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Justice more accessible

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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.

 

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Opinion

Embattled Ayodhya’s syncretic past

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By JAVED ANAND

The cover title of the book would suggest that even without turning a page we know what it is all about. Since the late 1980s Ayodhya has been lodged into the consciousness of most Indians as a metaphor for growing discord and bloody violence between Hindus and Muslims because of the as yet unsettled Babri Masjid-Ramjanmabhoomi dispute. Yes, Valay Singh’s Ayodhya: City of Faith, City of Discord is about the smouldering conflict which continues to hover ominously over the entire country.

However, the book is not just about the long pending dispute over a few acres of land, of Hindu-Muslim, mandir-masjid. The meticulously researched text by the journalist unravels for us the fascinating 3,300-year-old history of this “sleepy city” in north India which for centuries had been considered sacred space not only by the followers of Hinduism but Buddhism, Jainism and Islam as well.

 

For example, did you know (I did not) that among the Muslims of the region the significance of Ayodhya is not limited to the Babri Masjid which was demolished by Hindutva’s kar sevaks on December 6, 1992, or the fact that even today several dozen mosques dot the city’s landscape? According to the author, “Ayodhya is called Khurd Mecca (mini-Mecca) or ‘Ayodhya Sharif’ [holy Ayodhya] even now?” (p 145).

Or, did you know (I did not) that Nageshwarnath, the oldest temple in Ayodhya, is dedicated not to Ram but to Shiva, that “as in most of the country, Shiva worship preceded the cult of Ram in Ayodhya as well”? Before the Vaishnavas (Ram bhakts) finally emerged victorious in the 18thcentury, “Vaishnavism had to encounter the violent and bloody obstacle of Shaivaism in north India” (p 59). Singh quotes from the biography of one Devmurari (16th century) to record: “’The daily ritual of Shaivas was to kill four Vaishnavas before doing datoon (brushing teeth)’. And on days when they couldn’t find a Vaishnav to kill the Shaivas would make voodoo-like doll-Vaishnavas out of dough and slit their throats.” (p 60).

In other words, long before the Hindu-Muslim conflict in Ayodhya there was the bloody intra-Hindu feud, not to mention the targeting of Buddhists by Hindus earlier. On the other hand, the eruption of the Babri Masjid dispute — for the first time in 1885 — was preceded by long years of Muslim-Hindu accord and the flourishing of a composite culture (Ganga-Jamuni tehjeeb) while the Muslim nawab-kings ruled in the Awadh region, of which Ayodhya was the capital before being shifted to Faizabad nearby and to Lucknowsubsequently.

Singh quotes Lala Sitaram, the first British-era chronicler of Ayodhya’s history who wrote of Nawab Asif-ud-Daulah’s munificence thus: “He was famous for giving large donations. Thousands of rupees were given to Brahmins from the royal treasury. Ayodhya’s Hanumangarhi [much revered temple dedicated to Lord Hanuman] was built during his time and stands as a testimony to his religious good”. (p89)

The decline of the Mughals and the nawab-kings of Awadh following the arrival of the British in India coincided with the deterioration in Hindu-Muslim relations in Ayodhya. It is a widely held view among historians that, “the first recorded Hindu struggle for Ram’s birthplace dates back to 1855”. That’s when Muslims attacked Hindus in retaliation for alleged demolition of a mosque in Hanumangarhi. (p 98).

The year 1885 marked the birth of the legal dispute over Babri Masjid when Mahant Raghubir Das of the Janmasthan temple filed a civil suit in the court of the district sub-judge of Faizabad, seeking an order to construct a temple over the Ramchabutra, a raised platform abutting the Babri Masjid. It is significant that until then there was no claim that Lord Ram’s birthplace was exactly on the spot where the Babri Masjid itself stood. His plea in the lower court, as also subsequent appeals before the district judge and the judicial commissioner of Oudh were rejected.

Ayodhya is a book in two parts. Book 1 begins with the city’s early history and ends with the ‘Indian Rebellion of 1857’ (many call it India’s first war of Independence from the British). Book 2 spans the period post-Independence till date.

In recent decades, local guides in Ayodhya have confidently asserted before visiting Hindu pilgrims that, one, “It has been nine lakh and fifty-six thousand years since Ram left Ayodhya for heaven, taking his subjects who loved him dearly along with him”; and, two, Babur destroyed the Ram temple that stood at his birthplace in 1526 and built a mosque over the ruins using “the blood of 1,76,000 Hindus to prepare the mud mortar”.

