| March 06, 2008 | Thursday | Safar 27, 1429 |
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Colonialism’s clerical errors
IT may seem ironical that Pakistan’s recent elections have thrown up a coalition of forward-looking liberals whose key objective is to rescue the country from regressive and mediaeval mullahs, while across the border the All India Muslim Personal Law Board (AIMPLB), an officially patronised club of reactionary chieftains, is bracing once again to play its assigned role as the political agents of India’s 150 million bewildered Muslim citizens. But that’s the way this unfortunate reality has evolved in India.
The patronage of the Muslim and I dare say Hindu mullahs by the Indian state is anchored in colonial history. The continued pandering by the state to narrow-minded Muslim lobbies in India is rooted in a different quid pro quo it arranged in 1947. In the early colonial era, the need to administer justice had to be balanced — more wrongly than rightly in my view — by an overt expression of aloofness, insofar as it was considered politically expedient, from native traditions and customs.
Several scholars, historians Radhika Singha and Tanika Sarkar being the more notable of them, have dilated on early efforts by T.B.Macaulay to formulate a penal code for British India. The body of existing criminal law he wanted to sweep away has been described as an Anglo-Mohammedan construct, which according to Singha, had “assembled over preceding half century from modifications of Islamic law, supplemented by Company regulations, and clarified by various construction and circular orders.”
Relics from that period of pre-modern transition have not waned completely but continue to surface in our midst ever so often. In an expression of entrenched atavism, we saw how former BJP lawmaker and mother figure of the Hindutva campaign, the late Rajmata Vijaya Raje Scindia, had led the campaign to revive sati. This, in her opinion and that of countless religious gurus whose support she had, would restore to a Hindu widow her divine right to die with her husband.
Of course the barbaric exploits of the AIMPLB are better documented thanks to the media’s keen interest, particularly in the case in which they had sought to deprive a Muslim divorcee her rights as an equal citizen of India.
Two examples culled from Singha’s book –– A Despotism of Law: Crime and Justice in Early Colonial India — usefully focus on the genesis of our current problems with obscurantist groups.
William Bentinck’s minute on the case to abolish sati indicates he was addressing the issue to diverse European groups. Before Bentinck’s moves similar efforts to extend a uniform law on Indian subjects were fraught with communal challenges. For example, in 1810, Bengal’s Nizamat Adalat had confirmed that Hindus could assist the aged or those afflicted with leprosy to end their lives if it was a voluntary act, because the practice had the sanction of shastras. “However, Muslims would not be exempted from prosecution because there was no such sanction in Islamic law.”
The colonial rulers retained India’s customary inferior status of women. However, a case of elopement or abduction as also zina triggered different responses from the higher and the lower castes. The ‘respectable classes’ objected to the principle of legal independence in their female relatives as an encroachment on the authority of the head of the household. Yet they also indicated their expectations of magisterial support in exercising this authority over all domestic dependants. The ‘lower orders’, evidently less intimidated by social slurs, “had found criminal charges a cheaper and quicker means of tackling the defection of a wife or a daughter than civil process,” observes Singha.
Sir Syed Ahmed Khan quite evidently represented the upper crust. And so in his explanations of the 1857 revolt he argued that the husband should be able to call upon the magistrate to restore his wife, irrespective of her consent. He argued, “It would be impossible to overstate the disgust which was felt by all Hindustanis at the licence given to women in criminal actions – even married women were recognised in the Criminal Courts as competent. To give a married woman such a liberty was simply to deprive her guardian of all power over her; and not only this but the measure was altogether opposed to the spirit of the existing religions.”
What happened in post-colonial India was not too different from the dithering witnessed in the British era. In October 1948, Dr B.R. Ambedkar submitted the Hindu Code Bill to the Constituent Assembly in an attempt to codify an egalitarian Hindu law. The bill caused great divisions even in the Congress Party. Consideration for the bill was postponed to September 1951. When the bill was taken up it was truncated. A dejected Ambedkar relinquished his position as law minister and frustrated by the rightwing assault on his vision of a modern India, embraced Buddhism in 1956.
Rightwing Muslim groups too demanded their pound of flesh from the Indian state. The refusal by some of them, particularly those who belonged to the Deoband seminary of Wahabi Islam, to accept Mohammed Ali Jinnah’s campaign for Pakistan as Islamic at all became a key factor in the quid pro quo. There were leftist and liberal opponents of Pakistan among Indian Muslims, but they were numerically negligible.
Moreover, the mullahs had opposed Pakistan at no cost to the state exchequer. All they wanted was permission to keep their flock in self-perpetuating ghettoes. This has resulted in the laughable though officially sponsored stereotypes of pan-chewing, fez cap wearing Muslim elders with flowing beards, proclaiming allegiance to Mother India in a maudlin embrace with a turbaned Sikh or a stereotype Hindu identified by a vermilion mark on his forehead.
It would be difficult after all for the popular calendar art nationalists to accept ‘normal looking’ intellectuals like Sardar Jaafri, Kaifi Azmi or Prof Irfan Habib as representative of an ethnic group. Since Muslim women in the opinion of AIMPLB are required to wear burqas, there is no point juxtaposing the orthodox with a ‘normal’ version of a Muslim woman who could be a film star, a musician or a famous writer.
Last week the Indian media was in raptures over what it naively believed was some kind of an edict the Muslim chieftains of AIMPLB issued against terrorism. The tendency to not ask or face exacting questions may have made the media complacent if not conniving in spreading the fiction about fighting terrorism by religious edicts.
The well meaning journalists seem unable to grasp the simple fact that if edicts could stall Osama bin Laden’s madness, the extremely resourceful King of Saudi Arabia, his main quarry, would have got a leading cleric in every Muslim mohalla to issue fatwas against Al Qaeda’s adventurism.
But let us not be too harsh on journalists. To the uninitiated it does sound pleasing to the ears that so many seemingly respectable religious preachers lend their voices in a collective call against bin Laden’s brand of fanaticism. They do not realise that several groups within the AIMPLB preach and patronise the most mediaeval notions of Islam, part of the legacy of colonialism’s clerical errors.
The writer is Dawn’s correspondent in Delhi.
jawednaqvi@gmail.com
