The American Journal of Islamic Social Science Vol. 5 , No. 1, 1988 135 Research Notes Islamization of “Muhammadan Law” in India Syed Khalid Rashid I. Introductory Remarks One of the bounties bestowed on Muslims by Allah (SWT) is the Sharihh: the Divine guidance and code of conduct, necessary to achieve success in this world and the world hereafter. For the colonists who subjugated Muslim lands it appeared necessary therefore to first deprive Muslims of their source of sustenance and symbol of identity. The first target of their attack was the Shuriizh; every aspect of which was ridiculed, belittled or truncated. It is difficult to improve upon Isma’il Riiji al FGriiqi‘s graphic description of this onslaught. He who wrote: By the colonialists directly, or by their native stooges, everything Islamic fell under attack. The integrity of the Qur’Gnic text, the genuineness of the Prophet (SAAS), the veracity of his Sunnah, the perfection of the Sharibh the glories of Muslim achievements in culture and civilization - none of them was spared. The purpose was to inject doubt in the Muslim’s confidence in himself . . . to subvert his Islamic personality . . . lacking the spiritual stamina necessary for resistance . . . the Muslim was turned into something neither Islamic nor Western, a cultural monstrosity of modem times? ~~ ~~ Dr. Syed Khalid Rashid is Dean, Faculty of Law and Head, Dept. of Islamic Law, University of Sokoto, Sokoto, Nigeria. The outline of this paper appeared in Radiance, (Delhi), M~dprram 1406 AH/October, 1985 AC. This paper is dedicated to the memory of late Professor Ismri’ll Riji a1 Finiqi, Palestinian- born American Professor of Islamics who lived and died for the cause of Islamization of knowledge. He visited Sokoto in 1403 AHA983 AC. ’Al Firiiqi, (ed.), Ism23 Riji, Islamization of Knowledge: Geneml Principles and Wrk Plan (Int. Inst. of Islamic Thought, Washington, 1402 AH11982 AC), pp. 4.5. 136 The American Journal of Islamic Social Science Vol. 5, No. 1, 1988 In India, the British colonialists deprived the Muslims of their sense of identity by substituting a good part of the Sharitzh with English law and systematically mutiliated the rest of it into a hybrid legal system they started calling with the meaningless name of “Muhammadan Law“. With a view to analyze the colonization of the Sharitzh in India during the last century and to determine’the extent of damage it suffered in the past and continues to endure to this day, this paper makes the following submissions: 3 ) 4 ) That the law to govern Muslims anywhere in the world including India should be the Sharibh; That the “Muhammadan law” (or Muslim Personal Law) which is applicable to Muslims in India materially differs from the Sharibh; That the ill-effects of continued application of this law are serious and need certain corrective measures; and That a complete re-appraisal of the Islamic legal education in the century is necessary to ensure proper understanding and judicial implementation of the Sharislh in India. 11. Why the Shari‘ah should Govern Muslims? It is incumbent upon every Muslim to follow the Sharitzh. Its beauty and superiority over other legal systems also make it desirable to be followed by every Muslim in hidher own self interest. There is thus both religious and temporal benefits for Muslims governed by the Shariizh. In its literal meaning, the Sharitzh is “the path leading to a watering place,” but technically it means the path ordained by Allah (SWT) to achieve success in this world and the hereafter. Allah (SWT) says in the Qur’in: We have set thee on a way by which the purpose (of faith) may be fulfilled (Sharibrin min al Arnr): So follow thou this (way), and follow not the likes and dislikes of those who do not know (the truth). Siirah a1 Jiithiyah (45):182* To thee we sent the Scripture in truth . . . to each among you have we prescribed a Law (Shiriztan=rules of practical conduct) and an Openway (Minhiijan=things in the higher regions of the spirit, which is common to mankind, though laws and rules may ‘Translation from Asad, Muhammad, The Message ofrhe Q u r h (Gibralter, 1400 AHA980 AC), p. 767. Syed Rashid Islamization of “Muhammadan Law” in India 137 take different forms among different peoples) . . . And this (He Commands): Judge thou between them by what Allah hath revealed, and follow not their vain desires, but beware of them lest they beguile thee from any of that (teaching) . . . . Siirah a1 Mii’idah (5 ) : 5 1 ,523 Based on these Divine commandments and Prophetic guidance‘ of Muhammad (SAAS) the Sharibh prescribes rules aimed at following the Way, ordained by Allah (SWT), in order to conduct the life to achieve the Divine Will. It is natural therefore to find the Sharihh regulates every aspect of a Muslim’s life, and guides him down the ’Straight Path’ (a1 Sirzit al- Mmtaqim). Sharitrh stands unchanged, as asserted in the Qur’h itself: There is no altering of the Way of Allah (SWT). (Siimh a1 Riim (30):29.) The successful ones are only those who follow the “Straight Path”. The Qur’iin is full of examples taken from the history of nations whose peoples perished or suffered because of their deviation from the “Straight Path”. Such is the eternal law of life. It does not alter for individual^.