Reform Colonial Islamic Law To Reflect Modern Realities
By
Grace Mubashir, New Age Islam
2 December
2023
Muslims Should
Come Forward To Reform Islamic Law Which Was Shaped During Colonial Times. While
India Is Moving Away From Its Colonial Legacy, Muslims Should Adequately Reform
To Reflect Modern Realities
Main
Points:
1. By the end
of the nineteenth century, the scope of Islamic law was limited to the private
sphere of the family/individual.
2. In the Shah
Bano case, Rajiv Gandhi's government overturned the Supre Court's decision,
thus squashing an important chance to reform Islamic law according to modern
needs
3. It's high
time for Muslim leadership to think about ways to free away from colonial laws
to modernity.
4. Many Arab
countries and progressive Muslim laws in Muslim countries show the way.
-----
India was
the first Muslim territory conquered by the British. Therefore, the British saw
India as a testing ground for bringing the Muslims under control. Later, it can
be seen that the British implemented the rule in the African-Malayan regions
where the Muslim rule came under the British Empire by following the Indian
model. The East India Company began its rule in the Indian subcontinent through
the Diwani status that the East India Company received after the Plassey War.
Till then the limits of their laws were confined within their forts. With the
grant of Diwani status, taxation and justice in the province of Bengal came
under the purview of the East India Company. The British initially tried to
rely on the legal system of the Mughal era as the power was transferred from
the Mughal dynasty. To that end, the Qadhis, the traditional legal experts who
implemented Islamic law during the Mughal period, were made part of the British
legal system. The East India Company established the legal system by appointing
them as legal officers. Brahmin Pandits were also made part of the new legal
system to receive advice on Hindu law.
The British
did not have to rely directly on Islamic fiqh books to implement Islamic law
because they had traditional Qadis who were well-versed in Islamic
jurisprudence. But gradually the East India Company tried to reduce the
influence of Khadis. This is why the British, who had no Persian or Arabic
base, started translating Islamic Fiqh books into English.
The first
such translation was that of the Hanafi book 'Hidaya'. Written by the
13th-century Hanafi scholar Burhanuddin Marginani, this book was the most
popular book in the Hanafi madhhab in India. Since the British did not have the
Arabic support, the translation was changed from the Persian translation of
Hidayah to English. The Hidayah was a concise exposition of the Islamic civil
and criminal market laws. However, the Hidayah did not deal with inheritance
law. Following this, the British decided to translate another Hanafi book,
Sirajjiya, under William Jones. This process of translation reduced Islamic
jurisprudence from thousands of books to limited books.
Apart from
this, the British collected each case and published it for the reference of the
courts and judges. William Magnaton's first collection of such old cases
(Principles and Precedents of Muhammadan Law) was published in 1824. Stare
decisis (When a court faces a legal argument, if a previous court has ruled on
the same or a closely related issue, then the court will make their decision in
alignment with the previous court's decision) was alien to Islamic
jurisprudence. This was the British common law method. Apart from that, the
British also brought the method of appeal to the higher courts. Under it, the
final word on Islamic law became the Privy Council, headquartered in London.
The likes of Joseph Shacht point out that the resulting new legal system was at
the same time an amalgamation of Islamic English legal thought. Hence the
British called it Anglo-Mohammedan Law.
Initially,
the East India Company Courts also relied on Islamic criminal and commercial
laws as common law. Later, the First Law Commission (1834) chaired by T. B.
Macaulay started discussions on making English laws common law. After the first
independence movement in 1857, British-based common laws began to be widely
imported into India. This was after the British Queen directly took over the
administration of India from the East India Company after the First War of
Independence and initiated radical administrative changes. Indian Criminal
Code, 1862, Indian Transfer Act, 1882, Indian Evidence Act, 1872, Indian
Contract Act, 1872, etc. are in force at present. At the same time, the British
Queen announced in 1858 that the natives would have complete independence in
terms of family/personal laws (Queen Victoria's Proclamation, 1858). The
Queen's proclamation was sacrosanct and inviolable to the British. Hence, by
the end of the nineteenth century, the scope of Islamic law was limited to the
private sphere of the family/individual.
