We all have question in mind why are the Qazis, Muftis wield so much power in India? The power they wield is even more than their Pakistani counterparts. Why so many pupils study in Madrassas? Don’t they care about earning money and building their career? Why Muslims in general take fatwas so seriously, can they just not ignore it?
Well there is answer to the questions above. The answer lies in the law which governs the Muslim personal laws, and that is called the “THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937”. the law is barely 1-2 pages long and I have pasted section 2 which is the crux of the law.
2. Application of Personal Law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
Lets analyze the law which governs the entire personal life of the Muslims. The law simply says that the personal matters will be governed by Shariat. But friends, please note, there is no single Shariat. There are tens(if not hundreds) of interpretation of Shariat. For e.g. there is Maliki school, Hanfi School, Wahabi school, plus many sunnis follow the Shariat as written in “fatwa-e-alamgir” by Aurangzeb. Shia, Sunni and other small Muslim communities follow their own interpretation of Shariat. It is quite possible that Muslims in different villages(and even different families) may be following different interpretation of Shariat. Unlike the Hindu(also includes sikh, buddhist, jaina) or Christian personal laws, which spell out in details how marriage/divorce/inheritance will occur, which court/judge will have what jurisdiction, what is the system of judicial procedure/Appeal etc., nothing of this sort is defined in the above act. This makes the Muslim law subject to wide interpretation and extremely fuzzy.
Lets take an example. Say a Sikh girl marries a Tamil Hindu boy. Both the boy and girl are governed by a same wel-defined law. In case of a dispute they can approach a court and the Judge will adjudicate. Lets take the case of a Muslim couple, say a Tamil Muslim girl marries a UP Muslim boy, they may be following different interpretations of Shariat. Due to these reasons judiciary find it tough to deal with these disputes and eventually the courts don’t adjudicate of matters of Muslim personal law.
What has happened due to this? A parallel judicial system for personal laws have been developed by the Qazis, Muftis etc. Muslims approach them for any dispute on personal matters like divorce, inheritance etc. And this makes the Ulema class extremely powerful. Its no surprise, few months back Owasi/AIMPLB were advocating for Shariat courts in every district.
Now, coming to question why so many madrassas are there in India? The above system provides a lot of respectable job/growth opportunities for Muslim children. Hence they go to Madrassa after which they work as Qazis, Muftis etc. Qazis get promoted to Muftis and Ulema etc.
What should be the solution? A law commission not long back had proposed to codify the Muslim law. What it means is just like Hindu or Christian law come up with an elaborate law which will apply to all Muslims and uniform across all Muslims. Assuming such a system comes to place, then the courts will start looking in to personal matters of Muslims and hence this Qazi/Mufti system will vanish. All non Muslim communities have one personal code each for them, but for the Muslims there are tens of civil codes. In nutshell, I would argue, before we have a uniform civil code across the nation, we should first strive to have a uniform civil code among the Muslims first by bringing the Muslim personal law under the existing judicial system and abolish the Qazi system.
What will happen after this:
- Influence of Ulema will go down and this will reduce the radicalization of Indian Muslims.
- Once the job opportunities offered by the Madrassa system go down, the number of Madrassas will also come down significantly.
Codification of the Muslim personal law will be the second step to a uniform civil code, the first being the abolition of “talaq-e-biddat”. Uniform civil code is a long term(at least 10 year) project. I will try to write my views on how we should take step wise approach to achieve uniform civil code.
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