^ This was our way with the Apostles we have already sent before thee, and in this our way, thou shalt find no change. Siirah a1 Zsrzi’ (17) : 29. The Shariizh perceives Allah (SWT) as the Sovereign of Universe, Sustainer, Cherisher, Nourisher, Regulator and Perfector, the Creator and The Ruler of universe. Since Allah (SWT) is Perfect, hence, His Shariizh should also be perfect, universal, and perpetual. As such, the Sharihh combines in itself not only what law “is” but also what law “ought to be,” it concerns itself with this world as well as hereafter, and presents a perfect concept of justice which is lacking in the modem man-made legal systems. According to Friedman, the concept of justice keeps changing, from one political ’Translation from Ali, Abdullah Yusuf, Ihe Holy Q u r h (Islamic Foundation, 1395 AHA975 AC), pp. 258, 259. Every other citation unless otherwise indicated, is from this translation. ‘Qur’in testifies to the Divinely inspired nature of the Prophet’s sayings, doings and tacit approvals at several places, e.g. “Nor does he (the Prophet) say of (his own) desire. It is no less than inspiration sent down to him. He was taught by one Mighty in Power, endowed with wisdom . . . ” (Qur’in Simh a1 Najm (53):2-6) “And We have sent down unto thee (the Prophet) the Message that thou mayest explain clearly to me what is sent €or them, and that they may give thought.” (Qur’an, Siimh a1 Nahl(16): 44.) “. . . We have sent among you an Apostle of your own, rehearsing to you Our &t, and Sanctifying you, and instructing you in Scripture and wisdom, and in new knowledge.” (Qur’in, Simh a1 Ruqamh (2):lSl. 5Azad, Abdul Kalam Zkhe TadwtGn a1 Qur‘in Vol. i, Lahore, n.d. first published in India in 1382 AH/1%2 AC), p. 88. 138 The American Journal of Islamic Social Science Vol. 5 , No. 1, 1988 philosophy to another. “What emerges from all these varying attempts”, admits Friedman,”is the failure to establish (an) absolute standard of justice except on a religious basis. The philosophies which make knowledge of justice a matter of intuition are merely escapist. Their ultimate trust is not in everlasting principles of justice, but in the wisdom, goodness or the sheer power of men.”6 Justice is essential in the maintaining a just balance between various competing interests. This balance is so difficult and delicate that only Allah (SWT) is capable of dispensing it through Divine commandments: “Is it Allah who has sent down the Book in right form with everything therein justly balanced Surah a1 Shzirii, (42):17. Purification of the soul (Ezkiyah a1 nafi) is the primary aim of the Sharibh. It regulates the desires, because these often cause man to deviate from the right path. In other words, its (purification) creates a sense of righteousness (taqwii) in the heart of the Muslim. Islam’s equipoise in life is reflected in its law (Sharibh). Consequently, antipathies which hamper law and order in the society are reconciled and harmonized. This is achieved by assigning a Divine value to every human action, so that everyone can himself judge the worth of his action, its beauty (husn) or its ugliness (qubh), through the doctrine of servitude (’ilm a1 Yaqin). The commandments of Allah (SWT) (a1 ahkiim) are divided into five categories known as a1 ahkiim a1 khamsah fard, mandiib, makriih, jii’iz/Mubah and briim). Based on these, every Muslim is placed under an obligation to respect, acknowledge and accede to the rights against him i.e. by 1) Allah (SWT), (2) by his ownself, (3) by other persons and (4) other living creatures. The science which derives the Sharibh values from the Shuritrh sources (i.e. Qur’in, Sunnah, Ijmii‘ and Qiyiis) is called the science of jiqh (usiil a1 jiqh). Fiqh is divisible into Usiil (roots) and firii‘ (branches). Whereas the edifice of the Shartah rests on the commandments of Allah (SWT) and the Sunnah of the Prophet (SAAS) that is, ’ilm (Knowledge), and thefiqh is a product of reasonings and deductions based upon ‘ilm. Injiqh, an action is legal or illegal, permissible or prohibited. The Shuribh has its own five- fold classifications of human actions. The grand edifice of the Shuri2z.h came to be established fourteen centuries ago, covering every facet of a Muslim’s life. Fortunately for us, the Shuribh has its own rules of interpretation as is the case with any other developed legal system. A very brief exposition of these rules covering 38 pages can (Friedmann, Legal Z’heory, 5th ed. (London, 1%7), p. 347. Syed Rashid Islamization of ‘Muhammadan Law” in India 139 be found in the principles of Muhammadan by Abdur Rahim.’ It should be said in fairness that the Privy Council and other British courts, as well as the Indian Supreme Court and other High Courts, tried to follow, to the best of their ability, the pristine pure principles of the Shuriszh. Sadly, however, their best efforts were not good enough and in their zeal to follow taqtzd they unconsciously created conditions for the fossilition of the Shuriszh. From the foregoing discussion it becomes clear that to follow the Shuriszh is not only incumbent upon Muslims but also very beneficial, even for temporal considerations. The Sharibh possesses “certainty” and does not leave men to grope for their sovereign on the crutches of fictions,like the “Social Contract” of Locke-and the “State of Nature” and Hobbes. By declaring that “Justice” is what Allah (SWT) has prescribed, the Shariszh gives much needed peace of mind to those who find grave injustice in the man-made justice system. Apart from justice, the Sharislh stands for impartiality, simplicity, straightforwardness, speed and inexpensiveness; qualities that are lacking in other legal systems. Notwithstanding the love of Muslims for the Shuribh the sacrosanct judicial pronouncements and governmental assurances to uphold Shuridh, certain historical developments took place that to a great extent, superseded the Shariszh and ultimately created its caricature under the name of “Anglo Muhammadan Law”, which is even now being followed in India even though the early oppressors left the country long ago and every Indian is now master of his own destiny. 111. The Emergence of “ Muhammadan Law” in India Developments in British India, particularly between 1169 and 1214 AH/1765-1857 AC, adversely affected Muslim interests, includmg the sharibh. ODDortunities for employment were esDecially restricted: the awaiif were usurped or deprived of funds; their language was discarded and with it their wealth of knowledge. Their rent-free &-i-mukh holdings were also abolished and a new system of law and social norms was imposed on them.8 Initially, the British colonial power tolerated the application of the ShuSfih as a matter of policy, which was dictated by three main considerations: First, they did not desire an abrupt break with the past; second, their chief object was to have security in social conditions so as to facilitate trade, and third, U .of rwll 7Abdul Rahim, Ihe PrincQdes of Muhammadan Jurisprudence (Madras, 1330 AH/1911 ‘For details, see, Rashid, S. K., “Impact of Colonialism on the Sbr2Slh in India”, Islamic AC) pp- 77-115. C.L.Q., b l . HI, NO. 3 (1403 AHA983 AC), pp. 161-176. 140 The American Journal of Islamic Social Science Vol. 5, No. 1, 1988 they had no desire to interfere with the religious susceptibilities of their ~ubjects.~ These policies were reflected in the charter of George 11, granted in 1167 AH11753 AC; the Judicial plan of 1186 AH11772 AC; the Regulation of 1195 AC/1780 AC; the Act of settlement, 1196 AHA781 AC; and the Regulation XII of 1208 AHn793 AC. The British slowly abandoned this policy with the gradual consolidation of their power in India. The erosion of the ShaSuh started with the Bengal Regulation VII of 1248 AH/l832 AC. The third Law Commission was constituted in 1278 AH/l861 AC to frame "a body of substantive law, in preparing which the law of England should be used as a basis, but which once enacted should itself be the law of India on the subject it embraced."'O As many as six enactments owe their origin to this Commission: The Indian Succession Act; the Indian Contract Act; the Negotiable Instruments Act; the Indian Evidence Adt; the Transfer of Properly Act, and; the Criminal Procedure Act. All these enactments generally superseded the principles of the ShariM in their respective fields. On the heel of these enactments came the Kazi Act in 1281 AHA864 AC, abolishing the office of Q&fi, the main functionary position in the administration of justice under Shariizh. When Muslims tried to elect Q&fis of their own, they were prevented from so doing by the British Courts?' The administration of the Shariizh, or rather what was left of it, was placed in the hands of English judges who had, at best, very scanty knowledge of the subject. According to Rankin, the judicial decisions of this period show contravention of the principles of the Shuriizh?4 The development of the Shuritzh in Algeria under French rule and in Nigeria under the British rule bears close resemblance to its development in British India. It is, however, noteworthy that in Algeria and Nigeria, even after the colonial domination, Q&iis continued to administer the Shariizh. In British India, however, neither the learned advocacy by Maulana Ashraf 'Ali Thanavi in his monograph AZ HiZat aZ Najizah or the protest by Islamic organizations like Jumlyah a1 'UZamii'i Hind, could bring the colonial power to accept the validity of the argument that a decree of divorce passed by a non-Muslim judge would be absolutely under the Shariizh. The demand to establish Q&fi Courts and to entrust matrimonial disputes to them was rejected outright!S gFyzee, A.A.A., Outlines of Muhammadan Law, 3rd ed. (Oxford, 1384 AH11964 AC), 'ORankin, Background to Indian Law (1330 AH11911 AC), p. 45 Y3ee for example, Muhammad Abid3akar K Mir Ghulam Husain, original suit no. 453 '*Rankin, Supra n. 11 at 113. 