In the
1860s, the British made an effort to interpret personal laws in a broader
sense. The result is the English translation of Niel Beily's Fatawa Alangiri.
The collection of Hanafi fatwas known as Fatwa Alangiri or Fatwa Hind was
compiled by a number of Hanafi scholars during the reign of the Mughal emperor
Aurangzeb at his behest. Only the parts covered by the Nilee Beily personal
rules have been translated into English. It was published under the title
'Digest of Muhammadan Law'. It was during this period that the traditional
experts, the Qadhis, were completely expelled from the judicial system. With
this, the authorship of Islamic personal law was transferred to modernly
trained judges and English translations. "What happens to the Shari’a is
best described not as curtailment but as transmutation. Talal Asad's view that
it is rendered into a subdivision of legal norms (fiqh) that are authorized and
maintained by the centralizing state is confirmed by the history of Islamic
laws in India.
The
influence of British laws was very evident in the Islamic personal laws that
were transferred to British authority. Colonial court judgments therefore often
sided with traditional sources of personal law. The Waqf-ul-Aulad controversy
was a major controversy during the colonial period based on whether modern
courts had complete authority over Islamic personal law. The British Supreme
Court, the Privy Council, ruled that Waqf-ul-Aulad was invalid under
Islamic law and that the Privy Council had the final word on the matter. The
British judge Hob House announced such a verdict in 1893. At the same time,
according to traditional Islamic sources, it was not forbidden to make waqf to
one's own family.
The rule
against perpetuities was against the British market law, which allowed private
individuals to become beneficiaries of the property. Muslims were unwilling to
accept the British Supreme Court's authority on Islamic law. Following this,
Muslims organized large protests in India. The Indian National Congress and the
Muslim League came up with resolutions against the Privy Council.
Ulama such
as Shibli Noumani collected the fatwas of Islamic scholars from around the
world to justify the acceptance of Waqf Aulad. Following this, Muhammad
Ali Jinnah's Waqf Validation Bill was brought in 1911 and in 1913 it was
officially approved. According to this law, the family waqf of Muslims is valid
under Islamic personal law. This was the first codification of Islamic personal
law in Indian history. It was also the first time in the history of the Privy
Council itself that a judgment was overturned. This was seen as a decisive
victory in the political history of the Muslims.
In
post-independence India, the judgment of the Supreme Court in the Shah Banu
case once again raised the question of who the author of Islamic personal law
is. According to the Supreme Court's judgment, the alimony of the divorced
ex-wife is the responsibility of the ex-husband. due to the protest by
misinformed clergy and vested politicians, Rajiv Gandhi's government overturned
the Supreme Court's decision, thus squashing an important chance to reform
Islamic law according to modern needs. Political class always used Islamic law
as a bargaining tool stalling the timely modification of Muslim law.
The fact is
that there is no tendency to impose civil laws in any democratic country in the
world today. There is a tendency in developed countries to allow even
immigrants freedom in their civil laws. Countries that do not have democratic
governments and such civil laws allow citizens and immigrants the right to live
according to their civil laws. History also testifies that even the most
anti-democratic colonial regimes did not encroach on indigenous peoples' civil
liberties. It can be seen that in pre-modern history too, a totally alien
arrangement was to encroach upon the freedom of the civil laws of different
societies. Recognizing this fact, the 21st Law Commission proposed that
personal laws in India are indicators of democracy and there is no need for a
uniform civil code. So, any such attempt in the name of unification has to be
seen as a challenge to human freedom and history itself.
At the same
time, efforts should be made by the Muslim community itself to reform
themselves. while the nation is shedding its colonial legacy, if Islamic law
lags it will be stuck in anachronism. It's high time for Muslim leadership to
think about ways to free away from colonial laws to modernity. Many Arabian
countries and progressive Muslim laws in Muslim countries show the way.
In the
churning times, if Muslims don’t shed social conservatism it will culminate in
disaster. It’s precious to remember that the root cause of Partition was
religious conservatism of Muslims when the global system advanced in terms of
modernity and liberty.
-----
A regular columnist for NewAgeIslam.com, Mubashir
V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance
journalist.
URL: https://newageislam.com/debating-islam/reform-colonial-islamic-law-modern-realities/d/131243
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