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.
The new citizenship bill and the Hinduisation of India
On January 8, India’s lower house of parliament approved a bill that would grant residency and citizenship rights to undocumented non-Muslim immigrants, sparking protests in the country’s northeast. The protests took place mainly in the state of Assam, where millions of people were accused of being foreigners and effectively stripped of their citizenship last year.
The controversial Citizenship (Amendment) Bill 2016, which still needs the approval of the upper house of parliament, seeks to amend the 1955 Citizenship Act to make Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from three Muslim-majority countries – Bangladesh, Pakistan and Afghanistan – eligible for Indian citizenship. This would mean migrants belonging to these religious communities who entered India without the necessary documents prior to 2014 would not be imprisoned or deported and would gain permanent citizenship after six years of residency in India.
The government says the bill aims to provide succour to persons who have been persecuted in their homelands because of their religious identities and who have “nowhere else to go but India”. The proposal assumes persons who identify as Muslim cannot be persecuted in Muslim-dominated countries, and therefore excludes all Muslim immigrants. Hence, members of the Ahmadiya and Shia communities of Pakistan, despite being persistently targeted by extremists, would not be able to seek refuge in India.
The bill has been widely criticised for attempting to make religion an eligibility criterion for Indian citizenship – an act that would fundamentally alter the secular character of India.
Critics have questioned the reasons behind the government’s decision to limit the scope of this bill to migrants from Muslim-majority neighbours of India. Some have argued that the fact that the proposal excludes thousands of undocumented immigrants from Sri Lanka, Nepal and most importantly Myanmar implies that the Indian government is not at all concerned about the persecution of minorities if they are not living in Muslim-majority countries.
Indeed, when members of Myanmar’s Muslim Rohingya minority sought refuge in India after being persecuted in their home country for their religious and ethnic identity, the Indian government did not attempt to provide any legal protection for them. On the contrary, the members of the government perceived these desperate refugees as a threat to India and made attempts to force them out of the country.
In this context, the claim that this bill is a humanitarian gesture aiming to help people in need does not hold. So what is the Indian government’s real motivation for supporting this bill?
The governing Hindu-nationalist Bharatiya Janata Party’s (BJP) main strategist for the northeast, Himanta Biswa Sarma, recently exposed the real purpose of this bill: protecting India’s so-called Hindu identity.
Before the citizenship bill was put to a vote in the lower house of parliament, Sarma, who is also the finance minister of the state of Assam, said, “If this Bill is not passed, then Hindus in Assam will become a minority in just next five years. That will be advantageous to those elements who want Assam to be another Kashmir and a part of the uncertain phase there.”
And soon after the bill was passed, the minister argued that this decision may have prevented Muslims from taking control of Assam’s 17 assembly seats and the Muslim leader of the All India United Democratic Front (AIUDF), Badruddin Ajmal, from becoming the chief minister.
By using the potential electoral success of Muslim Indian citizens, who have every right to contest and hold public positions, as a way to legitimise the citizenship bill, Sarma clearly demonstrated that the purpose of this bill is not to “help” anyone, but to protect and promote Hindu supremacy in India.
Prime Minister Narendra Modi has also previously admitted that the bill is tied to his party’s desire to make India a Hindu nation that prioritises the rights of Hindus irrespective of their citizenship.
During a rally in Assam’s Bengali-Hindu dominated region of Silchar, Modi said that the citizenship bill is an “atonement for the past mistakes of partition”.
Emphasising that he believes blood relations are more important than the “colour of passports”, he promised the region’s Bengali-speaking Hindus that he would make sure that they will be accepted and welcomed by “mother India” by passing this bill.
Today, Assam is at the centre of protests about the proposed amendment to India’s citizenship bill and this public anger has historical roots.
During Bangladesh’s bloody struggle for liberation from Pakistan in the early 1970s, many Bengalis moved to Assam. Over the years, their increasing numbers stirred anxieties among the indigenous Assamese people about the preservation of their distinct culture and ownership of land. As a result, between 1979 and 1985, an “anti-foreigner” agitation – dubbed the “Assam movement”, targeting the Bengali immigrants – erupted in the state.
To end the violence, India’s central government signed the Assam accord with the leaders of the Assam movement in 1985. The accord specified that only people who could prove that either they or their parents had entered or lived in India prior to March 1971 can assume Indian citizenship and legally reside in the state of Assam.
