By Faizan Mustafa, Mahendra Shukla
The All India Muslim Personal Law Board’s (AIMPLB) proposal to establish sharia courts all over the country could provide fodder to the Hindu right. But we need to ask: When were these courts originally established? Are they really parallel courts? Who goes to them and why? Do they amount to privatisation of justice? Is the death of civil courts a global trend?
Darul Qaza (sharia courts) are not courts in the strictest sense of the term but counselling or arbitration centres. They are accessible, useful, informal and voluntary institutions that provide speedy and inexpensive justice to the poor. The apex court in its landmark judgment in the Vishnu Lochan Madan case (2014) clearly stated that sharia courts are not courts because the Indian legal system does not recognise a parallel judicial system. But the court also refused to deem them unconstitutional.
The decline of the civil justice system is a major phenomenon of our times. In fact, alternative dispute resolution (ADR) mechanisms are the new normal. Most corporates in the US consider a private arbitrator as an attractive alternative to a government-appointed judge. From the 1980s, there has been a “quiet revolution” in dispute settlement in the US. There has been a huge decline in the number of cases that are tried in federal and state courts in the US. All family disputes are mandatorily referred to mediation in the UK as well. The move has rightly been termed as the “economic cleansing of the civil courts”. Governments too favour ADR as it leads to saving public money. Thus in 2008, the UK set up five sharia courts whose rulings are enforceable with the full power of the English judicial system. Israel too enforces the orders of sharia courts as decrees of the state’s civil courts. ADR is privatisation of justice because parties not only nominate their judges but make their own laws or adopt laws of other countries. Monopoly of state laws is thus a thing of the most.
Even in India, most corporate disputes are today resolved through arbitration. Section 89 of the Civil Procedure Code talks of arbitration, mediation and conciliation. The Commercial Courts Ordinance, 2018 that amended the Commercial Courts Act, 2015 provides for mandatory mediation in commercial disputes. The mediation settlement will have the same effect as an arbitral award under the Arbitration and Conciliation Act, 1996. Similarly the Consumer Protection Bill, 2018 also talks of mediation. Most Supreme Court and high court judges take up arbitration work after retirement. Unfortunately, however, these are costly arbitrations, whose sittings are generally held in five star hotels, and many times outside India.
For almost a century or so, judges during the colonial times were assisted by quazis in the discharge of judicial functions. When the Quazis Act of 1880 deprived the quazis of their judicial powers, there were demands to establish sharia courts. But these demands were not conceded. This precipitated private initiatives to establish such courts in the second decade of 20th century in Bihar. The sharia courts of Bihar are widely respected for putting in place elaborate procedures for the determination of issues, systematic recording of testimonies and speaking orders. Some of these orders have been quoted with approval by the formal courts. In Bihar, more than 60,000 cases have been amicably resolved by these courts. The cases were disposed of in less than a year’s time. There has been a steady increase over the decades in the number of cases filed with these sharia courts. Very rarely is a sharia court’s decision challenged in a civil court. Such courts were subsequently established in West Bengal and Orissa.
The sociologist Anindita Chakrabarti has studied Darul Qaza (sharia courts) of Lucknow and Kanpur and found that 95 per cent Muslim women used it out of their free will. These women also use formal civil and criminal courts. Chakrabarti also found that in most cases women went to these courts to get a divorce from their husbands. Sylvia Vatuk of the University of Illinois studied formal family courts in Chennai and Hyderabad and also examined the cases before the quazis in two cities. In her book Marriage And its Discontents, Vatuk argues that most Muslim women prefer to seek the arbitration of quazis rather than formal family courts. Such women are generally the ones who seek divorce from husbands. She found that the state’s family courts had poor infrastructure. Vatuk also found that though Muslims were 8.7 per cent of Chennai’s population in 1991, in no year between 1988 and 1997 did more than 4 per cent of the cases registered in the family courts involve Muslims. She also found that almost all Muslim men in Chennai sought the arbitration of family courts for the restitution of conjugal rights. In Hyderabad, Vatuk examined 1,993 registers of two quazis and found that the majority of cases were initiated by the women who sought divorce from their husbands. There are women-run sharia courts in some parts of India. Even the BMMA runs sharia courts.
