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South Asia: India

By:
Fareeha Khan
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

South Asia: India

As elsewhere in the Muslim world, Indian Muslim religious scholars (ʿulamāʾ) have played the part of being the custodians of the Islamic legal tradition. Prior to the colonial period all Indians, including Hindus and Muslims, as well as other religious groups, usually resorted to local forms of arbitration and adjudication. Under Mughal rule there were Islamic courts and judges (qāḍīs) that Muslims and others could resort to, but the hierarchy of legal jurisdiction was nowhere near as structured as it would become under the Anglo-Muhammadan courts. Cases could be settled via arbitration done through village councils (panchāyats), or by the contending parties having their case adjudicated by a qāḍī in as informal a setting as a mosque or the home of one of the disputants, as long as witnesses were present.

While there is scattered evidence that confirms the above, further research needs to be done on studying the role of the ʿulamāʾ’s articulations of the Sharīʿah in India during the premodern period. We do not have much information, for example, on what effect the pronouncements of muftis had on religious practice in precolonial India, or even how qāḍīs of this period interpreted and applied Islamic law. While important studies based on court records have been conducted on the work of Muslim qāḍīs in the Ottoman lands, no such records exist for India. It is thus difficult to say how the Sharīʿah was actually enforced. As Muhammad Qasim Zaman points out, fatwā collections such as the seventeenth-century Fatāwā ʿĀlamgīrīyyah (known as Fatāwā Hindiyyah outside of South Asia) hint at a possible diversity of legal practice, since the stated goal of this text was to provide a “more authoritative” compilation of Islamic legal rulings. The very existence of this text however, and its continued use among present-day Ḥanafī scholars, is proof that the Indian religious scholars were connected with the broader Islamic legal tradition and felt it important to promulgate “authentic” versions of Islamic legal thought at least at this point in the precolonial period.

The qāḍī system that operated under Mughal rule had its roots in the system developed by the ʿAbbāsids (Masud, p. 15). Muslim judges were the ones who adjudicated cases such as those concerning family law, and attempted to abide by the Sharīʿah when doing so. This situation changed in important ways, however, with the onset of British colonialism. In 1765, when the East India Company acquired control of the finances of Bengal, Bihar, and Orissa, their influence also extended to the judicial administration. Legally areas like Bengal remained officially under Mughal rule, and under the terms of the treaty, the British agreed to retain the Sharīʿah as the law of the land. But already in 1772 structural changes began to take place. The British set up civil and criminal courts that were headed by British judges, but these judges were helped in the legal decision-making process by officially appointed maulvis (Ar. mawlawīyah) and “pandits” (Muslim and Hindu religious scholars respectively).

According to Indian legal scholar Asaf A. A. Fyzee this policy was a continuation of the basic structure laid down in Mughal times. The Mufassal Regulation of Warren Hastings (1772) later reenacted formally in the Regulation of 1780, stated:

"That in all suits regarding inheritance, marriage and caste, and other religious usages or institutions, the laws of the Koran with respect to the Mahomedans, and those of the Shaster with respect to the Gentoos [Hindus], and where only one of the parties shall be a Mahomedan or Gentoo, the laws and usages of the defendant shall be invariably adhered to" (Fyzee, p. 412).

Discovering what exactly the law was according to these two religious traditions was no easy task. Islamic law had never been codified, and in fact the legal corpus consisted of a range of possibilities in terms of the legal rulings. Important texts of the Ḥanafī school, such as the one commissioned by the Mughal emperor Aurangzeb ʿĀlamgīr (d. 1707) (the Fatāwā ʿĀlamgīrīyyah, mentioned above) included under any given topic a range of Ḥanafī precedent, highlighting the most authentic or reliable opinion, but in no way rejecting the “minor” opinions of the school. Hindu law had similar if not greater challenges. Whereas the Muslims had existing compendia of religious law, the British had to commission a panel of pandits to produce a similar compilation of Hindu religious law. The Brahman scholars had to pick out sentence by sentence laws from the Sanskritic texts, after which these were translated into Persian (since so few British at the time knew Sanskrit) and then finally into English. As Barbara Metcalf observed, “The arduous process of compilation made clear the artificially contrived nature of the whole enterprise.” Regardless of the artificiality of its origins, the precedent set in the Hastings era of defining India’s populace according to corporate bodies would have a lasting effect on the negotiation of rights and legal status for independent India’s religious minorities.