13See, M h d , Tahir, Muslim Personal Law. (Vikas, 1397 AHn977 AC), pp. 36-37, and; pp. 53-54. of 1286 AH/1869 AC decided by the Madras High Court in 1287 AH/1810 AC Mian, Muhammad, Jamihh a1 Uh-' Kya Hay, (Delhi, 1366 AH4946 AC) (Urdu). E Syed Rashid Islamization of “Muhammadan Law” in India 141 Commenting on the slow but sure abrogation or abridgement of the Shuribh in British India, Joseph Schacht once remarked:14 According to strict theory the whole of Islamic Law (Sharibh), including the rest of Civil Law, penal law and law of evidence, ought to be regarded as sanctioned by religion but no significant voice of dissent was raised when Islamic Law in these fields was superseded by codes of British inspiration in the course of nineteenth century. . . . it showed that the idea of a secular law had for the first time been accepted by the leaders of an important community of Muslims. ,’I This observation of Schacht is merely a conjecture, unsupported by empirical evidence and opposed to commonsense. Said Shah Muhammad Ahmad Aj meri, President of Jum’iyuh a1 Uhmii’i Hind, in his Presidential address of 1349/193015 British policies were not based on the consent of the people, these rather were imposed on them by force. During the British peribd, Indian Muslims did not have the status of citizen, they were colonial subjects and had no constitutional rights or any other means to protect their religious laws. However, they strongly resented such interference in their religion and came to believe that their greatest enemy was Great Britain which, having India and her vast resources under her ’tyrannical‘ occupation, was the main cause of the degeneration in their religious life. The replacement of Qi$is by English’ judges produced very unhealthy effects in the Shuritzh. Here the words of Schacht deserve to be extensively quoted. It is the assessment of a non-Indian, non-Muslim Professor of Islamic law at Oxford. It gives the background in which “Muhammadan law” emerged and in what ways it differed from the Shuritzh: b The whole (of British Indian) judiciary was trained in English law and English legal concepts, such as the doctrine of precedent, and general principles of English Common law and equity inevitably infiltrated more and more into Islamic law as applied .in India. “Schact, Joseph, An Introduction to Islamic Law (Oxford, 1964), pp. 94-95. ‘Tited in Mushir-ul-Haq, Islam in Secular India (Simla, 1332 AHn!??’.? AC), p. 54. 142 The American Journal of Islamic Social Science Vol. 5 , No. 1, 1988 Last but not least, the jurisdiction of the Priyy Council as a final court of appeal could not fail to influence, much against its intentions, the law itself. In this manner, more than by positive legal changes which were few, Islamic law in British India, which later became Pakistan and the Republic of India, has developed into an independent legal system, substantially different from the strict Islamic law of the Shuriizh, and properly called Anglo-Muhammadan jurisprudence, the aim of which, in contrast with the formative period of Islamic law, is not to evaluate a given body of legal raw material from the Islamic angle, but to apply, inspired by modem English jurisprudence, autonomous jurisdical principles of Anglo- Muhammadan law. This law, and the jurisprudence based on it, is a unique and a most successful and viable result of the symbiosis of Islamic and of English legal thought in British India. Nearly all of the many problems faced by the Sharitzh in India today owe their origin to the above-mentioned travesty of the Shuriizh and its fossilization into “Muhammadan law”. It seems appropriate to briefly examine the adverse consequence of this historical development. IV. The Ill-effects of the Conversion of the Shari‘ah into “Muhammadan Law” Notwithstanding the dynamism, humanism and pragmatism of the Shuribh, it came to be stigmatized as archaic, static and barbaric, thanks to its conversion into “Muhammadan law”. To list only a few, the following could be cited as the major setbacks suffered by the Shuritzh under the impact of its “Anglo-Muhammadankation:” 4) 5 ) Adoption of the theory of sfure decisis, unknown to the Shuribh, made it a prisoner of tuqtd and robbed it of its dynamism; Application of the principles of English law to the Shuribh anglocized it to the extent of being a hybrid legal system; Non-Muslim judges started decidmg the Shuriizh cases against clear Islamic legal injunctions; Judicial misinterpretation of the sharihh started and gradually assumed disturbing dimensions; and