civil code that there was no use making a categorical statement that “the Muslim Law has been an immutable law …from ancient times”. Therefore, if it was found necessary to evolve a single civil code applicable to all citizens irrespective of their religion in a new civil code, “I am certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

In order to put off the discussion on the common civil code, Naziruddin Ahmad claimed that the Constituent Assembly was ahead of its times. He said he had no doubt that a time would come when the civil code would be uniform.  This was wishful thinking indeed, as the recent decisions of the AIMPLB shows. In any case, this is one of Jawaharlal Nehru’s monstrous follies. His pursuit of a fake brand of secularism encouraged the Muslim minority to retain its separateness and thus impede national integration. Future generations of Indians will pay the price.

(The writer is Chairman, Prasar Bharati)

Writer: A Surya Prakash

Courtesy: The Pioneer

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