As the judicial seats became increasingly occupied by British rather than Indian judges, the legal rulings as contained in these “native” structures of law came increasingly into conflict with the common law of the metropolis. As early as 1726 the colonial court judges were instructed to give judgment “according to justice and right,” which eventually came to mean specifically British notions of justice and right, as defined by British, not native, lawyers. This rule was later spelled out as saying that “when no specific rules were laid down” the judges were to act “according to justice, equity and good conscience.” The latter phrase was frequently cited, and was eventually defined more concretely “to mean the rules of English law if found to be applicable to Indian society and circumstances” (Fyzee, p. 412–413).

In relation to criminal law, the British soon established their own standards in the interest of securing order and control. They replaced certain Islamic punishments (such as those requiring amputation and stoning) with prison sentences and hard labor. On issues such as capital punishment, rape, and theft, they issued “new regulations aimed at bringing Ḥanafī criminal law more closely into line with the stricter and more severe British notions of justice” (Masud, p. 38). Crimes like murder were no longer to be resolved among affected parties, but as crimes against the state. With the eventual passing of the Indian Penal Code 1860 and the Code of Criminal Procedure in 1861, the primacy of the Sharīʿah in criminal cases was finally abolished.

Unlike criminal law, the laws of personal status continued to retain a connection to each religious community’s legal tradition. The fact that the British did not insist on legal uniformity in this area is perhaps not surprising, given the fact that ecclesiastical courts were still in operation in the metropolis. However, change was subtly affected even in these matters. The major contention the British authorities had against application of Islamic law was the perceived arbitrariness or indeterminacy of Ḥanafī legal rulings. While judicial discretion still played a role in deciding cases in England, it was Indian precolonial law and legal practice that was seen by the British to be “uncertain, unsystematic, and arbitrary.” As mentioned above, colonial officials desired a source more reliable and consistent than simply consultation with maulvis, and they came to decide on specific texts within the Ḥanafī tradition as being the most authoritative as a way to systematize their application of Islamic law. Such an attitude on the part of the British posed a dual attack against the ʿulamāʾ: not only had their primary role in society as interpreters of the sacred law been usurped but they were also being told that the sacred law itself lacked cohesion and was therefore somehow methodologically or structurally unsound. The entire basis on which the authority of the ʿulamāʾ rested—that of a methodological discourse based on Islamic legal tradition—was being fundamentally called into question.

In the years leading up to the partition and independence of the modern nation-state of India, the ʿulamāʾ continued their efforts at upholding Islamic law and encouraging Indian Muslims to do so in their public and private lives. One such effort was the formation of institutions where knowledge of the interpretation and practice of Islamic law were taught. The Deoband madrasa, founded in 1867, is the most well-known of these institutions. Of course, madāris or religious seminaries had long existed in India to train jurists, but what was unique about Deoband was that it borrowed certain features of modern Western education, such as the idea of required coursework in a set curriculum, matriculation, and a formal series of examinations. Aside from the training of scholars qualified to issue fatāwā, the most influential aspect of the school was the issuance of the fatāwā themselves. By 1893 the school could not handle the requests for fatāwā coming in from across India, so it formed a separate dār al-iftāʾ, or division for the issuance of fatāwā. The school’s administration aimed to create a collection of fatāwā as definitive as the collection of the emperor Aurangzeb mentioned above, and by the end of its first century of existence, Deoband’s dār al-iftāʾ counted 269,215 fatāwā in its register (maintained from 1911 onward) (Metcalf, p. 146). The dār al-iftāʾ at Deoband, and others like it across the subcontinent and in the Indian diaspora (in places like the UK, US, and South Africa), continue to play a vital role in providing religious guidance on the legal (as well as to some extent the theological and social) questions and concerns of South Asian Muslims.

While fatāwā, or non-binding legal opinions, continue to be given in public and private contexts within India to the present day, the Islamic qaḍāʾ or judicial system was abolished early on by the British during colonial rule (as seen in the discussion above). The absence of Islamic courts had the most palpable effect on how Indian Muslims dealt with woman-initiated divorce, since marriage is a religious contract that, in the Ḥanafī school, can only be dissolved with the consent of the husband or by a Muslim qāḍī. Initially in the nineteenth and early twentieth centuries Indian ʿulamāʾ had called on Muslims to petition the colonial government for the appointment of Muslims judges within the colonial court system. However, when it became clear this would not happen the Ḥanafi-Deobandi jurist Ashraf ʿAlī Thanawī (d. 1943) published a fatwā, for which he received prior approval from other leading Indian Ḥanafī jurists, allowing for: 1) the expansion of the grounds upon which a Muslim woman could seek dissolution of her marriage, borrowing from the Mālikī school, and 2) the recognition of informally formed religious councils, giving their legal opinions the weight of a judicial verdict, such that the council would take the place of a qāḍī (maqām al-qāḍī), as is allowed in the Mālikī school in the absence of a Muslim qāḍī.