In 2017, we studied 74 sharia courts run by the AIMPLB in 15 states. Maharashtra with 23 has the highest number of such courts followed by UP with 22 sharia courts. We also found that more women than men seek the arbitration of these courts. While most men (49 per cent) seek the arbitration of these courts for the restitution of their conjugal rights, a majority of women consult these courts to get divorce (31.9 per cent) or to seek the dissolution of their marriages (27.7 per cent). We also found that these courts never grant triple divorce. They always prefer the Quranic procedure of divorce. We also found that in almost all cases, the quazis ensured the payment of the maintenance money. In 89 per cent cases, we found that the cost of using sharia courts was less than Rs 1000.
Thus there is nothing new in the AIMPLB’s proposal to establish sharia courts. The debate on their proposal should not become a ruse to polarise. About 100 such courts have been functional for decades. These courts provide speedy and inexpensive justice to poor women. No one can be forced to go to such courts. Their orders are not binding and lack legal sanctity. However, it’s perfectly legal if all the parties concerned want to comply with their orders. Unlike the khap panchayats, these courts do not deal with criminal cases and cannot forcibly enforce their orders.
However, each sharia court should ideally have at least one woman. Alternatively, we may have all-woman sharia courts. In fact, all-woman sharia courts are doing wonderful work in Mumbai.
Agha Shahid Ali, the timeless poet
By Aga Syed Amin Musvi
The Kashmiri-American poet, Agha Shahid Ali (1948-2001) published a new poetry collection “Rooms are never finished” in the same year he passed away. This poignant and remarkable work was shortlisted for the America’s coveted 2001 National Council Book award.
The work revels at the highest of the poet’s powers dedicated to his late mother. It is framed by her death from brain cancer in 1997 and the poet’s own battle against the same illness shortly afterwards.
The poem revolves around the nucleus – theme of life and death in exile.
Shahid employed gigantic metaphors and alluring imaginations.
The songs of the poem are dominated by elegiac tone and each serves as the sequence of poems.
The first from Amherst to Kashmir about the poet’s mother and Karbala are contrasted and binds the time into a narrative beyond time.
The second eleven stars over Andalusia of work exceptionally laced with beauty in an adaptation of MehmoodDarvaish’s “Palestine Poet” original about the expulsion of the Moors from 15th century Spain.
‘Rooms are never finished’ is divided into four parts, but in a brief note the author explains that the conflict in war-torn Kashmir forms the backdrop to his collection and was focusing to his previous volume, ‘A country without post office’.
He and his family took his mother to the devastated land for burial as she had longed for her home during her illness.
In America, she had come to Amherst for treatment and died there. His moving poem Lennox Hill plays on the word mother and describes her last days, overlaid with dream like sequence of Kashmir. He writes.
‘As you sit here by me, you’re just like my mother,’
She tells me. I imagine her: a bride in Kashmir,
She’s watching, at the Regal, her first film with Father.
If only I could gather you in my arms, Mother,
I’d save you—now my daughter—from God.
‘Rooms are never finished’
The book goes on to part one 1, from Amherst to Kashmir a sequence which opens with an exquisite prose poem Karbala: A saga – house of sorrows.
He writes and recollects Hazrat Imam Hussain (AS) on the tenth of Muharram (Ashura) is the rite of Shia’s Islam so central at the funerals those events are woven into elegies every death.
Using Karbala as a leitmotif he takes the reader back to AH 61. In elegant sparse and powerful prose, he reconstructs the story and symbolism of Imam Hussain’s (as) sacrifice as well as sufferings of saviours particularly HazratZainab.
Death had turned every day in Kashmir into some family’s Karbala. We observe the Ashura in the afternoon because of night curfew. That evening at home my mother was sudden in tears. I was puzzled then very moved. Since she was girl and felt Zanib’s grief her own. This was indeed the translation of Kashmiri elegy recited at her mother’s funeral Zainab’s lament In Damascus. This finds the profound contrast with Faiz ‘s translation the Rebel Silhouette.
