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Published online by Cambridge University Press: 28 July 2009
Indian muslims have been a large and an active constituent of Indian politics and society for a very long time. Throughout the twentieth century their political endeavours have been directed towards achieving communal autonomy in a plural society. The aspiration to autonomy has been sufficiently strong to unite an otherwise extremely heterogeneous population, divided by language, class, caste and sect. Muslim politics were never monolithic but the dominant tendency was wedded to the cause of autonomy, which entailed a substantial struggle to determine the character and the scope of the state's jurisdiction.
(1) The best treatment of the subject is still to be found in Ambedkar, B.R., Pakistan or Partition of India (Bombay, Thacker and Company Limited, 1945)Google Scholar.
(2) Hardy, Peter, The Muslims of British India (Cambridge, Cambridge University Press, 1972), p. 255CrossRefGoogle Scholar.
(3) Kemal, Rahimuddin, The Concept of Constitutional Law in Islam (Hyderabad, Fase' Brothers, 1955), p. 41Google Scholar.
(4) See Gibb, H.A.R. and Bowen, H., Islamic Society and the West (London, Oxford University Press, 1957), I, Part II, pp. 207–214Google Scholar, for an account of the millet system in Turkey. In India under Muslim rule a weaker form of the millet system was practised in that the state recognised the personal laws of different religious communities. The British introduced system of separate electorates was an application of the millet principle to the representative institution. The British also preserved the separate personal laws of the Hindus and the Muslims, and indeed extended the application of the sharī'a to Muslims who had hitherto followed customary law. In Indian Muslim political discourse the key term was qawm. It stood for ‘community’, not for ‘nation’ (which consisted of qawm). Its later elevation came with the formulation of Mr. Jinnah's famous ‘two-nation’ theory. See Haq, Mush-ul, Muslim Politics in India (Meerut, Meenakshi Prakasham, 1970), pp. 28–33Google Scholar.
(5) The relevant Articles of the Constitution are 25, 26, 29 and 30.
(6) See Husain, S. Abid, The Destiny of Indian Muslims (Bombay, The Asia Publishing House, 1965), p. 163Google Scholar.
(7) The conservative, fundamentalist position is forcefully articulated week after week in the English language weekly Radiance, published from Delhi. The moderate nationalist position was persuasively stated by DrHusain, Abid, op. cit. pp. 174–175Google Scholar. Dr. Husain recommends secularism to Indian Muslims on pragmatic grounds even though ‘the pattern of political secularism [is] not fully in consonance with the Islamic political theory’, and that ‘under the present circumstances in the world and specially in India, there can be no better political organization from the Muslim point of view than a secular state […]’, p. 175.
(8) Though this would not be Dr. Abid Husain's position. For him integration presented an opportunity to Muslims to influence national life in an Islamic way. He writes: ‘[…] if they live as an integral part of the nation and discharge their civic or national duties as sincerely and zealously as they do their religious and communal duties with a conviction that both would lead to the realization of moral values (which are really Islamic values), the dualism in their thinking would disappear and they would regard every act which is meant for the material or moral welfare of God's creatures, whether they are Muslims or non-Muslims, as a religious act’. The Destiny of Indian Muslims, op. cit. p. 161.
(9) The interested reader will find a suecint account of the history of legal development affecting the sharī'a in Mahmood, Tahir, Muslim Personal Law (New Delhi, Vikas Publishing House, 1977)Google Scholar.
(10) See the comprehensive survey of this effort in Derrett, J.D.M., Religion, Law and the State in India (London, Faber and Faber, 1968), pp. 513–554Google Scholar.
(11) See Constituent Assembly Debates, 23rd 11 1948, Vol. 7, pp. 540–552Google Scholar.
(12) Ibid. pp. 540–541.
(13) Ibid. pp. 542–543.
(14) Ibid. p. 544.
(15) Ibid. p. 545.
(16) See Parliament of India (Rajya Sabha), The Adoption of the Children Bill, 1972, Report of the Joint Committee, Rajya Sabha Secretariat, New Delhi, 08, 1976Google Scholar; Memoranda submitted to the Committee, and Evidence, Vols, I, II and III, Rajya Sabha Secretariat, New Delhi, 1976Google Scholar.