The provisions of this fatwā informed the Dissolution of Muslim Marriages Act of 1939 (DMMA), which upheld the grounds on which a Muslim woman could seek a divorce and expanded these grounds further still. But the DMMA did not make any provision for the appointment of Muslim judges or for the recognition of the verdicts passed by Muslim legal councils. Such partial recognition of Sharīʿah on matters related to personal law continue to cause Indian Muslims to be circumspect about any laws pertaining to Muslims enacted by the post-colonial Indian nation state. Conversely, secular and nationalist (largely Hindu) Indians view Muslims with suspicion, fearing that the latter’s demands for legal accommodation only indicate the separatist and unpatriotic nature of the Indian Muslim minority. Instead of allowing Muslims more say in their own legal affairs, the latter groups are increasingly calling for a Uniform Civil Code (UCC) that treats India’s population as a body of individual citizens “equal before the law” and not as separate blocs of religious minorities.

This seemingly intractable situation has its roots in colonial-era policies. Since the creation of the categories “Hindu” and “Muslim” in the Hastings era (which lumped people of diverse social, cultural, and sectarian backgrounds into two large divisions), Muslims have been put in a position where upholding Islamic law on matters of personal law has become a matter of identity as much as it is a matter of practice and belief. The same is not true for Hindus, since the category of “Hindu” has become sublimated into the category of “Indian nationalist” for a number of reasons. First, Hindu reformers of the colonial era tended to construct their arguments for personal law reform in more secular terms than their Muslim counterparts, since they did not possess an as cohesive and comprehensive existing legal system. Second, the partition of colonial India in 1947 into the sovereign states of India and Pakistan suddenly gave Hindus in India a large popular majority, such that Hindu majority interests could easily be conflated with that of the Indian national will. As Eleanor Newbigin has argued, “the more ‘secular’ basis of Hindu reformers’ claims made them more dependent on, and therefore brought them into closer alliance with, the structures of civil power and apparatus of the state. For Muslims, however, law reforms granted greater power and autonomy to extra-state authorities—to Muslim religious clerics and jurists” (p. 32).

In effect, this has continued—albeit in a unique, modern fashion—the long-standing role of Muslim religious scholars serving as custodians of the Islamic legal tradition. The derivation and dissemination of fatāwā, the continued presence of religious seminaries like that at Deoband, and the establishment of informal legal councils or tribunals made of up of Muslim jurists qualified to give rulings on matters such as marriage, divorce, custody, and inheritance, has served to maintain the presence of, and access to, Islamic legal interpretation in India. Muslim Personal Law (MPL) has also taken on a particularly charged meaning, the preservation of which represents for (many) Indian Muslims the last remnants of Muslim control of their own affairs.

MPL as a legal system exists today both in statutory form (of which the DMMA of 1939 is an example), as well as in case law, which serves to set court precedent. In the Indian legal system, matters of personal and family law are regulated by legislation at the central government level. Civil judges hear all matrimonial and related cases, and they apply several bodies of family and personal law according to the litigant’s religious affiliation—Hindu (which includes Sikhs, Jains, and Buddhists), Muslim, Christian, Parsi, or Jewish. Couples of different religious backgrounds may choose to opt out of this arrangement by contracting a civil union under the Special Marriage Act, as may couples do who prefer not to marry in a religious ceremony. Such couples must thereby abide by the provisions of this act to regulate any disputes. The vast majority of Muslim couples, however, marry through religious and not civil contracts, which means that the MPL applies in the regulation of their marital disputes.