He goes on to give brief glimpse of Begum Akhter when she sings the meditative poem of MirzaGalib in soppy tunes, then he moves to Muharram and the mourning. The revolving themes of mother, Muharram and Kashmir continue to develop subsequent poems. Interjected with frenzy nostalgia, the whole interposed with a medley of cross cultural references. The poet’s personal anguish becomes an expression of deeper universal emotions and mysteries. Furthermore, these poems written in wide range of poetic style and form, which includes a translation of Faiz’s memory which begins”.
Desolation’s desert. I’m here with shadows
of your voice, your lips as mirage, now trembling.
Grass and dust of distance have let this desert bloom with your roses.
Later he translates the famous Galib’sghazals which Begum Akhter sang
Not all only a few
Distinguished as tulips as rose.
What possibilities has the earth forever
Covered what face?
In this collection the mess of exile separation and loss are layered with several levels of meaning both literal and metaphorical and include poet’s eminent farewell to this earth.
The second section of Rooms are never finished consists of poems which look at the world as a place of limbo, in which the poet is but a passenger, passer-by or guest. In the little poem Rooms are never finished about reality and illusions a voice guides the poet somewhere in space and time and goes on saying:
Come to the window: panes plot the earth apart. In the moon’s crush. The cobalt stars Shed light blue-on Russia the Republic’s porcelain,
The Ural’s mezzotint, why are you weeping
Dear friend!? Hush rare guest.
Agha Shahid Ali has explored many different poetic forms, including canzones, sonnets tetra Zima and he has introduced aspects of Marisa Elegy or elements of shikwaDrIqbal’s (RA) poem . There are several of his ghazals in English too, written in remarkable skill, in which the second line of every couplet repeating a phrase employing the new meaning, culminating with the poet’s name often with a lightness of touch a quite mocking and wit.
Part 111 consists of ‘Eleven Stars Overs Andalusia, a breath-taking adaptation of an Arabic poem, by Palestinian writer Muhammad Darwish. In an end note, Agha Shahid Ali explains that he was sent “a very literal version” and asked to “convert it into poetry”. He finally found a way of tackling it, after reading Lorca (Federico García Lorca Spanish poet 1898–1936).
He adds that the Title of Eleven Stars comes from the Quran and is a reference of Joseph’s dream.
About the dream he say 11 stars and the sun and moon prostrate before him. Joseph was told by his father, “Say nothing of this dream to your brothers lest they plot evil against you.”
But Grenada is made of gold,
Of silken words woven with almonds of silver tears.
In the string of a lute
‘Eleven Stars over Andalusia not only depicts the exile and expulsion of the Moors from Spain and their farewell to their enchanted land but cleverly provides an analogy with the homelands of the author and translator Palestine and Kashmir. These poems also convey the poet’s personal lament for the world that he too will leave behind soon. In the fourth Poem ‘’ I’m one of the Kings of the end
He writes ‘’ I’ve passed over this land, there is no land in this land. Since time broke around me, shard by Shard
I was not a lover believing that water is a mirror
As I told my old friend and no love can redeem me,
For I’ve accepted ‘’ the peace accord ‘’ and there is no longer a present left
To let me pass, tomorrow close to yesterday.
The Eleventh and Final poem, Violins begins and ends with the couplet
Violins weep with gypsies going to Andalusia..
Violins weep for Arabs leaving Andalusia. The fourth and last section of this volume consists of a single poem, ‘I Dream I’m at the Ghat of the only world’ a wonderful meditation work with memories of all that is dear to him_ particularly people such as his mother, poet James Merrill, Eqbal Ahmad, Begum Akhter, all of whom have travelled to the other shore ‘’ the central image holding the poem together is Ghulam Muhammad, the waiting boatman who will ferry the poet across the water.
In this exceptional collection, Agha Shahid Ali has brought English language poetry in the sub- Continent to new heights. He has also conveyed the essence, depth and rage of indo-Muslims culture as no other English writer has, in fact South English poetry has probably never seen anything quite like it.
The Poems of Ghani Kashmiri:
By Tahir Ghani
This is probably the first proper collection of English translations of verse by MullaTahirGhani, or Ghani Kashmiri (d. 1669), a Persian poet from Kashmir who lived during Aurangzeb’s time and whose language was respected even in Iran. A poet whose creations, whose idioms, influenced Indian writers even as later as Mir and Ghalib.
