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 New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism