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Not by ordinance

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By Rajeev Dhavan

There is a clamour by the Rashtriya Swayamsevak Sangh (RSS) and Sangh Parivar for an ordinance and later a statute (i.e. Act) for building a Ram temple over the ruins of the Babri Masjid in Ayodhya immediately. No more waiting, they say. The supposedly neutral Justice J. Chelameswar, who retired as a Supreme Court judge earlier this year, joined the fray, saying it was possible. The ex-justice is learned and bold, but needed to show the downside.

Any ordinance would have to be passed by the Central government if the President (as advised by Prime Minister Narendra Modi’s cabinet) “is satisfied that circumstances exist which render it necessary for him to take immediate action” to promulgate such an ordinance, which will cease if it is negated or lapses. If it lapses, re-promulgation can take place. Repeated re-publication was frowned upon in the D.C. Wadhwa case (1986).

 

Again, by brute strength an Act may be passed amidst upheavals and rancour throughout India. But can the Central government as statutory receiver pass such an ordinance or even table a Bill in Parliament? There is an immediate conflict of interest. The alternative is a Private Member’s Bill. Given the conflict of interest, the Central government is obliged to oppose it, albeit with a three-line whip. The State of Uttar Pradesh is bound by its stance in the Allahabad High Court that it is not interested in the site.

Even if passed, any such statute would have to cross many hurdles. First, there is the Places of Worship (Special Provisions) Act of 1991. In this Act, the cut-off date for freezing the religious character of a place of worship is August 15, 1947 and all suits regarding their status would abate. Section 6 prescribes punishment of up to three years or fine or both if this is violated. But Section 5 of the Act said: “Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.” This, however, does not pave the way for simply repealing the section, for that would give further protection to the Muslim case.

Second, we have to turn to the Acquisition of Certain Area at Ayodhya Act, 1993, which acquired the site to put an end to the litigation, and vested the property in Central government.

Third, the Act of 1993 was interpreted in Ismail Faruqui v. Union of India (1994) so that the property would remain with the Central government as a “statutory receiver”, a concept invented by the court. The cessation or abatement of the pending Ayodhya case between the Muslims and Hindus (Section 4(3)) was set aside by the Supreme Court while unfairly allowing Hindu worship. The court declared: “The best solution in the circumstances, on revival of suits is, therefore, to maintain status quo as on 7th January, 1993 when the law came into force.” Any action taken now (i.e. 2018 onwards) would violate this status quo. As the “statutory receiver”, the Central government has the responsibility to wait for the result of the suit. No ordinance or statute can sit in appeal on the Ismail Faruqui judgment of 1994.

There is a well-known principle, emanating from the doctrine of separation of powers in the Constitution, that the legislative power of Parliament cannot usurp the judicial power to sit in appeal over the judicial decision-making – still less where the case is pending as a suit or in appeal. This decision, which was considered earlier, was firmed up on a tax case — Shri Prithvi Cotton Mills (1969) — after which there have been dozens of cases going one way or the other. But the legislature can change the basis of the law. It’s more complicated than you think. What will a proposed Act or ordinance say? Can it say that this first appeal to the Supreme Court under the Code of Civil Procedure will be taken away? The right to adjudicate cannot be taken away as it would be discriminatory if applied to a particular case to take away a valuable right. The new basis for the law would have to invalidate the Allahabad High Court judgment of 2010, Ismail Faruqui (1994) and the orders subsequent to it and then injunct the pending proceedings in the Supreme Court. The justification for this can only be that strident members of the Hindu majority are impatient to reverse the Allahabad decision which gives one-third of the land to the Muslims. There is also a resistance by the Nirmohi Akhara, which claims the entire site and does not want to give the Deity its one-third.

As soon as the ordinance or Act is passed, it will be challenged in the Supreme Court because it is of national importance and affects the jurisdiction of the Supreme Court. True, there is a presumption of the constitutional validity of a statute. Even if no stay is granted, the urgency of the matter may mean an assurance sought by the court that no precipitous steps would be taken during these new proceedings. There will be counter-clamour, protests, news that India favours Hindus over Muslims. Throughout the world the destruction of the Babri Masjid has provoked doubts on the capacity of India to be neutral. India has one of the largest Muslim populations in the world — short of 200 million. The case against the constitutionality of the new ordinance or Act will take some time to decide. The decision in the Ayodhya case will be delayed further.

There is only one part of Justice J.S. Verma’s majority in Ismail Faruqui (1994) that I like. He begins by quoting Jonathan Swift: “We have enough religion to make us hate, but not enough to make us love one another.”

With the rise of an uncompromising fundamentalism, India is faced with extreme populist demands against minorities and the rule of law. The Constitution is secular, but parts of civil society are rabidly communal. The demand for the state to intervene to allow the Ram temple is part of an aggressive Hindu fundamentalism which seeks to suborn the state to its wishes. The state has to remain neutral. To yield to a demand of one faith against another not only condones the destruction of the Masjid, but abandons the very basis of India’s multi-religious and cultural ethos which it is bound to protect. It is the Constitution that has pledged our diverse people together. It is not a plaything – still less in the hands of a motivated majoritarianism that puts ‘India’ to ransom. Muslim fundamentalism is allegedly terrorists, its violent elements banned. Hindu fundamentalism reigns free with its Hindutva, “ghar wapsi”, cow protection, violence, murders of activists and the Ram temple movement seeking immediate solution.

(The Hindu)


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Opinion

The philosophy of sacred pilgrimage

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By Haji Mohammad Salah

Hajj literally means ‘heading to a place’. In Islamic terminology, however, it refers to the obligatory annual pilgrimage that Muslims make to Mecca with the intention of performing certain religious rites following the method prescribed by Prophet Muhammad.

In essence, Hajj is man’s evolution toward Allah. It is a social worship which creates a relationship between God and His creatures and has different effects on the Islamic society. The performance of Hajj simultaneously signifies many things; it is a show of history, the Islamic doctrine and that of the Islamic unity and brotherhood. Hajj reinforces the religion, i.e., it makes millions of Muslims gather in Ihram; this gathering strengthens the relationship between the followers of Islam and makes their hearts grow closer.

 

The history of Hajj rituals goes back to the time of Prophet Adam, who was first entrusted by Allah to build the Kaaba, the House of Allah. He and his descendants were the first people to perform Hajj rites. The rites continued up until the time of Prophet Abraham who was ordered by God to rebuild Kaaba along with his son Ishmael:“When we settled for Abraham the site of the House [saying], Do not ascribe any partners to Me, and purify My House for those who go around it, and those who stand [in it for prayer], and those who bow and prostrate” (22:26).

After building the Kaaba, Prophet Abraham would perform Hajj every year, and this practice was continued by his son after his death. However, gradually with the passage of time, both the form and the goal of the Hajj rites were changed. Kaaba had turned into a place of idolatry, and the people had totally abandoned the teachings of their leader, Prophet Abraham until the time came for his supplication to be answered:“Our Lord, raise amongst them an apostle from among them, who should recite to them Your signs, and teach them the Book and wisdom, and purify them. Indeed You are the All-mighty, the All-wise” (2:129).

After a long time a man by the name of Muhammad ibn ‘Abdullaah was born in the very city that Prophet Abraham had made this supplication. For twenty-three years, Prophet Muhammad spread the message of monotheism (Tawhid) – the same message that Prophet Abraham and all the other Prophets carried – the most important message of Hajj.

Not only did Prophet Muhammad purify the Kaaba from idols and all the defilements, but he also reinstated all the rites of Hajj and banned all indecent and shameful acts. Consequently, Kaaba became the universal center for the Muslim worshippers of the only true God, once again.

Annually, Muslims from all over the world are encouraged to participate in this great “pilgrimage” (Hajj). Everyone is considered equal. There is no discrimination on the basis of people’s race, sex, or social status.

There are secrets about Hajj exoteric rituals that are somehow beyond man’s understanding and so not easy for everyone to learn. Some steps of the Hajj rites are reminiscent of the events associated with Abraham, Ishmael and his mother Hagar, and personify their self-sacrifice, altruism and struggle with Satan in the path of Allah. This would help us understand the philosophy behind some of the acts performed in Hajj.

The performance of Hajj begins at Miqat, a place where pilgrims should wear Ihram and from there go for Hajj or Umrah. Donning such unsewn white garments entirely distances man from material ostentations and engrosses him in a world of purity and spirituality. Clothes show individuality and distinction.

They create superficial barriers that separate man from man. The garments of Ihram, however, are the antithesis of that individualism. You join a mass and become nothing but a drop of water in an ocean that has no special identity of its own. Ihram clothing is also a reminder of shrouds which every human has to wear after death. This helps you assume your original shape as a man, just one of the “descendants of Adam” who will die one day.

Hajj is a movement that reminds us of our journey to Allah; “toward Allah is the destination” (24:42). In the state of Muhrim, There is no sex, no perfume, no shoes, no sewn clothes and head covers for men, no face mask, no cutting of hair or nails, i.e., absolutely no signs of aristocracy or distinction; you don’t even look in a mirror to see your own image.