The collection comes with a insightful introductory essay by Mufti MudasirFarooqi on Ghani Kashmiri and Persian language in Kashmir.
The book offers translations of Ghazals, Quatrains (Rubaiyat) and a Masnavi.
As one reads through Ghani’s work, one gets to step into Ghani’s world, his joyous exclamations, his saddening doubts, his dejection of the way world works and his playful jokes at the world.
The compilation comes with English transliteration, so you actually get to read the original work as well the translation (a practice that should always be followed for such work. But somehow is seldom followed). The translations try best to retain the meaning of the original, the only problem is for a reader not already familiar with the way Persian poetry works, particularly in case of some Ghazals where the reader can easily forget the central theme of a composition in an attempt at catching the meaning of translation of an idiom.
One of the most interesting work translated in this book is MasnaviShita’iyahoe Winter’s Tale, a graphic and poetic description of Kashmiri winter by Ghani Kashmir that ends with lines:
Hinduyedidamki mast az ‘ishq bud
Dar javaban gift an zunnardar
nistdardastam ‘inan-e ikhtiyar
I saw a Hindu drunk with devotion
‘Such striving to what end?’ I asked.
In reply said that wearer of the sacred thread:
‘The reins of will are not in my hand.
“The Friend has yoked my neck with HIs thread
And pulled me by it wherever He wills.”
There is an interesting famous story given in the book. It is said that when Ghani Kashmiri was invited by Emperor Aurangzeb to his court, the poet snubbed him and refused.
The poet said to Mughal governor Saif Khan, ‘Tell the King that Ghani is insane.’ Saif Khan asked, ‘How can I call a sane man insane?’ At this Ghani tore his shirt and went away like a frenzied man. After three days he died.
What is not given in the book is a probable reason for Ghani’s hesitation at joining the royal court. The explanation for this behaviour may be sought in the story of his master ShaikhMuhsinFani.
“Fani was a court poet of Shahjahan and was greatly honoured by the Emperor. But when Sultan MuradBakhsh [youngest son of Shahjahan] conquered Balkh [in Afghanistan] a copy of Muhsin’sdiwan was found in the library of Nadhr Muhammad Khan [Uzbek, happened in around 1646] the fugitive sovereign of the kingdom which contained panegyrics on him. This detection of duplicity very much enraged Shahjahan who removed him from the court. However the Emperor allowed him a pension. Fani returned to Kashmir and spent his days in instructing and educating youngmen.”*
- From ‘A Descriptive Catalogue of the Hindustani Manuscripts in the Government Oriental Manuscripts Library, Madras’ (1909)
Also, another thing not mentioned in the book is that his old takhallusTahir is Chronograph for the year when Ghani (his later takhallus) started his poetic career.
The Captured Gazelle: The Poems of Ghani Kashmiri
Translated by Mufti MudasirFarooqi and NusratBazaz
Four poets on exile and being refugees
By MananKapoor, Sahapedia
“I have learned and dismantled all the words in order to draw from them a single word: Home,” wrote the exiled Palestinian poet Mahmoud Darwish in “I Belong There”. Exile has long been a recurring metaphor in poetry and, much like love, has resonated across the boundaries of language and time. From the first-century poet Ovid who was banished by the Roman emperor Augustus, to the 19th-century poet-emperor Bahadur Shah Zafar who was exiled to Rangoon (now Myanmar) by the British, poets have often used their verses to talk about their displacement, respond to migration caused by war and politics, and question man-made boundaries.