Islamic legal education suffered immensely and has become completely out of tune of the Shan’t,. Syed Rashid Islamization of “Muhammadan Law” in Indii 143 A) Theory of ’stare decisis’ and Sharitzh: The Common law principle of stare decisis, whereby lower courts are required to essentially follow the verdict of superior courts in parallel situations is something unknown to the Shuridh. However, under “Muhammadan law” this became the unquestioned principle of the administration of justice and a means of perpetrating even wrongly decided cases and a convenient means of indulging into judicial adverturism at the highest level with the assuring guarantee of blind following. The influence of British common law and equity has been strongest in areas where the courts were staffed by British or British-trained judges, as in the case of India. The British did not allow the continuation of Qc~& courts, consequently the courts of general jurisdiction applied what was left of Islamic law after its dismemberment through enactment of various extraneous statutes. British courts in India placed absolute reliance upon some Islamic legal texts used authoritatively during the past and rejected any deductions made by contemporary jurists of new rules of law from the ancient texts. This tendency was due to the combined influence of taqlii and the common law doctrine of stare decisis. The British judges apparently were inclined to equate taqlid more or less with stare decisis. Many of the decisions or the Privy Council could be cited in support of this contention. In &ker Ali Khun’s Case, l6 for example, it refused to agree with certain sound inferences drawn by Mahmood, J. in Agha Ali Khan’s Case)’ and held: . . . the danger was pointed out of relying upon ancient texts of the “Mahornedan law”, and even the precepts of the Prophet himself, of taking them literally, and deducing from them new rules of law, especially when such proposed rules do not conduce to substantial justice. That danger is equally great whether reliance be placed upon fresh texts newly brought to light, or upon fresh old and undisputed texts. Their Lordships think it would be extremely dangerous to accept as a general rule that new rules of law are to be introduced because they seem to lawyers of the present day to follow logically from ancient texts however authoritative, when the ancient doctors of the law have not themselves drawn those conclusions. The above judicial attitude was maintained throughout the British period and continues even to this day in secular India. The Sharibh thus ceased Waker Ali Khan i! Anjuman Am (1321/1903)30 LA. 94 ”Agha Ali Khan i! Altaf Hasan Khan, I.L.R. 14 All, 129. 144 The American Journal of Islamic Social Science Vol. 5, No. 1, 1988 to be a growing organism responsive to progressive forces and changing needs. Conservatism and rigidity became the‘hall-marks of “Muhammadan law.” This law is peculiar in itself and cannot readily be used as a guide to the rules of Islamic law as applied in countries which have been outside this system, such as, Saudi Arabia, Egypt, Syria, Iran, Nigeria, etc. The approach of the British courts in India and of the Privy Council has been criticized in Pakistan by the Commission1* appointed in 1376 AH/1956 AC. The recommendations of the Commission found favor with the judiciary as is evident from the judgement in a well known caseI9 in which the following significant principles were laid down:‘O . . . the courts must be given the right to interpret for themselves the Qur’Sn and the Sunnah; and they may also differ from the views of the earlier juris-consults of Muslim Law on grounds of istihsan (equity) or istijlah (public good) in matters not governed by a Qur’lnic or Traditional text or zjmii’ or a binding qiyiis. At the Sam; time it must be reiterated that the views of the earlier jurists and Zmiims are entitled to the utmost respect and cannot be lightly disturbed, but the right to differ from them must not be denied to the present-day courts functioning in Pakistan, as such a denial will not only be a negation of the true spirit of Islam, but also of the constitutional and legal obligation resting on all courts to interpret the law they are called upon to administer and apply in cases coming before them. In India, however, it is not possible, for the time being, to adopt such a course of action without first ensuring far reaching reforms in the machinery administering Islamic law and the availability of Muslim judges well qualified in the Sharibh. As a first step, however, towards this goal, it has to be recognized in princile that the present judicial attitude towards the Sharibh is faulty and needs modification to bring it in tune with the Islamic law. No one should, in fairness, accuse the Sharibh of being static and 9 unprogressive. Indeed it is the judicial attitude towards the Sharihh that can be rightfully so accused and that has produced