(17) See Minnatullah Rahmani, Amir-e-Shariat, Bihar and Orissa, General Secretary, All-India Muslim Personal Law Board, The Adoption of Children Bill, 1972, A Review, Monghyr (Bihar), 1974Google Scholar.
(18) The Adoption of Children Bill, 1972, Report of the Joint Committee, op. cit. p. xGoogle Scholar.
(19) Ibid. p. xiv.
(20) Idem.
(21) See the Fourth Annual Report of the Minorities Commission, 1983, pp. 208–229.
(22) Ibid. pp. 219, 221, 226, 228.
(23) There has been a further controversy on the religious implications of the Adoption Bill between Mr. Justice Beg and the Editor of Radiance S. Ameenul Hasan Rizvi, who quotes the relevant verses of the Quran and cites the appropriate Prophetic traditions in support of the case against adoption by Muslims and exclaims, ‘How can one argue with a Muslim who refuses to bow m submission before the Commands of God and His Prophet?’, Radiance, October 23–29, 1983. See also Radiance, January 1–7, 1984. In a further contribution to the debate on ‘Personal Laws in a Secular State’, Abu Shoab Rizvi has argued that
The personal status assigned to an individual by the court is not by virtue of his religion but by virtue of his belouging to a group or commumnity. When a person declares his religion before the court, by implication he claims membership of a community whose internal structure is based on a particular set of personal laws. The courts administer these laws in deference to the wishes of The community which is sovereign in this field. The community may claim that its laws are a part of, or derived from its religion. But that is an internal matter for the community […] The coummunity is one of the federative units of the state contributing its own law, enjoying a limited sectional jurisdiction and making demands over the judicial and executive organs of the state to implement these laws. Radiance, March 18–24, 1984. This is the clearest statement of the Indo-Muslim version of the millet idea that I have come across. It goes further than the Turkish millet system in that it claims for the communities the right to decide by which laws they will be governed, i.e. they will determine their legal jurisdiction, and the source of law will be the community, while the state will be an administrative agency.
(24) See Watt, W. Montgomery, Muhammad at Medina (Oxford, Clarendon Press, 1956), pp. 238–249Google Scholar, for a careful discussion of the character of the ummā.
(25) See Kemal, Rahimuddin, The Concept of Constitutional Law in Islam, op. cit. p. 41Google Scholar.
(26) Ibid. pp. 19, 20, 43.
(27) Hunter, W. W., The Indian Musalmans (Calcutta, The Comrade Publishers, 1945)Google Scholar.
(28) Among them, Sir Syed Ahmad Khan; the Fatwa of the leading ulamā of north India, dated the 17th July 1870, is reproduced in Hunter, op. cit. Appendix II.
(29) Hakim, Khalifa Abdul, Islamic Ideology 3 (Lahore, The Institute of Islamic Culture, Lahore, 1974), p. 210Google Scholar. Smith, W.C. in his Islam in Modern History (Princeton, Princeton University Press, 1957)Google Scholar had reported Mawlana Hifzur Rahman's thesis statethat ‘the Muslims and non-Muslims have entered upon a mutual contract in India since independence, to establish a secular state […'”, p. 285.
(30) Cited in Smith, D.E., India as a Secular State (Princeton, Princeton University Press, 1963), p. 290CrossRefGoogle Scholar.
(31) The courts have generally upheld minority claims proceeding from this and other Articles of the Constitution bearing upon minority rights. See Seervai, M.M., Constitutional Law of India 2 (Bombay, M.M. Tripathi Private Limited, 1975), Vol. I, pp. 566–634Google Scholar.
(32) See Kabir, Humayun, Minorities in a Democracy (Calcutta, Firma K.L. Mukhopadhyay, 1968)Google Scholar, for a liberal Muslim statement in favour of political pluralism which allows for minorities of all types.
(33) When questioned on the desirability of a common law of adoption for India, Dehlavi, Mufti Md. Zia-ul Haq, proprietor of Jamiat Times (Urdu Weekly, published from Delhi)Google Scholar, asked: ‘Do you want a garden with only one kind of flowers?’. Joint Committee on the Adoption of Children Bill, 1972, Evidence, Vol. I, p. 150Google Scholar. I have come across similar expression elsewhere.
(34) See Stuart, C.X. Villiers, The Gardens of the Great Mughals (London, Adam and Charles Black, 1913)Google Scholar, for a marvellous description of the Islamic gardens in north India, and their religious inspiration.