Relying on facts instead of myths, Singh informs us that the Babri Masjid premise itself was proclaimed as the actual birthplace of Lord Ram after an idol of Ramlulla “miraculously” appeared within the mosque premises on the night of 22-23 December 1949. On the morning of December 23, the then District Magistrate of Faizabad, K.K.K. Nair, sent a radio message to UP’s chief minister, chief secretary and home secretary that read: “A few Hindus entered Babri Masjid at night when the masjid was deserted and installed a deity there… Police picket of 15 persons was on duty at night but did not apparently act”. (p 189).

This notwithstanding, thanks to political subterfuge with bureaucratic connivance and failure of the judiciary to intervene expeditiously, from then until 1986 the gates of the Babri Masjid remained locked, Muslims were denied the right to offer namaaz inside, but Hindus were permitted to worship Ramlulla from outside the mosque while his idol remained undisturbed within.

Fast forward to 1984, when the Vishwa Hindu Parishad (VHP) elevated what until then was a local dispute to a national platform with the launch of the Ram Janmabhoomi Mukti Yagna Samiti. Two years later, in 1986, in a brazen instance of pandering simultaneously to Muslim and Hindu communalism, Prime Minister Rajiv Gandhi’s government misguidedly chose to balance its appeasement of Muslims in the Shah Bano case by engineering the opening of the gates of the Babri Masjid for Hindus.

As was only to be expected, before long the Sangh Parivar snatched away the “Ayodhya card” from the Congress and used it to the hilt in its bid to political power. The demolition of the Babri Masjid on December 6, 1992, under the watch of the BJP government led by Kalyan Singh in UP, the Prime Minister Narasimha Rao-led Congress government at the Centre, and a Supreme Court which failed to read the ominous signs, is part of that sordid story.

Missing conspicuously from Singh’s otherwise meticulously researched account is the report of the Liberhan Commission, which is a searing indictment of the insidious role played by the entire BJP/VHP/RSS leadership, the UP state bureaucracy and the police, and Muslim communal leaders in the brinkmanship that took the Indian republic to the abyss in December 1992. Albeit obliquely, Justice Manmohan Singh even questioned the role of the Supreme Court.

A three-member committee headed by a retired judge of the Supreme Court (a Muslim) is currently at work in an attempt at the Supreme Court-mandated effort at mediation to find a resolution to the decades-old dispute. Among the three mediators is Sri Sri Ravi Shankar, who is on record having warned that any obstacle in the building of a Ram temple where the Babri Masjid once stood will only lead to more bloodbath.

There is little in Singh’s book by way of clues to the committee in its effort at solving the complex communal puzzle. But that does not in any away belittle the importance of Singh’s book in unveiling the role of the various institutions of post-Independence “secular India”, the judiciary included, in the unraveling of a Hindu majoritarian agenda, with more than a little help from a communal Muslim leadership.

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Opinion

Kashmir: A land with a rich history is now in turmoil

The Kashmir Monitor

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By INDRANIL BANERJIE

Kashmir’s history, especially its recent past, is viewed by most in the Kashmir valley as one long miserable struggle. Professor Saifuddin Soz, an academic and long-time Congress politician from the valley, is apparently no exception.

Professor Soz in his book argues that Kashmir or, more accurately, the Kashmir Valley, is different from the rest of India because it has its own unique civilisation. He claims “no other region in India possesses such an ancient historical record.”

 

He believes that ever since Independence, the Government of India has wronged Kashmir and this is the reason why the Valley continues to be shaken by an armed uprising. The professor’s Kashmir narrative is not incorrect; New Delhi has indeed often and consistently been obtuse in its dealings with Kashmir. However, the very real and compelling reasons that have often prompted Indian leaders to take hard, and apparently wrong decisions are also not adequately appreciated.

For instance, much is made of former Prime Minister Jawaharlal Nehru’s decision to imprison Kashmir’s most popular political leader, Sheikh Abdullah, in 1953. What are often left unexplained are the reasons behind Nehru’s seemingly undemocratic decision.

