How personal is the law?

WHO said that Indian Muslims must “reinterpret the foundational legal principles in the light of their own experience and the altered conditions of modern life”? The Chief Justice of the Supreme Court of India, V.N. Khare? The prime minister of India, Atal Behari Vajpayee? The chief of the Rashtriya Swayamsevak Sangh, K. Sudarshan?

The correct answer might shock some of the hardliners who have become self-appointed arbiters of the destiny of Indian Muslims. This was the view of a philosopher-poet who took Mirza Dagh as his mentor, stirred Muslims as no one before had done with epic nazams like Shikwa and Jawab-e-Shikwa, received a knighthood in 1922, and presided over the Allahabad session of the All-India Muslim League in 1930 where in his presidential address he proposed that “Punjab, North-West Frontier Province, Sind and Baluchistan be amalgamated into a single state”. No one would call Sir Muhammad Iqbal a kafir. When he died in Lahore on April 21, 1938, the community honoured him with a tomb in the compound of the famous Badshahi mosque built by Aurangzeb.

Iqbal elaborated in his seminal analytical work “The Reconstruction of Religious Thought in Islam”: “The teaching of the Quran, that life is a process of progressive creation, necessitates that each generation is guided, but unhampered, by the work of its predecessors, should be permitted to solve its own problems.”

It is a myth that Islamic law is not amenable to reinterpretation. Islam has always been a dynamic faith, not a static one, and principles have been placed in context whenever needed. The oft-cited instance of the Quranic injunction against usury is as good an example as any. The Quran, which Muslims treat as the word of God, is unambiguous about this evil. Verse 275 of the second Surah, Al Baqarah, begins: “Those who devour usury will not stand except as stands one whom the Evil One by his touch hath driven to madness.” The next verse is equally specific: “Allah will deprive usury of all blessing, but will give increase for deeds of charity, for He loveth not creatures ungrateful and wicked.” The translation is by Abdullah Yusuf Ali, who points out in a note: “Usury is condemned and prohibited in the strongest possible terms. There can be no question about the prohibition.”

When we come to the definition of usury there is room for difference of opinion. It is this “difference of opinion” that has enabled all but a thin fringe of Muslims to take interest from banks without feeling that they have defied a Quranic injunction.

Islamic law is based on the injunctions of the Quran, and the practice of the Prophet, who was both a messenger of Allah and a ruler of men. But this canon has been subject to seven yardsticks: ijma (consensus), ijtihad (judgment), qiyas (analogy), istihsan (equity), istislal (public interest), urf (custom) and istidal (legal reasoning). Each of these is a parameter of change, without sacrifice of any basic principle. The principle is that theft should be punished, but both judgment and public interest rule that theft can be curbed in the twentyfirst century without recourse to slicing off hands. The social purpose of law is to curb the evil, not torture the individual.

This is not the way the All-India Muslim Personal Law Board, which has become the first and last word in Muslim affairs, sees either law or life. But before we proceed, where did it come from? What sanction does it have? Do its members get elected by any forum or by the Indian Muslim community? On what basis does it call itself representative? How is its executive appointed? Judging by the way it behaves, it might seem as if the Board has been controlling the destinies of Indian Muslims ever since Muhammad bin Qasim stepped into Sindh in 711. To discover the truth we have to step a mere twelve centuries forward.

In 1972, the late Qari Mohammed Tayyab suggested the formation of a lobby group at a meeting in the seminary of Deoband. A convention was held in Mumbai on December 27-28, 1972, to establish the All-India Muslim Personal Law Board (AIMPLB), with Tayyab as the first president. It had an uncomplicated agenda: to thwart any effort to interfere, by either the government or the courts, with its interpretation of the Islamic law (or Shariat).

In effect it meant that this body of clergy and like-minded politicians and activists would oppose any change, even if that change was beneficial to the community. It gave to itself veto rights on Islamic law; its continual slogan was “Islam is in danger!”; and its mission was to herd an insecure community into a vote bank that it would deliver to those who were ready to recognize its sole spokesman role for the Indian Muslim community.

So far it has held ten all-India sessions. Its 41 executive members are not elected by Muslims, but inducted in the manner of a private club. It would be unfair to suggest that everything it has done is necessarily regressive, but it would be fair to say that this has been its broad thrust, as can only be expected of a body so heavily weighted by the influence of the clergy.