In order to maintain a say in the interpretation and continuation of the MPL, certain national organizations have been formed for this task. The most prominent of these is the All India Muslim Personal Law Board (AIMPLB), formed in 1973. The AIMPLB is a nongovernmental body created with the goal of representing the family interests of Indian Muslims. It played a prominent role, for instance, in the uproar following the 1985 Indian Supreme Court decision involving Shah Bano Begum. The legal case involved an elderly woman named Shah Bano, who was pressing for expanded financial support from her ex-husband beyond the three months stipulated by Islamic law (and MPL) for a divorcee. Since the Indian legal system requires the application of MPL for adjudicating Muslim marital disputes, the judge’s decision to override Islamic law on the issue of spousal support in favor of Shah Bano caused a strong reaction from bodies like the AIMPLB, who saw this as further encroachment into Muslim religious rights. Eventually the critics of the Supreme Court decision prevailed, and the Muslim Women (Protection of Rights on Divorce) Act (MWA) was passed in 1986. It upholds the payment of maintenance for the three months of the ʿiddah period, and includes a number of other provisions as well. Among these are that any goods given to her by her relatives or husband be returned to her, and that she be allowed to apply for an order directing her adult children or natal relatives for support once the three-month period of spousal support ends.

However, while the MWA could be seen as a victory for groups like AIMPLB, Muslim resistance to the original court decision was seen by other Indian groups as proof of “Muslim misogyny” and ultimately of the lack of Muslim assimilation in the broader Indian nationalist enterprise (since Muslim men were seen as wanting special treatment when it came to cases of divorce). The Shah Bano case became emblematic of the tensions between secular and Muslim groups within India. Similarly, while the existence of informal Islamic legal tribunals (like the Imarat-i Shariʿat in states like Bihar and Orissa, which give “legal verdicts” on cases related to divorce and inheritance brought to them by contending Muslim parties) provide an alternative to the Indian secular legal system, the very existence of these tribunals continues to be a cause of concern for Indian nationalists and secularists.

A lack of unified vision and leadership weakens the Muslim position further still. The AIMPLB may have been successful in making a case on the national level during the Shah Bano case, but ideological disputes internal and external to the organization have led to the formation of other groups claiming to better represent the interests of Indian Muslims. In 2004–2005, due to a few controversial cases involving such issues as the infamous “triple talaq,” new groups formed such as the All India Muslim Personal Law Board (Jadid) (representing Barelwi Sunnis), the All India Shia Personal Law Board, and the All India Women’s Personal Law Board. As one author has stated, “MPL, in effect, has become a platform for ongoing dispute and contestation within Indian Islam itself” (Jones, p. 180).

[See also FYZEE, ASAF ALI ASGHAR, and MARRIAGE and DIVORCE.]

Bibliography

  • Fyzee, Asaf A. A. “Muhammadan Law in India.” Comparative Studies in Society and History 5, no. 4 (1963): 401–415.
  • Jones, Justin. “‘Signs of Churning’: Muslim Personal Law and public contestation in twenty-first century India.” Modern Asian Studies 44, no. 1 (2010): 175–200.
  • Khan, Fareeha. Traditionalist Approaches to Shari‘ah Reform: Mawlana Ashraf ‘Ali Thanawi’s Fatwa on Women’s Right to Divorce. Ph.D. diss., University of Michigan–Ann Arbor, 2008.
  • Kozlowski, Gregory. Muslim Endowments and Society in British India. Cambridge, U.K.: Cambridge University Press, 1985.
  • Masud, Muhammad Khalid, et.al, eds. Dispensing Justice in Islam: Qadis and Their Judgments. Leiden, Netherlands: Brill, 2003.
  • Metcalf, Barbara Daly. Islamic Revival in British India: Deoband, 1860–1900. Princeton, N.J.: Princeton University Press, 1982.
  • Metcalf, Barbara, and Thomas Metcalf. A Concise History of India. Cambridge, U.K.: Cambridge University Press, 2002.
  • Moosa, Ebrahim. “Shari‘at Governance in Colonial and Postcolonial India.” In Islam in South Asia in Practice, edited by Barbara D. Metcalf, pp. 317–325. Princeton, N.J.: Princeton University Press, 2009.
  • Newbigin, Eleanor. “Personal Law and Citizenship in India’s Transition to Independence.” Modern Asian Studies 45, no. 1 (2011): 7–32.
  • Vatuk, Sylvia. “A Rallying Cry for Muslim Personal Law: The Shah Bano Case and Its Aftermath.” In Islam in South Asia in Practice, edited by Barbara D. Metcalf, pp. 352–367. Princeton, N.J.: Princeton University Press, 2009.
  • Zaman, Muhammad Qasim Zaman. The Ulama in Contemporary Islam: Custodians of Change. Princeton, N.J.: Princeton University Press, 2002.
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