this unhealthy effect. ‘OThe Commission on Marriage and family Laws in its Report published in the Official 1gKhurshid Tan K Fazal Dad (1385 AH/1965 AC) PLR (West Pakistan) I, 312. V d at 399, cited in Liebesny, Herbert J . , The Law of the Near & Middle East: Readings, Gazette of Pakistan, 20 June, 1376 AH/1956 AC, 1197 at p. 1203. Cases, and Materials (Albany, 1975). I Syed Rashid Islamization of "Muhammadan Law" in India 145 B) Anglicization of the Shari'ah: In the early thirteenth century AH (nineteenth century AC) a libeml reform movement was strong in England, and Jermy Bentham, one of the greatest English law reformers, advocated codification of the law. Bentham himself was interested in applying his ideas to the Indian legal system. He never had an opportunity, however, to initiate law reform in India but his ideas were influential in starting and carrying through the prepadtion of codes. When the Charter Act of 1249 AH/1833 AC, which established one legislature for the whole of British India, was debated in the Parliament, Thomas Babington Macaulay, a British lawyer and politician, stressed the need for codification in India and said:" This seems to me . . . to be precisely that point of time at which the advantage of a complete written code of laws may most easily be conferred on India . . . It is a work which especially belongs to a government like that of India, to an enlightened and paternal despotism. Macaulay became the chairman of the first Indian Law Commission and became instrumental in starting the process of statutory replacement of various aspects of Sharibh through codes based on English law. In quick succession came the Indian Penal Code, the Indian Code of Civil Procedure, the Indian Code of Criminal Procedure, etc. The provisions of the Regulations of 1131 AH4718 AC for the judges to apply justice, equity and good conscience, were copied from Regulation to Regulation, and from Regulation to Statute, and this residual source of law is now firmly entrenched in India." Privy Council's dictum in Wughela Y Sheikh 1304 AHA887 AC,*3 is often cited in support of the contention that in India, English law will first be consulted wherever the context so demands. In Asia Bun0 Y Muhammad Zbmhimz' it was held that a choice most consistent with justice, equity and good conscience could be made between the conflicting opinions in Islamic law. On the basis of these principles and statutes a very large body of case- law developed. These developments gave a new color to the Shariizh: it was the Sharihh (appropriately called Anglo-Muhamqadan Law) as seen by English ZkMmuly, T.B. Miscellanies (Boston, 1901), cited in Liebesny, loc. cit. supm at 120 Werrett, D.M., "Justice, Equity and Good Conscience", pp. 139-140 (Reprinted by rs14 LA. 89 at 96. 24(1925) 47 All. 823 permission d George Allen and Unwin, London, 1963). 146 The American Journal of Islamic Social Science Vol. 5, No. 1 , 1988 judges and interpreted by them with the help of English law, without always fully grasping it and thereby always aligning it with English principles of equitable justice. As such, “Muhammadan law” is at best be calIed a specific growth or a hybrid system of law, which in the words of Fyzee has a bias towards common law doctrines, ”which in those times seemed to the British-’ trained judges to be more in accord with justice than the letter of the Sharia.”z5 C) Non-Muslim Judges sitting in Judgement over Shari‘ah Matters. All the schools of Islamic jurisprudence are unanimous that only a Muslim, possessing specific qualifications could be a Qii& or judge to decide cases under the Sharidhz6 Emphasis is placed on competence and knowledge but above all on Zmiin (faith). The Qii& should believe in whatever he is administering, and should himself be equally affected by the outcome of the dispute before him. He should be a Muslim in name alone but a practicing one, in tune with the social aspirations of Muslims and the spirit of Islam. In 1186 AHA772 AC, English judges replaced Qii&s in British India; Mufris continued to “advise” them but not for long. In 1281 AHA864 AC, the office of Qii& as judicial officer was abolished by an enactment. All this was done in total disregard of the Sharihh provisions and Muslim sentiments. The persistent demand of Muslims for the restoration of the office of Qii& did not move the British government, except to allow the appointment of QWs under the Kazi Act, 1298 AH/1880 AC. They possessed no judicial powers and were good for nothing. This Act still exists but is one of the least known of legislation in the country. Muslims did not and do not want an “ornamental Qii@‘, but a real one. There is a view that “scholarship of any personal law is not the exclusive preserve of only those who are themselves subject to that law. It is a matter of one’s personal study”.z7 “Scholarship”, however, should not be confused with “legal competence” under the Sharibh