The counterview is that Nehru; once a great supporter of Abdullah, felt betrayed after it was known that he was secretly conspiring with the CIA to create an independent Kashmir. The so-called “Kashmir Conspiracy Case” slapped against Abdullah and his collaborators are a fascinating but often glossed over chapter in Kashmir’s slippery history.

In other words, it would be unfair to hold New Delhi responsible for every problem that has beset Kashmir in its recent history. Professor Soz’s narrative fortunately is far from being one-sided and is perhaps one of the best expositions of Kashmir’s history that has emerged in recent times.

Professor Soz is a mild, thoughtful figure who genuinely wishes for the best for Kashmir as well as for India and it is in this context that his work needs to be taken seriously and read carefully.

Especially relevant is the last section of the book where the author offers a roadmap for the future. “I have lived through the years of turmoil in Kashmir, always considering myself to be part of the life of Kashmiris”, writes the author. “I had got elected to the Lok Sabha in a by-election in June 1983 and since then I invested time to understand the life and times of Kashmiris.”

The author lists 10 points that need to be taken up in order to move towards a resolution of the unending crisis in Kashmir. These need to be perused with great care by all those who would like a solution to the problem.

Professor Soz himself maintains: “My dispassionate assessment is that a credible discussion and dialogue without any pre-conditions can be meaningfully initiated by the emissaries of the union of India directly with the Hurriyat. The dialogue and discussion with other political parties and groups could then follow successfully.”
Where one could differ with Professor Soz is in his understanding of Indian nationalism. Professor Soz’s basic assertion that “Kashmir has the unique distinction of being a civilisation on its own” and is one of the oldest in history is unexceptionable. However, it is equally true that India is made up of several civilisations that are equally unique and thousands of years old.

The Tamil, Telugu, Kalinga, Bengali and other civilisations all have histories that go back several millennia. They too have rich, unique cultures with their individual ethos, language and traditions. Being part of India does not require them to submerge or lose their unique identities.

Professor Soz, like many of his ilk, appears to have completely missed the fundamental precept on which Indian nationalism stands. For, the Indian state is not based on civilisational homogeneity but on diversity. Its people have come together to form a single nation state not because they all have the same history or ethos. They have come together because of the belief that diverse people can coexist and prosper irrespective of history, language, religion or culture.

India, like the highly successful nation state, the United States of America, is not based on cultural or racial unity unlike most other nations in the world, which are dominated by one kind of people. Indians do not even look alike; they have varied histories and legends going back many centuries; their diets are unbelievably diverse and so on.

Yet over the decades they have come to live together and despite aberrations learned to celebrate their diversity. Despite all its shortcomings and myriad problems, India has emerged as one of the most successful nations in the world with a quintessentially liberal ethos and open institutions.

The India concept was perhaps best elucidated by Novelist Salman Rushdie, who wrote: “Churchill said India wasn’t a nation, just an ‘abstraction’. John Kenneth Galbraith, more affectionately and more memorably, described it as a ‘functioning anarchy’. Both of them, in my view, underestimated the strength of the India-idea. It may be the most innovative national philosophy to have emerged in the post-colonial period. It deserves to be celebrated because it is an idea that has enemies, within India as well as outside her frontiers, and to celebrate it is also to defend it against its foes.”


Need one say anything more?

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Opinion

Blood-splattered birth of a nation

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By PATRALEKHA CHATTERJEE

But some images remain seared into my memory. Like the famous picture of the surrender of December 16, 1971 which showed General Amir Abdullah Khan Niazi, in charge of the Eastern Command of the Pakistan Army, publicly surrendering to the Indian Army’s Lieutenant Jagjit Singh Aurora. That clip played in every cinema theatre across India. I also have vivid memories of eagerly listening to the savagely witty news updates from Chorompotro (Extreme Letter), a popular underground radio show in Bengali. While Bangladeshi civilians battled Pakistani armed forces, the radio talk show host shared his humorous takes about the discomforts of the Pakistani forces and the victories of Bangladesh’s Mukti Bahini (freedom fighters).

Those childhood memories came back in a flash as I read Nadeem Zaman’s In the Time of the Others. Zaman, who was born in Dhaka, and grew up there and in Chicago, uses the format of fiction to give us the multiple sides of the story and the backstory of Bangladesh’s War of Liberation. This is his first novel.

