The Indian Constitution has been the outcome of the values which emerged during our freedom struggle. The Constituent Assembly, broadly a representative of India, formulated the Indian Constitution which as a whole is the guide to our national life. The Constitution calls for the establishment of a democratic society based on Liberty, Equality, Fraternity and Social justice.
There was a section of political opinion consisting of mainly conservative Hindus and those arguing that India should become a Hindu nation; who opposed the Constitution right from the start. The views of these leaders of Hindu nationalist politics, supported by a conservative section of society were articulated in an article in Organiser, the RSS mouthpiece, which opposed the Indian Constitution; saying that there is/was nothing Indian about it and that it will not be accepted by Hindus. Savarkar, went on to (CNBC TV18) say that Manusmriti is the Constitution today. In this spirit Swami Avimukteshwaranand recently stated (Navbharat Times) that Manusmriti is “above” the Indian Constitution.
This stream is not the only one within India to undermine the Constitution by showing the primacy of ‘word of God’ or sacred scriptures as above its docrine. Maulana Mufti Shamail Nadwi made a similar statement recently. This Maulana has come to prominence in the last few days after his debate with Javed Akhtar on “Does God exist?”. In a viral clip, he asserts that “Muslims erred by accepting secularism and the supremacy of national institutions over Shariah, criticises democracy and the notion of placing the nation (desh) above religion. He questions whether believers should passively accept court verdicts conflicting with Islamic law. These statements (The Chenab Times), while presented as theological opinions, have been interpreted by critics as undermining India’s constitutional secularism and promoting religious supremacy.”[1]
While Manusmriti is a scriptural compilation representing the values of Brahmanism, the dominant stream within Hinduism, Sharia is based on multiple things. Sharia (Arabic: the path) is the Islamic legal-ethical system derived from:
“Qur’an, Hadith (sayings/actions of Prophet Muhammad), Ijma (consensus of scholars) and Qiyas (analogy)” It guides personal conduct and law, not just punishments. In practice, Sharia is interpreted through schools of jurisprudence (Sunni: Hanafi, Shafi‘i, Maliki, Hanbali; Shia: Ja‘fari), so there is a diversity within the legal system of Sharia.
Out of nearly 55 Muslim majority countries it shapes the laws etc. only in Saudi Arabia, Iran and Afghanistan fully. It is partly i implemented in a few other Muslim majority countries. In India it forms a base in matters of Muslim personal laws only.
So, what does one do with changing times and the social patterns, which have occurred over a period of centuries when these laws were devised? Those indulging in politics in the name of religion in India harp on bringing in the Manusmriti and countries like Iran, Afghanistan and Saudi Arabia are implementing the Sharia in entirety. In many Muslim countries it is not implemented or implemented only in part.
Can Sharia be above the Constitution as the Mufti claims? The legal luminary Faizan Mustafa in a video https://youtu.be/T8BCr27fA24 argues that in every country the Constitution is supreme. The Constitution does consider Sharia in many countries and integrates some aspects of that in the Constitutions.
So, what is the status of democratic institutions in Muslim majority countries? There are different degrees of ‘democracy’ in these countries. At the moment many social media accounts have been criticizing Shamail for encouraging Muslims not to follow the Constitution, as an anti-patriotic act. On the other hand, many are praising the Mufti for upholding the Sharia! It is interesting to note that during the medieval period of Indian History, the Muslim Kings did not make the Sharia law obligatory for the state.
While Mufti Shamail has one opinion there are others like Asghar Ali Engineer, the foremost scholar of Islam in India; who have different idea about the role of Sharia viv a vis the Constitution. Dr. Engineer harps on Shura (Mutual consultation); to argue that democracy and related principles are possible in the contemporary World. Dr. Engineer says a Quranic concept – and modern-day representative democracy – merely a human concept – may not be exactly similar. However, “the spirit of modern democracy and the Qur’anic injunction to consult people is the same”.
As per him “New institutions keep on developing and human beings, depending on their worldly experiences, keep on changing and refining these institutions. And in the contemporary world, the concept of Shura should mean democratic process and constitution of proper democratic institutions of which elections are a necessary requirement.” The Qur’anic text not only gives the concept of Shura (democratic consultation) but “does not support even remotely any concept of dictatorship or authoritarianism”.
During India’s freedom struggle, which was based on democratic principles and aimed at democratic institutions, a very highly regarded Islamic scholar Maulana Abul Kalam Azad and a dedicated Muslim leader Khan Abdl Gaffar Khan (to name but a few) strove for the values and institutions of democratic secular country. Just a few years ago the Muslim women through the Shaheen Baug movement showed their democratic strength in protecting the community from the fear of disenfranchisement.
What is needed in contemporary times? In India as Muslims are being targeted by Hindutva politics, they have become a besieged community. The conservatism among Muslim community is on a sharp rise. The major issue confronting them is enforcement of their rights using the law and its instruments, asserting representation and accountability from modern institutions.
Even in Islam there are various streams of laws and systems of jurisprudence. Since this is part of Sharia, in that case what Sharia recommends will be another contentious issue. Since Muslims are a minority in this country, they already have Personal laws, which are again under opposition.
Today within the extreme Hindu right wing there is a dominant retrograde tendency trying to bring to fore the values of Manusmriti. Such assertions which want to bring inequality in the garb of religion are not welcome. We need to also look to some European countries where religion is on the back foot.
We are living in contradictory times. On one side human society has developed the principles of dignity and equality as represented in the UN charter and on the other religious right-wing has become stronger during the last few decades. While the Mufti may be knowledgeable in concepts of Islam, we also need to know what are the trends of contemporary society and values of democratic institutions.
[1] This controversial debate has been sharply questioned by political observers, funded as it was by the Maulana himself and his Wahyain Foundation (based in Kolkata) and the Delhi based “Academic Dialogue Forum” reportedly associated with social activist Shabnam Hashmi.
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