to sit in Judgement as Qii&. One is tempted here to quote Krishna Iyer, J. in Shaulumeedu’s Case:48 25F‘yzee, A.A.A., Cases in the Muhammafan Law of India and Pakistan (Oxford, 1385 AH/l%5 AC), p.xxiii (Introduction). W n l y a sampling of authorities are given here. See, for example, He- (tr. by Hamilton), p. 334; FatiiwzS Alamgiri, Part 29, p. 60 (Urdu tr. Deoband, n.d.); Bahr ul-Raiq, Vol. VI, pp. 257-258; A1 Dardir, A1 Sharh a1 Saghir Vol. iv, pp. 187-188; Minhij et-Talebin of Nawawi, tr. by Howard, p. 500, Abul Qabin Hilli, SharaF ul-Islam, Vol. ii, p. 375 (urdu tr. Lahore, 1979); Ghazi, Mahmud Ahmad, &la ul-Q&i (Islamabad, 1403 AH11983 AC) (Urdb). “Nagpal, R.C., -Religion ofa Judge and krsonal Laws”, 0974) 16 J.9.L.9, 123 %hahulumeedu t! Subaidu Bern’ (1970) K.L.T.4 Syed Rashid Islamization of “Muhammadan Law” in India 147 “The soul of a culture-law is largely the formalized and enforceable expression of a community’s cultural norms cannot be fully understood by alien minds”. The fact that this remark was made with reference to Privy Councils “distortions” of the Sharilzh testifies to the validity of the point under discussion. The colonial subjugation of India made it &r ul k r b in which it was expected that Muslim institutions would be discarded and discredited. When their demand for the restoration of the institution of Qii& was not accepted, Muslims turned to the Ulamii: referring, to them nearly all of their socio- legal problems for an out-of the-court abjudication. In 1286 AHA869 AC, a Diir a1 Zftii’ (seat of juristic verdicts) was established at Deoband for the issuance of Fatiiwii in thousands of cases referred to it by Muslims from all over British India.2g Many trusted muftis in different parts of India came to be so consulted. Thefatiiwii-literature which thus came into being gained much currency among Muslims of British India and continues to be popular even now. Some of the well-known published fatiiwl collections are: Fatiiwiii Aziz by Shah Abdul Aziz; Fatiiwiii-Rashidia by Rashid Ahmad Gangohi; Z . al-Fiitiiwa by Abdul Haie Firanghi Mahli; Fatiiwii Aziziyah by Mufti Azizur Rahman; Kifavah al Mufti by Mufti Kifayah Allah (in 10 volumes); and Fatiiwii Deoband (in 12 volumes) The whole of the Fatiiwii literature, only a part of which is collected and published, is symptomatic of the deep urge of Muslims in British India, and even now, to get their disputes settled out of courts of law presided over by non-Muslim judges. The same thinking went onto the establishment in 1340 AH4921 AC of Amarat a1 Sharibh in Bihar under which Mahkumah a1 Qa&’ presided over by a Qii& Sharf settled thousands of civil disputes referred to it. 30 This system is still working in Bihar and Orissa and has been extended to certain other parts of the country in the wake of Shah Ban05 case. The Jami‘iyah ‘Ulam‘i Hind has also recently established a separate Amarat a1 Sharibh at an all-India level. One of the lesser known facts of the Indian legal history relates to an Amendment which Mohammad Ahmad Kazmi moved in the Central Legislative Council in 1361 AHA942 AC seeking attachment into the Dissolution of Muslim Marriages Act, 1358 AHA939 AC, to the effect that only a Muslim judge could take Cognizance of matters covered by the Act. The British government refused to support it and thus the bill did not pass. The State of Kashmir , however, accepted the plea for Muslim judges and fgSee, Tayyab, Qari Muhammad, Dam1 UIoom Deoband (Deoband, 1385 AH4965 AC), JORahmani, AS. and Rahmani, MinatulIah, Mtqkm-e-Q@i’(1379 AH/1959 AC) (Urdu) p. 99 (Urdu). 148 The American Journal of Islamic Social Science Vol. 5 , No. 1, 1988 passed the Jammu and Kashmir Dissolution of Muslim Marriages Act in 1361 AH/lP42 AC.sl Earlier in 1360 AH11941 AC, Muwliinii Ashraf Ali Thanvi and Muwliinli Abdul Karim Gumthauli were instrumental in drafting a bill aimed at establishing a system of Qii& courts to decide matrimonial disputes among Muslims. The bill was removed in the Central Legislative Council, but did not pass due to opposition from the go~ernment.~* D) Judicial Misinterpretation of the Sha Sah: In a recent judgement of the Supreme Court, it was painfully admitted by Mr. Justice Murtaza Fade Ali that all the lower and superior “courts before whom the disputes come up for decision handed down judgements which were not strictly in accordance with the Shurihh and the essentials of the (Islamic) law.”s3 K.P. Saksena gives a list of judgements in which Islamic law had been misinterpreted. In his opinion, “the validity and correctness of many noted judicial decisions are.. .questionable.”34 Latest addition to the list of such judgements is that in Shah Bun05 Under the garb of so called “judicial adventurism” the judges have embarked upon an “operation secularization” of Islamic law in which they do not hesitate in putting their own gloss on the Qur’Bn while betraying their sheer ignorance by saying that the author of the Qur’ln is Muhammad ( SAAS ). Tahir Mahmood wrote, “All this would indeed amount to a virtual destruction of the Q~r’in.’’