 

Everyone is familiar with the big story of 1971 – the horrific repression of Bengali citizens in what was then East Pakistan by the military regime in (West) Pakistan, the battle for freedom led by Sheikh Mujibur Rehman and the Awami League, the killings of Bengali civilians, rapes of women and the millions of refugees who poured into India through the eastern border, triggering a military confrontation between India and Pakistan. That blood-soaked, gut-wrenching big story which took such a massive human toll had a happy ending. Bangladesh became an independent nation. And it was among independent India’s most triumphant moments.

Zaman tells the small stories that swirl around that big story.

The novel is a compelling fictionalised account of the lived experiences of a whole galaxy of characters from all sides. The more academically-inclined would perhaps read the book as a treatise on identity and culture, the making of a postcolonial nation state from Bengali nationalism to Bangladeshi sovereignty. To me, the book’s power lies in the many truths it seeks to convey about the monumental, historic event of the Bangladesh Liberation War of 1971 through compelling and nuanced stories.

Zaman’s cast of characters are human beings, not cardboard heroes and villains, with their human frailties, caught in the crossfire of conflict, upheaval and violence.

There is no one central figure. But someone through whose lens the story is largely told is Imtiaz Khan, who arrives at his uncle’s house in Dhaka, for what he imagines will be a short visit to sort out an inheritance issue. It’s a personal matter. But within days of his arrival, the military regime of then West Pakistan declares a crackdown on Dhaka. Civilians are killed in cold blood, and young, feisty fighters from the Mukti Bahini take refuge in the home of Khan’s uncle and aunt. Khan is sucked into the whirlpool of a narrative over which he has little control.

On the other side, there is Faizal Shaukat, a young captain in the Pakistan army, a military man of pedigreed stock, who finds himself conflicted on many occasions, which starts affecting his domestic life. His superior Major Pervez Shahbaz is a more predictable character, cast in a classic, villainous mould.

Interesting though peripheral characters in the novel include Helen and Walter, a journalist couple from the United States who get a ringside view of the momentous events; and Sam Truman, a member of the diplomatic corps.

What really resonated with this reviewer are the internal stories of conflict playing alongside the big story of violence and upheaval.
What does a ‘war’ do to a relationship between husband and wife? A telling example is the conversation between the Pakistan Army captain Fazal Shaukat and his wife Umbreen.

The following passage leapt out. “How many people have you killed, Fazal? Have you raped women? Did you watch your soldiers rape them?” The shoe dropped from his hand. “You are a drunkard and a slut.” Shaukat’s trembling had him spent in seconds. He sank onto the bed. Umbreen’s clenched fist next to his head, inches away. She wanted to ask him how many lowered heads he had looked at in the same position, at his feet, begging for mercy, before sending bullets into them.”

Even Helen and Walter get punchy lines. They spar with each other on whether the Mukti Bahini can be compared to the Vietcong. To Walter, the Vietcong is nothing more than “a bunch of Communist thugs. Murderers.” He is horrified at the suggestion that they have anything similar to the Mukti Bahini. “The Vietcong wants the US out of Vietnam; it is seen as an occupying force and they want them out, the same as here,” quips Helen.

The other interesting character is Suleiman Mubarak, a Bihari judge, who empathises with the Bangladeshi cause but is viewed with suspicion owing to his non-Bengali heritage and is killed by Mukti Bahini soldiers the day Dhaka was liberated.

It’s a sharp contrast to the camaraderie between the Indian and Pakistani military officers, even as Niazi signs the surrender document. Niazi had reportedly refused to lay down arms at the feet of the Mukti Bahini. A decorated officer of the Pakistani Army bowing in defeat to a Bengali guerrilla force was not a humiliation Amir Abdullah Khan Niazi was prepared to take to his grave…” the author writes wryly.

The novel is full of these contrasts — between the loud violence and death on the streets and the minds of the characters caught in a maelstrom.

Zaman’s novel deep-dives into the minds of each of his characters, exploring their motivations and anxieties. But it does not shun the raw violence of the events on the ground.

As the author describes in unsentimental detail the Dhaka University killings, the savageries on ordinary civilians, the torture sites, even a brothel where captured women are kept as sex slaves, the effects on the minds of both perpetrators and victims are finely etched.

The storyline is taut; the plot never flags. I finished the book, 300-plus pages long, in one sitting.

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