You don’t hunt any animal; you don’t uproot any plant. So you kill the tendencies of aggression by being peaceful to nature, and this continues until you perform all the rituals and come out of Ihram. All your selfish egos must be buried at Miqat. You witness your own body just like what it looks after death when it is being buried. By sacrificing your individuality, you focus on reality, the basic purpose for which you have been created – that is devoting yourself totally to Allah.

Positioned in the center, Kaaba is like a sun while the people are like stars traveling in their orbit of the solar system. Kaaba symbolizes the constancy and eternity of Allah. The moving circle of people represents the continuous activity and transition of His creatures.

This rite is actually the manifestation of Tawhid, the Oneness of God. The heart and soul of the pilgrim should move around Kaaba, the symbol of the House of Allah, in a way that no worldly attraction distracts him from this path. Only Tawhid should attract him. Tawaf also represents Muslims’ unity. During Tawaf, everyone encircles Kaaba collectively.

There is no individual identification of men or women, black or white, red or yellow. The movement has transformed one ‘person’ into the totality of ‘people’ establishing the universality of Islamic community with the goal of approaching Allah. Likewise, you must reject self-centeredness and step in the way of Allah, which is the way of people. In other words, to approach Allah, you must first genuinely become involved in people’s problems. This is how you are with the people and where you may approach Allah.

After Tawaf, you have to perform two rak’at of prayer behind Maqam-e Ibrahim [ii] (Abraham’s place of standing), which is a very blessed place for praying. It is the nearest point to Allah. As a matter of fact, there is nowhere on earth where you get more reward than this place for praying. The stone has the footprint of Abraham. He stood over this stone to lay the cornerstone (Hajar al-Aswad), to reconstruct Kaaba and to pray. By standing on the same stone, you vow to become like Abraham, the upright friend of Allah, who was uncompromising in his conviction of Tawhid.

Sa’y literally means to strive, to make an effort to reach an aim. Running between the mountains – Safa and Marwa – seven times, you act like Hagar, the mother of infant Ishmael. After Abraham left her and their son, near the valley of Mecca, Hagar had no food, no water, no shelter, neither for herself nor her child, but only uncompromising, relentless faith that the God of Abraham will not leave her and her son without sustenance.

She started looking out for water, running to the top of the mountains, Safa and Marwa. But she did not find any water. She searched again and again. After running seven times between these two mountains, she came down from Marwa to check on her infant son when she heard the sound of gushing water coming from the sand he had dug under his heels. It was Zam-Zam, a sweet and life-giving fountain of water which was a gift from Allah to the mother and son, and all those who came later. So Sa’y is a physical work. It is a struggle to satisfy your needs, and a way to achieve a better life.

The name Arafat means acquaintance or cognition. There are a few beliefs for why this place has been given this name; in one of the most famous of which, it is held that Prophet Adam and his wife Eve met each other at this plain after they were separated for many years.

It was the devil (Iblis) who misled our forefather -Adam- by telling him to eat from the tree of eternity and possession and caused them to descend from Paradise. They met in Arafat once again, where they became acquainted with one another and with their sins. They made supplications to God and sought His forgiveness. It was in the center of this plain where they were forgiven by Allah. In short, Arafat represents the beginning of man’s creation, that of our forefather Adam. Here you act like Adam or Eve and seek forgiveness for yourself and your loved ones.

Pilgrims of Hajj, returning from Arafat, spend the night between the 9th and 10th of Dhu al-Hijjah at Muzdalifah in the open air. It is here they gather pebbles to hurl at the pillars of Mina (Jamarat). The shortstop at Mash’ar may remind you of your short life on this earth! That you are only a moment of this eternal time. It is for you to think, to plan, to strengthen your spirit, to prepare yourself for the battlefield to fight with the devil. The verse below best describes the philosophy behind the stop at Mash’ar:“Then when you stream out of Arafat remember Allah at the Holy Mash’ar, and remember Him as He has guided you, and earlier you were indeed among the astray” (2: 198).

At Mina, the longest and last pause occurs. Millions of freedom-fighters who refuse to obey any power except Allah crowd here.

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For those who could not make it to Hajj

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By Majd Arbil

The Pilgrimage to Makkah, is one of the essential elements of the Islamic faith. It is obligatory on all believers provided they have the financial capability and physical ability to endure the challenges of the pilgrimage.

According to Islamic tradition the Kaaba, a simple square cube structure in Makkah, was the first house of worship established to remind humanity of the One Supreme God. The structure was reconstructed by Prophet Abraham and his son Prophet Ishmael.

