Today’s Topic of Discussion: KYA KAREGA KAZI?
KYA KAREGA KAZI?
What the Judge will do?
The Muslim Personal Law Board has recently taken a new initiative for ‘social reform’ that involves the setting up of ‘Sharia courts’ (Islamic law courts) as ‘the first option for litigants’ and the ‘rolling back’ by Supreme Court of its judgments which are not in line with the Board’s views on Sharia (Islamic Law) and its tenets.
It defies reason how the question of social reform can be linked to either the working of the judicial courts or the rolling back of the Supreme Court’s decisions. The issues relating to social reform are always addressed to the community whereas the resolution adopted by the Muslim Personal Law Board (MPLB) has addressed all the issues to the authorities and has also questioned the Supreme Court’s judicial competence to interpret Muslim family laws. The laws undoubtedly have an Islamic origin. But they are on the statute books only because they have been enacted by Parliament.
A careful reading of the MPLB resolution makes it clear that what it has basically set out is an agenda of ‘judicial reforms’ of their choice which, if agreed to, will establish the MPLB as the sole and final judicial authority in matters of Muslim family laws. This will not only deny to Muslim citizens of India, both men and women, the right of judicial remedy in cases of being aggrieved but also deny to the Indian courts the right to interpret a group of laws that deal with marriage, divorce. inheritance, etc. and have been enacted by Parliament.
Without going into the question of the merits of this, to many people it may appear a totally novel assertion. But it is not so. The Indian Muslim clergy, who constitute the main body of Personal Law Board, have been agitating on this issue right from 1864 when the office of the kazi was abolished.
In the following years the clergy kept demanding that the office be revived with judicial and non-judicial powers. The clergy consistently held the view that cases regulated by Islamic law can and should be tried by kazis alone and not by non-Muslim judges. The government, however, turned down all such demands.
But in 1879. the government agreed to enact a law to authorise provincial governments to recognise kazis performing private, non-judicial functions – that is, duties/ceremonies prescribed by Muslim Law. The law as passed in 1880 made it clear that kazis will not have any exclusive jurisdiction even in the exercise of their non-judicial functions.
The clergy were angry and in the following years, they started setting up at various places a Darul Ifta (Institute of Juristic Verdicts) headed by muftis as parallel courts of justice. Since the verdicts of muftis lacked both official sanction and binding force, a number of aggrieved Muslims chose to take their cases to the courts. The clergy resented this.
It is important here to mention the Dissolution of Muslim Marriages Act 1939. providing for judicial dissolution of marriage, particularly at the instance of an aggrieved Muslim woman. Since the law, as it prevailed then, made it almost impossible for a Muslim woman to secure divorce, many women in the early 20th century reportedly renounced their faith in order to be granted divorce on the grounds of apostasy. This led the clergy to start looking for alternatives.
After prolonged deliberations among members of the clergy, M.A. Kazmi introduced a Bill in the Central Legislature in 1936, detailing the grounds on which an aggrieved woman could ask for a judicial divorce It tried to enact a stipulation that only a Muslim judge could dissolve the marriage of a Muslim woman.
It is important to remember that the Dissolution of Muslim Marriage Bill was a reformative measure but the government categorically warned the sponsors of the Bill that if the provision about Muslim judges was insisted upon then the government would not proceed with the Bill. Records show that the governments stand was supported by an overwhelming number of members, Muslim and Hindu. This paved the way for the Bill to become law without the attached condition.
The development greatly displeased the clergy The Jamiatul Ulema, the main cleric institution that drafted the Bill, termed the law in its modified form ‘more harmful than useful’. The Jamiatul Ulema made a fresh bid in 1940 and proposed new amendments, only to be turned down by the government. In 1945. M.A. Kazmi moved a new Bill that avoided mention of kazı but provided for establishment of Muslim panchayats having petty judicial powers like village panchayats.
This proposal too was rejected by the government. The new resolution of MPLB is the latest attempt to usurp judicial powers for the clergy and confer official authority on clerics who keep issuing fatwas but do not have either the official sanction or authority to enforce their decrees.
It is interesting to note that Maulana Azad did not agree with this line of reasoning. According to Malfoozate Azad, in 1952 one Abdul Aziz of West Bengal wrote to Maulana Azad about a Muslim girl whose husband had migrated to Pakistan and was willing to neither divorce her nor take her to live with him. The girl obtained a court order for dissolution of marriage based on new law. The clergy did not accept the court order and declared that, according to Sharia, she was not divorced. Maulana Azad did not agree with them and sent a letter to her parents that the court order was valid and not against Sharia.
It will not be out of place to recall that the great Islamic jurist Imam Abu Hanifa, after whom the Hanafi school of jurisprudence is named and to whom most members of the MPLB protest their allegiance, was stoutly opposed to Islamic scholars-jurists accepting any position, honour or recognition under or from the government.
The MPLB must note the difference between attempts to vest itself with judicial authority and official recognition and the cause of social reform. Social reform is effected through sustained, dedicated work and not by indulging in bargaining with the powers-that-be to secure judicial or other official positions or patronage.
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