Its attitude towards social reform is best summed by the position it took on family planning. It is interesting that political parties ideologically close to the Board, like the Muslim League, supported the imposition of the Emergency by Mrs Indira Gandhi in 1975. But what might be called the “Muslim Parivar” changed tack when Mrs Gandhi used the Emergency to push some overdue social programmes like family planning. At an extraordinary meeting held on April 17-18, 1976, the Board declared that sterilization (nasbandi) was haram or prohibited.

In all matters of family law the Board has taken a male-oriented view. Its most dramatic success was the blackmail of an inexperienced Rajiv Gandhi over the Supreme Court decision in the Shah Bano case. The Board mobilized Muslims and forced Rajiv Gandhi to deny a poor, ageing divorcee minimal maintenance from her estranged husband. I daresay that if among Muslims only women for some reason were thieves, the Board would have demanded that their hands be cut off. However, the Board has not suggested that Muslim thieves should be awarded the Quranic punishment irrespective of how Indian law treats non-Muslim thieves. It accepts reform for thieves, but not for divorcees. I find it appalling.

The Personal Law Board became a serious political player after the Shah Bano case. This continued with the Babri Mosque dispute, where it continues to dictate on behalf of the Muslims without any democratic reference to what Muslims might actually feel. It is perfectly possible that the overwhelming majority of Muslims might agree with the hardliners in the executive body of the Board, but there is no methodology to determine this. In fact, the problem with this dispute now is that it is in the clutches of the Board and organizations like the Vishwa Hindu Parishad (not to mention social arsonists like Praveen Togadia) who are determined to shape the future only on the basis of their limited agenda. India is under siege from their veto.

The tension between change, reform, tradition and law is a familiar dynamic of the last two centuries; it is a process that long precedes the arrival of democracy. Justice Khare’s judgment on the need for a common civil code reaffirms a principle laid down in the constitution, but falters when it ignores the complexities of social change. At one level the court has not forgotten the scars of Shah Bano, nor should it. The success of fundamentalists in blocking reform in Muslim personal law is another instigation. But there are other issues that need consideration before the demand for an immediate uniform civil code becomes a battle cry. All communities are as reform-sensitive as Muslims, particularly where tradition has generated vested interests. Hindu law itself is not as uniform as some reformists would desire it to be.

Sir W.H.Sleeman is the much-vaunted British Raj officer who allegedly eliminated thugs from central India. I do not recommend his memoirs (‘Rambles and Recollections of an Indian Official’) to those with high blood pressure; Sleeman is only another pompous windbag when it comes to “natives”. But he is extraordinarily perceptive about the subtleties of administration. He tells the story of Charles Harding, of the Bengal Civil Service, who in 1806 prevented the widow of a Brahmin from committing suttee. But a year later, her family prevailed and she was placed on a funeral pyre at Ramnagar, some two miles upstream from Benaras. As soon as the fire was lit, she jumped into the river; her clothes kept her afloat, and the current took her to the city where she was rescued by a police boat. Benaras was in uproar, and all the worthies suggested that the young officer return the widow to the pyre if he wanted to preserve the peace.

Harding exhausted all the rational arguments, in vain. The crowd still bayed for suttee. Suddenly he had an inspiration. He had not saved the widow, he told the crowd; Mother Ganges had saved her. How else could she have survived without knowing how to swim? Her sacrifice on the pyre was obviously unacceptable to the river, or the Ganges would have received her. The point was unanswerable. The widow survived. There is no substitute for persuasion.In 1826 Lord Amherst asked for the views of seven European district magistrates of central India on whether a ban on suttee would be acceptable to the people. All seven said it would not. But when Lord William Bentinck did ban suttee a few years later, not a murmur was heard. The British Raj clearly had a motto: Just do it.

The writer is editor-in-chief of Asian Age, New Delhi.

Balance and harmony

HOW to live with peace and tranquillity has always been the main problem of human societies. The Quran provides the most appropriate solution in this regard when it says “He raised the heavens high and set the balance. Therefore do not disturb the balance” (55:7,8).

From the above verses it follows that after raising the heavens which means all the stars, planets and all other celestial bodies, Allah set the balance. In other words, Allah placed all the stars, planets and other celestial bodies in proper order so as to maintain the requisite degree of balance and equilibrium (27:88). It is on the basis of this balance that the system has been functioning with harmony and it is because of this harmony that it has survived for billions of years.