The 19th and 20th centuries saw the expansion of nation states and the birth of what the Irish political scientist, Benedict Anderson, called “imagined communities”. Numerous mass migrations took place around the world; families were separated and people were left longing for their homelands. The Indian subcontinent witnessed the horrors of the Partition, the migration of Tibetan refugees, the 1971 Bangladesh Liberation War and the exodus of the Kashmiri Pandits. Naturally, many poets from the subcontinent reacted to these tragedies. These poets – some in exile, some in translation and others who witnessed calamity befall their loved ones – shed light on the plight of losing a home and the experience
The 1947 Partition caused the largest human migration in recorded history. Around 15 million people were uprooted, and the Punjab region – a part of which was incorporated into Pakistan – was one the worst-affected areas in the subcontinent. Punjabi poet Amrita Pritam, born in Gujranwala in modern-day Pakistan, became a refugee as a result of the catastrophe. Like millions of others, she moved to New Delhi and, at the age of twenty-eight, penned her iconic poem “AjAkhanWaris Shah Nu” (Today, I Call UponWaris Shah) on a scrap of paper. She wrote:
A million daughters weep today and look at you for solace
Rise o beloved of the aggrieved, just look at your Punjab
Today corpses haunt the woods, Chenab overflows with blood
Someone has blended poison in the five rivers of Punjab
This water now runs through the verdant fields and glades
This fertile land has sprouted poisonous weeds far and near
Seeds of hatred have grown high, bloodshed is everywhere
Translated from the Punjabi by NirupamaDutt
AjjLakhaanDhiyanRondiyan, TenuWaris Shah NuuKain
UthhDard-MandaanDiyaDardiya, UtthTakApna Punjab
Ajj Bailey LashaanBichiyaanTeyLahoo Di Bhari Chenab
Kisey Ne PanjaanPaaniyanWichDitiZaharRala,
IssZarkhaizZameenDey Loon LoonPhuttiyaZahar
Another poet whose voice is considered synonymous with the Partition is Sampooran Singh Kalra, or Gulzar as he’s popularly known. Like Pritam, Gulzar too was born in Pakistan and migrated to India after 1947. The horrors of the event resurface in his writings, be it his heart-wrenching short story “Ravipaar” (“Across the Ravi”) or poems such as “AankhonkoNahiLagta Visa” (“Eyes Don’t Need a Visa”), an ode to Pakistani poet Mehdi Hassan:
Eyes don’t need visas,
dreams have no borders;
With closed eyes
I cross the border, every day,
to meet Mehdi Hasan.
Aankhonko visa nahinlagta
Band aankhon se roz main
Milne Mehdi Hassan se!
But the embers of the fire that started in 1947 burst into flame again in 1971. The Bangladesh Liberation War, which witnessed the dissolution of East Pakistan, left millions homeless and forced thousands of people into exile. The historical event was not only recorded by writers from the Indian subcontinent, but also caught the attention of Western poets such as Allen Ginsberg, who was in India right after the war. In “September on Jessore Road”, he wrote:
Millions of souls nineteen seventy-one
homeless on Jessore Road under grey sun
A million are dead, the million who can
Walk toward Calcutta from East Pakistan
… On Jessore road Mother wept at my knees
Bengali tongue cried mister Please
Identity card torn up on the floor
Husband still waits at the camp office door
Another part of the subcontinent, the Vale of Kashmir, has witnessed a continuous exodus since the late 1980s. Since then, over one lakh Kashmiri Pandits have been forced into exile, becoming refugees in their own country, straining the relationship between Hindus and Muslims. In “I See Kashmir From New Delhi at Midnight”, the Kashmiri-American poet Agha Shahid Ali wrote about the homelessness of the Kashmiri Pandits:
One must wear jewelled ice in plains
To will the distant mountains to glass
In “Farewell”, lamenting the loss of the ‘other’, he wrote:
I’m everything you lost. You won’t forgive me.
My memory keeps getting in the way of your history.
Not too far away from Kashmir, another community was being subjected to life in exile. In 1959, the 14th Dalai Lama, along with millions of Tibetans, fled to India after their homeland was annexed by China. They found temporary shelter in Himachal Pradesh and Uttarakhand, hoping to find a way home in the future. But even today, almost 60 years later, “home” is only a memory for most Tibetans. For others like poet Tenzin Tsundue, who was born in exile, home is a distant dream. In “I am Tired”, he sheds light on what it is like to fight for a home that one has never known:
I am tired,
I am tired selling sweaters on the roadside,
40 years of sitting, waiting in dust and spit.
I am tired,
I am tired fighting for the country
I have never seen.
Admittedly, these poems don’t have the power to alter boundaries or change the course of history. But, to paraphrase Bertolt Brecht, they are what make people sing in dark times.