 

And when We made the House (at Makkah) a destination for humankind and a sanctuary, (saying): Take as your place of worship the place where Abraham stood (to pray). And We imposed a duty upon Abraham and Ishmael, (saying): Purify My house for those who go around and those who meditate therein and those who bow down and prostrate themselves (in worship). Quran 2:125

The gathering of millions of faithful in Makkah during the days of annual pilgrimage, Hajj is a fulfillment of Prophet Abram’s prayer.

The Pilgrimage to Mecca is a sign of supreme significance. It was Prophet Abraham’s unconditional commitment to God that led him to leave his wife Hagar and his infant son Ishmael in this desolated desert. Prophet Abraham was reward for his unwavering submission to God, by a promise from Him to make this uninviting land into a place of promise and plenty.

Like any other article of faith, the pilgrimage can become meaningless if it is regarded as an end in itself rather than a means for the attainment of a meaningful life.

The following story reminds us of the spirit of Hajj.

The Cobbler’s Hajj

It is related that a noted Muslim scholar Abdullah bin Mubarak, had a dream while he was sleeping near the Kaaba.

Abdullah bin Mubarak saw two angels’ descend from the sky, and start talking to each other.

One of the angels asked the other: “Do you know how many people have come for Hajj this year?”

The other angel replied: “Six hundred thousand have come for Hajj.”

Abdullah bin Mubarak had also gone for Hajj that year.

The first angel asked: “How many people’s Hajj has been accepted?”

The second replied: “I wonder if anyone’s Hajj has been accepted at all.”

Abdullah bin Mubarak was grieved to hear that. He thought, “So many people have come from all over the world, crossing so many obstacles like rivers, jungles, mountains, suffered so many hardships, and meeting so many expenses. Would their effort be wasted? Allah does not let anyone’s effort go to waste”.

He had thought only so far when he heard the other angel speak: “There is a cobbler in Damascus. His name is Ali bin al-Mufiq. He could not come for Hajj, but Allah has accepted his intention of Hajj. Not only will he get the reward for Hajj, but because of him, all the Hajjis will be rewarded.

When Abdullah bin Mubarak woke up, he decided he would go to Damascus and meet that cobbler whose Hajj intentions carried such a lot of weight.

On reaching Damascus, Abdullah bin Mubarak inquired if anyone knew a cobbler named Ali bin al-Mufiq. The town people directed him to a house. When a man appeared from the house Abdullah bin Mubarak greeted him and asked his name. The man replied “Ali bin al-Mufiq”.

Abdullah bin Mubarak asked: “What do you do for a living?”

Ali replied: “I am a cobbler”. Then Ali asked the stranger’s name that had come looking for him.

Abdullah bin Mubarak was a very well-known scholar of Islam, when Abdullah bin Mubarak introduced himself, the cobbler was anxious to find out why such a well known scholar was seeking him out.

When Abdullah bin Mubarak asked Ali to tell him if he had made any plans to go for Hajj. Ali replied “For thirty years I have lived in the hope of performing the Hajj. This year I had saved enough to go for Hajj, but Allah did not will it, so I couldn’t make my intention translate into action.

Abdullah bin Mubarak was eager to find out how could this man’s Hajj be accepted and blessed for all the people who went for Hajj that year when he didn’t go for Hajj in the first place. While talking to the cobbler he could feel a certain purity in his heart. Islam regards greatness not in wealth or in power, but in civility, in good manners and the goodness of heart.

Abdullah bin Mubarak further asked: “why could you not go on Hajj?”. In order not to disclose the reason, Ali again replied “it was Allah’s will”.

When Abdullah bin Mubarak persisted, Ali revealed: “Once I went to see my neighbor’s house. His family was just sitting down for dinner. Although I was not hungry I thought my neighbor would invite me to sit down for dinner out of courtesy but I could see that my neighbor was grieved about something and wanted to avoid inviting me for dinner.

After some hesitation the neighbor told me: “I am sorry I cannot invite you for food. We were without food for three days and I could not bear to see the pain of hunger of my children. I went out looking for food today and found a dead donkey. In my desperation I cut out some meat from the dead animal, and brought it home so that my wife could cook this meat. It is halal (lawful or permitted) for us because of our extreme condition of hunger, but I cannot offer it to you.”

Ali continued: “On hearing this, my heart bled with tears. I got up and went home, collected the three thousand dinars I had saved for Hajj, and gave my neighbor the money. I too had to go hungry but that was to save money for Hajj, but I thought helping my neighbor during his difficult times was more important. Although I still desire to go for Hajj if Allah wills.”

Abdullah bin Mubarak was greatly inspired by the cobbler’s story and told the cobbler of his dream.