The lesson one should learn could, therefore, be that order is the pre-requisite of balance and balance is the pre-requisite of harmony while harmony is the pre-requisite of survival. In this way, the Quran first tells us about the principle on which the system of the whole universe has been designed and then advises us to abide by the same principle if we have to survive in the system. This, in the context of present conditions in the world, would mean abiding by the principles of justice in one’s dealings with others, respecting the legitimate rights of one another, avoiding commission of excesses against one another and cooperating with and helping one another when there is need for such cooperation and help.

Who could be the most appropriate person to whom the responsibilities of state should be entrusted is another human problem about which the Quran provides excellent advice when it says “Lo! Allah enjoins you to give trusts into the care of those who are worthy of trust and to judge with justice, when you judge between them” (4:58). The word “trust” in this verse is to be understood in the same sense as explained by the Prophet (Peace be upon him) when some one asked him as to when the Day of Judgment will come. “When the people start violating trusts, you should wait for the Day of Judgment” the Prophet said. “What does that mean” the man further asked. “It means when the responsibilities of state are entrusted to those who are not worthy of it”, the Prophet replied.

Likewise, when Hazrat Abu Dhar requested the Prophet for appointment to a public office, the Prophet told him “Public office is a trust, a source of lamentation and remorse on the Day of Judgment except for him who takes it up with full sense of responsibility and duly discharges its obligations. “ Through the above verse, the Quran, therefore, advises us to entrust the responsibilities of state to persons who are worthy of it i.e. who are capable of discharging such responsibilities in a proper way.

The Quran also provides specific indications as to who could be capable of discharging such responsibilities in a proper way. When Hazrat Yusuf asked Pharaoh for appointment to an important office of the state, he stressed two qualifications in that behalf which according to him (Hazrat Yusuf) he met. One was that he was “hafeez” and the other was that he was “aleem” (12:55).

The Arabic word “hafeez” means protector, custodian and a man of integrity whereas the word “aleem” means being knowledgeable, competent and a man of vision, both of which in the modern terminology imply integrity and competence. Both these qualifications have been approved by the Quran as is evident from the next following verse which says: “Thus we did give established power to Yusuf in the land to take possession therein as, when and where he pleased” (12:56).

Communication plays vital role in all human relations. Slightest slip or distortion in the communication process or misunderstanding of a report or message can be the cause of irreparable loss. Since we often act on the basis of information received from or through others, it is advisable that such information is carefully examined before acting upon it specially when it is conveyed or received through a person of suspicious character.

In this connection the Quran specifically tells us “O you who have believed, if a wicked person brings some news, enquire into it carefully lest you should harm others unwittingly and then be sorry for what you have done” (49:6).

Even if the information is given by one who is not wicked, there is still need for verifying the same before acting on it. Most of the information conveyed by or received through others comprises two elements. One is the fact or facts which the informer might have seen with his own eyes, or heard with his own ears or felt with any of the relevant senses. The other is the inference or inferences that he might have drawn from what he saw or heard or felt. Facts can be rarely wrong. But inferences are mostly wrong, even if honestly drawn, unless they are based on some conclusive evidence. In this connection the Quran clearly cautions us when it says “A conjecture can never take the place of truth” (53:28).

Some people often blame others for the wrongs or errors which they themselves have committed. This can have a two-fold effect. One is that it increases the burden of the person who passes the blame to others. He is already burdened with the responsibility of having committed the wrong. By passing the blame to others he places an additional burden upon himself, the burden of falsehood. Second, a person who blames others for the wrongs done by him can never be properly guided to mend his ways so as to avoid doing wrongs. A person can be guided to mend his ways only when he admits his fault. In this connection the Quran says: “And whoso commits a delinquency and then throws (the blame) thereof upon the innocent, has burdened himself with falsehood and a flagrant crime” (4:112).

Bless the world

KELSEY Kemper Valentine, the 12-year-old daughter of a friend of mine, asked me, “Why does President Bush say at the end of his speech, ‘God bless America’ instead of ‘God bless the world?”’

It was a very interesting question and deserved an answer.

I told her, “It’s because he doesn’t want God to bless everyone in the world. There are a lot of people and places he doesn’t want God to bless.”

“Why not?”

“When the president gets mad at someone, he wants God to know about it. For example, he certainly doesn’t want God to bless Osama bin Laden or Saddam Hussein, if they are still alive.” Kelsey was listening to every word.

