New Age Islam
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Current Affairs ( 11 Oct 2009, NewAgeIslam.Com)

Jinnah’s double whammy: Dividing Muslims and getting them stuck with a flawed Shariat Act

Tahir Mahmood

Sep 17, 2009

Jinnah is once again changing the course of Indian politics. Ever since 1947, he has been seen in India as the sole architect of Partition, communal in his outlook through and through. Now political heavyweights from unexpected quarters have ventured to discover his hidden secular credentials, and project him as just one of the co-players of the melodrama that brought about the catastrophe of Partition. The idea that Jinnah alone was not responsible for Partition is neither absolutely baseless nor has it been put forth for the first time. But it is rather incredible that its new supporters have set on this politically volatile voyage with a view to breaking the tradition that persists since 1947 of blaming Muslims exclusively for the six-decade-old calamity. And yet: if anyone thinks that piling encomiums on Jinnah will in any way please the Muslims of India it would be nothing short of an atrocious abomination.

Agreeing to Partition was undoubtedly as much a blunder as demanding it, but this does not in any way reduce the guilt of those who originally propounded the idea — whether as a political strategy, as is now being said, or otherwise. Vociferously advocating the pernicious two-nation theory for years together, Jinnah demanded bifurcation of the country; but no sooner was the country partitioned than he abandoned it through his oft-cited declaration in the new nation’s Constituent Assembly that all citizens of the country would be just citizens and not Hindu or Muslim. This was nothing short of an admission that his advocacy of the two-nation theory was based on political ambition. Who is, then, to be held responsible for the devastating consequences of Partition?

Were not the Muslims of India indeed the worst sufferers? Hindus and Sikhs across the artificially created borders migrated to India en masse, but Muslims had to face a cruel division — parents separated from children, sisters from brothers, and the elderly from the young. And it is the Muslims who have been the biggest victims of ever-changing Indo-Pak relations since, facing on one hand the pangs of separation from family at times of sorrow and joy, and on the other mistrust of their fellow-countrymen even for wishing to do that. The 450 million Muslims of the subcontinent are today torn apart between three different not-too-friendly countries. If they were citizens of a single peaceful country, would they not have been a much greater force to reckon with at home and abroad?


Another gift from Jinnah to India’s Muslims came in 1937. Various judicial regulations from 1872 onwards directed courts to prioritise local customs over religious tenets in deciding family-law cases. These customs were at great variance with Muslim law (in not recognising any female property/ inheritance rights, in putting no limitations on a man’s power to totally disinherit lawful heirs). A bill demanded by community leaders providing that Muslims everywhere be governed by Muslim law was eventually moved in the Central Legislative Assembly. Jinnah, then a member, proposed that individual Muslims be allowed to choose between religious law and local custom. He was trying to protect the interests of zamindars who did not want to give up their absolute freedom to dispose of property. Muslim leaders in the Congress opposed the proposal, so a via media was then thought of: making Muslim law selectively applicable to some subjects only and giving an option to individuals to continue following medieval Indian customs in respect of other family matters. Jinnah’s political stature ensured dissent was stifled and the bill in this mutilated form became law in 1937. Popularly known as the Shariat Act, it remains intact in India till this day — while in Jinnah’s own land it was replaced soon after his demise with a new, un-mutilated act.


As regards Jinnah’s legacy of Partition, everybody in India and many across the border realise that it was indeed a historical blunder. I strongly feel that it is high time efforts were made to reunite the subcontinent. Germany and Yemen have managed a happy reunion. Can the people of the subcontinent — which not too long ago was a single nation united by common bonds of history, geography, religion, language and culture — not tread the same path of sanity? As to Jinnah’s other legacy, unfortunately Muslim religious leaders of the day, always shouting from the rooftop that personal law in its entirety is an inalienable part of their faith, would not let the badly distorted Shariat Act of 1937 be amended so as to remove its anomalies and discriminatory provisions.


So, Jinnah’s dual legacies — the division of the subcontinent’s Muslim families between two (now three) sovereign nations not always on friendly terms and a mutilated Shariat Act which keeps countless Muslims, especially women, divested of their rights under Islam — remain fully intact. Who can expect any Indian Muslim to have a soft spot for the man?


The writer is chairman of Amity University’s Institute of Advanced Legal Studies and a former chairman of the National Commission for Minorities


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