Last year, a new National Register of Citizens (NRC) was prepared in the state to distinguish Indian citizens from undocumented immigrants according to the rules set by the 1985 accord. This list included only 28.9 million of the 32.9 million people residing in the state, rendering nearly four million people stateless.
The decision to denationalise millions of people was widely supported by Assam’s indigenous population, which still fears their culture may be decimated by the influx of “foreigners” and widely criticised by India’s Bengali communities and international observers. The Assamese’s main fear is that Bangla-speaking people from neighbouring Bangladesh, irrespective of their religion, would come to dominate Assam. Hindu and Muslim Assamese are united on this viewpoint and they all want undocumented immigrants to be kicked out of the state.
However, with this new citizenship bill, the BJP government is trying to convince Assamese Hindus that their loyalty should lie not with the indigenous Muslim communities of their state – who speak their language – but with Bengali Hindus. For now, the majority of Assamese Hindus seem not convinced by Hindu nationalist arguments.
The Assam Gana Parishad (AGP), the successor of the Assam movement, has already severed ties with the BJP and expressed its displeasure over the move. The AGP and its allies see in this move an attempt by the BJP to lure as many Hindus from Bangladesh as possible to this region, which, they think, would make it Bengali-dominated and eclipse the local cultures.
The citizenship bill needs to be seen as a part of the BJP’s larger ideological and political agenda to transform India into a “Hindu homeland”. The governing party believes India belongs to Hindus and everyone else are invaders, or at best latecomers, who should expect nothing more than a guest status.
The BJP is clearly using this bill to send a message to the Hindus in other parts of India that under their rule, “Hindus will always come first”.
From the very beginning, the BJP viewed the NRC as way to rid the country of Muslim “foreigners”. Using this citizenship bill, the governing party is trying to make sure no Hindus are harmed by the NRC and their quest to expel Muslims from India can continue without complications.
If this bill gets the approval of the upper house in the coming days, it will not only cause division and conflict in the northeast of India but will significantly contribute to the ongoing Hinduisation of India.
Are they really concerned about India’s poor?
By Alf Gunvald Nilsen
On January 9, the upper house of India’s parliament – the Rajya Sabha – passed a constitutional amendment to lift the cap on reservations in education and public sector jobs from 50 to 60 percent. The next step is for the bill to receive presidential assent, but its fate is still somewhat uncertain, given the possibility that it might not withstand judicial scrutiny and be struck down by the country’s Supreme Court.
What is certain is that this initiative has proven deeply controversial. Opposition parties have criticised its legality, intent, and practicability, while public intellectuals such as Pratap Bhanu Mehta has labelled it cynical politics and cynical policy.
Reservations are what passes for affirmative action in the Indian context, and entail, simply put, a percentage of state and central government jobs and seats in higher educational institutions being reserved for Dalits and other lower caste groups. This form of affirmative action has colonial antecedents, and was written into the constitutional backbone of India’s political system after the coming of independence as a means of improving the condition of groups who were thought to be suffering from social and educational backwardness.
Reservations were initially limited to Dalits (Scheduled Castes) and Adivasis (Scheduled Tribes). However, in the early 1990s, in accordance with the recommendations of the Mandal Committee Report, reservations were expanded to encompass other lower caste groups (Other Backward Classes) as well. In 1992, the Supreme Court imposed the 50 percent cap on reservations, which is currently in the process of being overturned, avowedly to avoid compromising the constitutional principle of equal access.
What is crucial about the constitutional amendment that has now successfully made it through parliament is the fact that it is delinked from caste. The additional 10 percent of reserved jobs and seats in higher educational institutions that is to be introduced by removing the current 50 percent cap is intended to benefit what the Modi government refers to as “economically weaker sections” that do not fall under the categories Scheduled Caste, Scheduled Tribe, or Other Backward Classes – that is, so-called general category poor.
Economically weaker sections are defined as households with an annual family income of less than $11,345 (800,000 rupees) a year, who do not own more than two hectares of agricultural land or a house that is larger than 1,000 square feet.
However, as commentator Ajaz Ashraf has pointed out, upper caste groups are expected to benefit disproportionately from this policy measure, as their high levels of education, as well as their accumulated social capital, will most likely enable them to corner most of the benefits.
This is why Modi’s scheme has come to be scorned as “upper caste reservations” that erase the fact that, in India, affirmative action was introduced specifically to remedy the indignity of caste-based discrimination. In this regard, it is also significant, of course, that the economic criteria for eligibility have been defined in such a way that nearly all Indian households qualify – a fact that, according to Supreme Court lawyer Karuna Nundy, renders the constitutional amendment nothing less than ridiculous.