I continued. “And he doesn’t want God to bless Castro, the Taliban or the Hamas in Palestine.”

Kelsey asked, “How does Bush decide who God shouldn’t bless?”

I replied, “He meets with his top advisors and they brief him on whom God should bless. For example, he doesn’t want anyone in the U.N. that voted against America to be blessed. You never heard Bush say, ‘God bless France’ or Germany or Russia or Iran. Once the decision is made — that’s it.” Kelsey looked perplexed.

“Now it’s obvious the president doesn’t want God to bless terrorists. He consults with the CIA and Attorney General Ashcroft. The only time he wants God to bless them is when they have had a military trial and are going to be executed.”

Kelsey nodded as I continued, “This is important. When Bush says ‘God bless America,’ he is not talking about all Americans. He is only asking God to bless Republicans, conservative supporters and Vice-President Cheney. He also doesn’t want God to bless liberal members of the media, and naturally, the Americans who did not support him in Iraq as well as traitors who still think there are no weapons of mass destruction in Iraq.”

Kelsey asked, “How does God know who the president really wants him to bless?”

“God knows Bush very well. He knows what is really in his heart. That is what makes him a great president.”

“How does God have time to do everything Mr. Bush wants him to do?”

“He makes time. America is one of his favourite causes. He always answers President Bush’s calls and never puts him on hold. Bush has a red phone on his desk, and it’s a special line that no one else uses.”

“Doesn’t he have a cell phone when he is travelling?” Kelsey asked.

“Yes, and when he is on Air Force One he is patched into heaven. The U.S. has the most modern communications of any country in the world.”

I said, “Kelsey, you are very smart to ask the question. Most adults wouldn’t ask. As a matter of fact, many people think the president is God, which of course, is not true.”

“Are you going to be in trouble for saying all this?”

“No, but Jerry Falwell will be mad as hell.”—Dawn/Tribune Media Services

Let them eat yellowcake

A WELL-BRED Englishwoman approached the Duke of Wellington long after the carnage at Waterloo was cleared away. “A victory”, she gushed, “must be the most wonderful thing in the world.” The crusty old warrior regarded her a moment and replied, “A victory, Madame, is the worst thing in the world, except only for a defeat.”

This infinitely polite retort could come only from a wise commander and savvy statesman. These days, however, the aspiring rulers of the world in Washington DC resemble a horde of reckless self-righteous novices, more like the well-bred woman than, as some of them might fancy, Wellington.

Was it only a few months ago when George Bush junior and his super hawk advisers gloated over their swift victory over puny Iraq and invoked their divine right to invade any non-nuclear foe they pleased? (Iran and Syria were prominent on the pushover hit list, but not militarily formidable North Korea.) In their frothy haughtiness the Bush team evoke no one in literature more aptly than Daisy and Tom Buchanan, the recklessly wealthy heirs in F Scott Fitzgerald’s classic novel ‘The Great Gatsby’.

Bush cabinet members reportedly boast average wealth holdings of 20 to 30 million dollars. Money in these hefty doses confers privilege, helps those who have it escape consequences, and enables petty people with no flicker of imagination to imagine they are superior beings. Only sycophants, for example, could detect any charm in a Donald Rumsfeld press conference, always a display of condescending bluster by a man who has never been anything but other people’s boss all his life.

So, after 9/11, critics of Bush were brushed aside. Domestic opposition was cowed. American media commentators even began to utter the word “empire” without any trace of embarrassment -for Americans think of themselves as an anti-imperialist people despite the niggling matter of genocide against the American Indian. When viewed correctly, empire, commentators dutifully explained, is an act of sublime self-sacrifice by a dominant power working hard for the welfare of the dominated.

So America ought to assume what French imperialists in their Algerian and Indochina heyday liked to call ‘la mission cilviliatrice’. All that was missing was a brand new Kipling to celebrate in hearty verse the travails of bearing the white man’s burden in a brave neo-liberal world. Today we call it democracy.

This euphoria didn’t last very long. British prime minister Tony Blair is fighting for his political life. The UK uproar over rigged intelligence about Saddam seeking yellowcake uranium in Niger or being capable of launching WMD in 45 minutes is reaching Bush, who already bravely has scapegoated his CIA director. While in England Dr David Kelly an advisor to the ministry of defence committed suicide.