~6 A detailed discussion of the adverse effects of this activism and attitude of the judiciary on the Shuriizh from the colonial period to the modem day, has already been undertaken by this author elsewhereS7 and need not be repeated 31See, Mahmood, T a i r , Supra n. 12 at 55-57. SPMian, Maulana Muhammad, Jamiht Ulama Kya Hai (Delhi, 1384 AH11964 AC), p. % f o h d . Labbai K Mohd. Hanifa, AIR 1976 SC. 1389 AH11969 AC. 34Saksena, K.P., ”Need for a Code of Muslim Law”, in Mahmood, Tahir (ed,), Islamic 68 (Urdu). Law in Modern India (Bombay, 1392 AH/19?2 AC), p. 134. 3 5 ~ 1 ~ 1985 sc. 945. 36Mahmood, Tahir, “Shah Ban0 Judgement: Supreme Court Interprets the Quran”, Islamic C.L.Q. (1405 AH11985 AC) Vol. V No. 2, p. 112. 37See, for example: Rashid, S.K. & Masood Arshad, ”Judicial Reform of Muslim Personal Law: The Thin Edge of the Wedge”, 6 Aligurh L.J. (1398 AH/1978 AC), pp. 1-n, a slightly different version of the same article under the title: ”Muslim Personal Law in India: An Analysis of Judicial Reform”, Journal Institute of Muslim Minority Affairs (Jeddah) Vol. 3 NO. 1, pp. 72-88; See also Supm n. 7 and; Rashid, S.K., ”The Impact of British Colonialism on Shar- rM: The Indian Experience”, Degel, (University of Sokoto) 1404 AH11984 AC, pp. 125-135; also Radiance, 15-22 Dhu al Hijjah 1406 AH129 Sep.-5 Oct. 1985 AC, pp. 6-7. Syed Rashid Islamization of “Muhammadan Law” in India 149 here. The discussion brings out clearly two things: A libertarian trend among some judges in interpreting Islamic law, and their less than adequate knowledge of the Shuribh. Marginal erosion of the Shuribh, on the other hand continued through legislation even in post-1367 AHA947 AC India. This compelled MuwZiinii Abul Hasan Ali Nadawi , President, All-India Muslim Personal Law Board, to send a memorandum to the Prime Minister Rajiv Gandhi in which he wrote:38 . . . any change in the Sharibh, direct or indirect, through legislation or judicial interpretation, would amount to mudakhaluh ji uZ din (interference in religion) in violation of the freedom of religion guaranteed by the Constitution of India under Articles 25 and 26. E) Apathy towards lslamic Legal Education: Before the advent of the British, Indian Muslims were governed by the Sharibh. The laws of English origin were thrust upon them against their will. Indians were encouraged to study English law courses offered within the country or in England. These new converts to English law became its champions. The indigenous legal systems were either not taught at all or only very cursorily. ’Abd a1 Qadir ‘Awdah, the Egyptian thinker and reformer, graphically describes the neglect of Islamic legal education in the wake of colonialism: Consequent to the introduction of European law to Muslim countries special courts were established. The judges of these courts were appointed from among Europeans or indigenous scholars who had never studied Islamic jurisprudence. Besides, educational authorities had established special schools to teach the new philosophies of law. Naturally, such schools gave full attention to the study of the European codes, neglecting Islamic jurisprudence except in the instance of a few matters such as wuqf This attitude led to a lamentable end, inasmuch as nearly all the jurists, who were among the elite of the educated, were kept ignorant of the principles of Islamic law. It is lamentable because this ignorance is equivalent to their ignorance of the jurisdiction and rules of their religion. . . saMuslim India, Sept. 1984, p. 418. 150 The American Journal of Islamic Social Science Vol. 5, No. 1, 1988 Among the European-educated Muslim elites are those who believe that Islamic jurisprudence is primarily the product of juristic innovations; If one submits to them an Islamic theory of jurisprudence that was unknown to man made jurisprudence till date, they would express their astonishment at the Muslim jurists who could reach levels of judicial competence in the seventh and eight centuries that other jurists could not reach or conceive of until the nineteenth or twentieth cen tu r i e~ !~~ In India, Islamic legal education in the Universities is either totally neglected or given minimal attention by teaching a few topics of ”Muhammadan law” relating to personal status. Even those universities such as Aligarh, which claim to be of Muslim character, or those located in Muslim environments, such as Calicut, are guilty of this. The ‘Anglo-Muhammadan law” appears to be in complete command of the syllabus of every school of law. 4 n d RoCd faat , aCC togst&c, Gy t& .&o/tE WRicR g o d att.zt&a out f o c you, d n d GE not d i w d z d among youu.Axs . Woulson, N.J., A History oflslatnic Law, (Edinburgh, 1971), pp. 149450, cited in Doi, A.R.I., Shanbh 7he Islamic Law, (London, 1984), p. 450, 451.