Modi is making this move in no small part due to an electoral imbroglio that is emerging from his project of authoritarian populism. His electoral success in 2014 was based on the fact that he and the Bharatiya Janata Party (BJP) managed to extend their base of support from the urban upper caste and middle class groups that have been the main supporters of Hindu nationalism in electoral politics to incorporate Other Backward Classes, Dalits, and Adivasis.
From 2016 onwards, this bloc began to crumble. Dalit and lower caste voters began to abandon the party, and Modi was the target of large-scale protests both by Dalits and farmers. Modi has attempted to stem this tide – for example by reversing the Supreme Court’s decision to relax the provisions of laws aimed to prevent violence and atrocities against Dalits – but this seems in turn to have resulted in the alienation of upper caste voters. As the 2019 general elections are looming on the horizon, Modi is now attempting to shore up the support of the BJP’s main vote base.
In doing so, he is appealing to upper caste and middle class groups who resent caste-based reservations due to the profoundly mistaken belief that affirmative action prevents social mobility based on merit. He is also attempting to appease Hindu nationalist hardliners who have recently called for caste-based reservations to be abandoned in favour of reservations based on economic criteria.
“Poverty does not see caste,” argues Desh Ratan Nigam – a leading activist with the Rashtriya Swayamsevak Sang, the BJP’s ideological parent-body – and therefore reservations should be based on economic criteria.
How should progressive forces in India respond to this initiative? A good starting place is to point out that Nigam is as wildly incorrect in his assertion that poverty does not see caste as he was in his ludicrous claim that the Taj Mahal – which was built by the Mughal emperor Shah Jahan – was in fact a Hindu temple.
According to the Oxford Poverty and Development Initiative, 65.8 percent of India’s Dalits, who predominantly earn a living as wage labourers, and 58.3 percent of the country’s lower castes are poor. By contrast, 33 percent of the rest of the Indian population are poor. The fact that poverty in India is structured in this way testifies to the truth of the claim made by Dalit intellectual Anand Teltumbde that “beneath the veneer of a modern developing superpower, India remains a republic of caste.”
Closely linked to this must be the argument that reservations were never intended to be an anti-poverty measure, and that it is therefore disingenuous when the BJP speaks of it as such. However, this point in turn needs to be connected to a progressive critique of the limitations of reservations for the politics of social justice. Again, Anand Teltumbde’s reflections are instructive.
Reservations, he argues in a recent interview, were never about rooting out caste – if that had been the intention, the caste system as such would have been abolished, which it was not. Moreover, the persistence of dramatically low social development indicators among Dalits suggests that reservations have done little to achieve progressive change even on their own terms. Advancing social justice for Dalits, he suggests, has to be linked to a struggle for universal social citizenship, which can grant access to healthcare, education, and secure livelihoods.
This perspective provides a way in which to link struggles against the injustice of caste with the political economy of inequality in India – a political economy that is writ large in the fact that in a country which has grown at an average rate of 7.3 percent since 2007, 57 billionaires own as much wealth as the bottom 70 percent of the country’s population, while at the same time India’s social development indicators are much weaker than those found in far poorer neighbouring countries.
Importantly, that link is already being forged by Dalit activists who couple claims for dignity and recognition with demands for social justice and redistribution, and it is quite possible that it is struggles such as this that can consign the republic of caste to the dust heap of history where it belongs.
Missing leadership in Pakistan
By Miftah Ismail
One of the first things you learn in management is that you can delegate authority but you cannot delegate responsibility. Indeed, the central traits of effective leadership are to motivate your team, led by example and to accept full responsibility for any failure.
A great trait of Imran Khan as cricket captain was his ability to lead from the front. He was able to take wickets when partnerships threatened and anchor the innings when collapses were imminent. He not only made things happen but took responsibility for his and his team’s failures.
Prime Minister Imran Khan, although often called ‘Kaptaan’, has yet to show anything close to his leadership traits as a cricket captain. Not only is he not able to lead by example or motivate his team, he is especially averse to taking responsibility for the failures of his government.
This is the reason there seems to be so much infighting within his team, and his players are neither willing to work hard nor exhibit discipline and nor certainly willing to accept responsibility.