Above all, Iraqi elements, who are not thrilled by the prospect of a protracted Anglo-American occupation, are exacting a steady deadly, daily toll on the occupiers. Bush is starting to squirm and not even his quarter of a billion dollar campaign fund may guarantee re-election if the US economy remains sluggish and casualties abroad mount.

Baghdad suffered its fair share of powerful invaders from Halaku to present-day armoured divisions. As the Ottoman empire crumbled, several foreign powers meddled in the Middle East but one constant factor was Great Britain. Britain cunningly supported Arab struggles for independence but (given the secret Sykes-Picot treaty) ditched all that once Turkey was defeated.

The British occupied Basra in 1914 but a march on Baghdad in April 1915 led to a terrible but temporary defeat.The British later fashioned the provinces of Basra, Baghdad and Mosul - containing rivalrous Sunnis and Shiites and Kurds — into modern Iraq. Kurdish lands quickly were divided among several countries while new Arab states were concocted with the stroke of a pen on a blank map.

The British secured a League of Nations mandate, which triggered a widespread revolt in 1920. RAF planes punitively strafed, bombed and gassed Arab and Kurd villages and some six thousand people were killed. Churchill supported the use of chemical weapons. Afterwards Britain installed a Hashemite monarchy to soften direct rule. Faisal became the king whom French had earlier thrown out of Syria. The first oil fields, found in 1927, naturally deepened imperial interest. The British, as Charles Tripp observes in his study of Iraq, predictably created “the order which they believed best suited the idea of the mandate and the protection of British interests” — an order that was “unmistakably hierarchical and authoritarian.’

The monarchy ended bloodily in 1958 when nationalistic army officers seized power. Supported by an influential communist party Brigadier Abdel Karim Qasim launched long overdue, if mild-mannered, land reforms. Qasim, however, rashly demanded Kuwait to be integrated into Iraq, threatened to nationalize a major oil company, and did withdraw from the Baghdad Pact — alarming the US and setting an overthrow in motion. The CIA energetically backed the Baathist coup in 1963 and even bragged about it later. Saddam Hussein, who was in Egyptian exile in the late 1950s and early 1960s, reportedly made many visits to a CIA contact. Saddam, a virulent anti-communist, was just the sort of thug that the CIA found attractive in targeted countries. After the 1963 coup the CIA, according to Con Coughlin’s biography of Saddam, provided the Baathists with a hit list of suspected communists that Saddam helped round up and kill. The CIA was similarly helpful to even more lethal effect in Indonesia in 1965. Meanwhile, the Kurds, who fought the Iraqi army since 1961 with aid from the Shah of Iran, collapsed when a Machiavellian agreement was conveniently worked out in 1975 between Iraq and the Shah.

Saddam Hussein succeeded al-Bakr as president in 1979 and launched routine ruthless purges and his garish personality cult. This was the traumatic time of the hostage crisis when the West lost its hold on Iran. Khomeini’s ascent to power ejected the main American ally, the Shah. The Iranian ayatollahs goaded Iraqi Shi’a organizations to resist Saddam in the name of irresistible Islamic fundamentalism. During this process the liberal elements in the Iran government lost power and the regime totally came under the ayatollahs.

The British empire is a sepia-toned memory but, like all post-war British leaders, Blair obligingly adapts his foreign policy to that of the United States in order to play at least a minor role on the world stage. Anglo-American forces now are nervous and harried victors who face an increasingly dire scenario where Baathist diehards, tribal dissidents, aggrieved nationalists and just plain angry residents combine to make a shoddily planned occupation a gory chore.

While there is no question that most Iraqis are pleased to be rid of Saddam, suspicions grow day by day among a hard-pressed populace about Anglo-American intentions. The occupying forces are caught in an excruciating dilemma: they dare not pull out, or at least cannot do so without first restoring physical facilities (electricity, water, etc.) and installing a stable and widely approved government. Otherwise, Saddam or an ayatollah may pop up.

Yet a truly legitimate government, which would dampen resistance, is unlikely to play along with Yanks’ plans to control the region. So will Bush be pushed by force of circumstances to do better by the Iraqis than he originally intended? Unlike the feckless couple in ‘The Great Gatsby’, will the Bush administration be called to account? Perhaps the real ‘mission civiliatrice’ today is for citizens to work to ‘civilize’ their own rulers so as to meet higher international standards of justice and decency.