Take the example of the recent devaluation of the rupee, after which the prime minister said he wasn’t informed, the governor of the State Bank (a man with an unblemished record of integrity and probity) said that he did inform the finance minister and the finance minister too said he did inform the prime minister. The rupee went down by about eight to ten percent, came back up by seven to eight percent a day or so later, there was great turmoil in the currency markets, and to this day we don’t know who first decided to devalue the rupee, who then decided to appreciate the rupee and who was responsible for the whole turmoil. No one led from the front.
Then there is the urban legend of Pakistanis having $200 billion in Swiss bank accounts. When the myth started, it was just Pakistanis having this money in the bank. But then over time in the speeches of Imran Khan and other PTI leaders the myth gained momentum. It became money that was illegally sent abroad by Pakistanis. It then became money that was even illicitly earned by Pakistanis. And finally it became illicitly-earned, laundered money of (non-PTI) Pakistani politicians.
According to PTI leaders, PM Imran Khan was going to bring back the money in no time and in the words of Imran Khan himself this would result in a ten-year tax holiday, reduction in prices, creation of jobs, etc, etc. However, it took only a week into the new government for the myth to be laid to rest.
No one took responsibility for this incessantly repeated falsity and no one ever expressed regret over misleading the nation. The finance minister kicked the ball down to the accountability adviser who then kicked the ball further down the field.
(For all our expert financial and media experts who had been baying for the blood of politicians over the $200 billion, here’s a reality check. It is inconceivable that from a poor country like Pakistan where there aren’t even a dozen private jets there would be even a thousand accounts in Swiss banks. For there to be $200 billion held by Pakistanis, there would need to be an average of $200 million cash holding in each account. Not even billionaires, of which there are no more than ten in Pakistan, have this much money in cash. This myth would have died a death under the burden of its own implausibility had someone spent perhaps ten minutes thinking about this preposterous claim).
All of this brings me to the completely avoidable electricity loadshedding coupled with the massive gas shortages going on all over the country. I wrote about this last week in this space, saying that the crucial mistake was the government not procuring enough LNG to run all the available gas-fired plants.
This much is now apparent even to our ‘tabdeeli sarkar’. They first stopped the import of furnace oil (something our PML-N government had done last year but which for some inexplicable reason was restarted after we left). They are now scurrying about trying to import more LNG. Fortunately, both these are steps in the right direction.
But no one in the ‘tabdeeli sarkar’ is willing to accept responsibility for their failure and for causing the country perhaps a billion rupee per day extra loss due to using wasteful furnace oil plants and closing down factories.
First, the government set up a committee to find out if the MDs of Sui Southern and Sui Northern were responsible for not ordering LNG and causing gas and power shortages. This committee was headed by the Ogra chairperson, a woman who understands the gas sector as well as anyone else in the government. The committee exonerated the two MDs and explained, among other things, why the import of furnace oil had caused a decrease in the production of domestic gas.
The government was not happy with the report as it didn’t recommend what it wanted. So another report was ordered, this time under the petroleum secretary, the top bureaucrat in the sector. He too wrote a report largely exonerating the two MDs and blaming a lack of coordination among the ministries as the prime reason for not ordering enough LNG. But, perhaps understanding the mood of the government and the temperament of his own minister, he recommended that the MDs may be issued a warning to perform better and that there should be improved coordination between the power and petroleum ministries.
Winter loadshedding, however, is an embarrassing failure of the PTI government – and neither the prime minister nor his ministers are willing to accept the blame. So someone had to be made the scapegoat. Both the MDs were fired, even though neither report had recommended it.
When the petroleum minister was asked about the shortage he blamed – well, obviously – the previous PML-N government. When it was pointed out that the PML-N had left seven months ago, and that it had set up the infrastructure for the import and regasification of LNG, for transportation of gas and also sufficient power plants, he then egregiously blamed the two MDs. Yet from him not one word of contrition, much less an apology.
The power minister, however, had the grace to express regret that people are suffering from these power outages.
Sadly, however, no minister or the prime minister is taking responsibility for the great hardship caused to the people and the huge loss faced by the government and the economy.
And what does this say about the Kaptaan’s leadership? As an opposition member, I have always believed that PM Khan didn’t understand the complexities of governance, that he was too tolerant of his party’s shortcomings and that his unshakable belief about the PML-N being corrupt was not just self-serving but also plainly wrong.
However, like much of the nation, I always thought he would be a strong and decisive prime minister. Unfortunately, it is now becoming patently obvious that he’s not really the Imran Khan of the 1992 World Cup but more like a journeyman cricketer happy to keep his place at the top.