God is merciful and shows mercy to those who do likewise to his creatures. This act of compassion on the part of the cobbler was so pleasing to God that it not only earned him the reward of Hajj but was extended to all the people who came for Hajj.

Hajj is a journey that can ignite the soul to be reminded of the time it was created and takes it beyond the dimensions of this life to the time it will meet the creator.

The sincere performance of Hajj can transcend a person’s day to day life into a spiritual awakening of the highest magnitude. A successful Hajj experience connects us to our creator and the greater compassion of humanity.

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Imran Khan’s ‘New Pakistan’ Is as Good as the Old

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By Mohammed Hanif

Imran Khan campaigned to become prime minister on the promise that he would create a “new Pakistan.” The country was going to be like the state of Medina that the Prophet Muhammad founded — a welfare state — Khan promised. Less than a year after coming to power, he has delivered a new Pakistan, and it looks like a struggling dictatorship.

Major opposition leaders are in jail; others aren’t allowed in the media. Parliamentarians are arrested on terrorism or drug-trafficking charges and denied bail. In this new Pakistan, the economy has been practically handed over to appointees from the International Monetary Fund. The price of bread is soaring, and bazaars where the poor do business with the poor are being demolished while barons of the stock exchange get government handouts.

 

Khan once talked about “dignity” and how you lose it when you take money from foreign powers. But what was one of his first moves after taking office? Chauffeuring Arab princes in the hope of getting soft loans.

He has said that he would prefer death to going to the I.M.F., but soon after becoming prime minister he went into a huddle with the I.M.F. chief and after protracted negotiations secured a loan of $6 billion.

During election campaigns, politicians usually make promises that they have no intention and no way of keeping. Here is one promise that Khan is trying to keep: To punish corrupt politicians and force them to pay back the money they have stolen — the billions, he says, that have been stashed in Swiss banks. By now, though, it’s quite obvious that even if there is looted money in foreign banks, there is no way of bringing it back. Former President Asif Ali Zardari, who is in jail on money-laundering charges, was asked if he was willing to strike a deal with the government. “I will not give them six dollars,” he smirked.

Since the corrupt aren’t going to cough up their loot, Khan has had to go back to the mundane business of borrowing money and collecting taxes. But his passionate appeals that more Pakistanis pay their taxes don’t seem to be working. The tax-to-gross domestic product ratio is the lowest in five years, the tax authorities said recently. Maybe that’s because the people have seen too many of their leaders not pay what they owe. Although Khan’s assets were estimated at 3.8 billion rupees (about $36 million) in 2017, he pays fewer taxes than many mid-ranking journalists.

Khan used to claim that he is the best team-builder around. He has surrounded himself with the same political carpetbaggers he once railed against. More than half of his cabinet served the last military dictator, Pervez Musharraf. Of the man who now runs the railways ministry, Khan once said that he wouldn’t hire him as a peon; another person he called a bandit has become a crucial ally, as the speaker of the assembly in Punjab Province.

When he lectures on economic matters, Khan can sound like the Queen of England — as though he has never had to carry cash or set a monthly budget like middle-class citizens do. Like many affluent people who spend their lives in a bubble of financial security, he has been propagating Ayn Rand-esque myths about how to fix the economy. He has been saying that the one percent of Pakistanis who do pay taxes can’t carry the burden of the other 99 percent. Yet the 99 percent who don’t fill out returns definitely are funding the lifestyles of rich Pakistanis through indirect taxes, like those on gasoline and electricity. And yet they hardly get to see the inside of a hospital or the schools built with those taxes.

As Khan’s opponents question some of his statements, and his credentials, he has become more and more prickly. After Khan was called a “selected,” rather than elected, prime minister in Parliament, the speaker banned the use of the word “selected” on the floor. Since then, it seems that our representatives have never said “selected” as much as they do now.

When you are clueless in Pakistan, you turn to the army. And so Khan has appointed the army chief, Gen. Qamar Javed Bajwa, to his newly formed economic council. (Many would say the army chief appointed himself). The military already controlled security and foreign policy, and now it is promising to take us to new heights in economic affairs.

For a hint of who is really in charge, consider the case of two Pashtun lawmakers who have been arrested on questionable terrorism charges. Ali Wazir and Mohsin Dawar are the leaders of the Pashtun Tahafuz Movement, or P.T.M. (the Movement to Protect Pashtuns), which has been trying to counter the state’s narrative about Pashtuns being natural born warriors. They have been campaigning against extrajudicial killings and missing persons and for the removal of land mines from Pakistan’s tribal areas — and they have occasionally said that the Pakistani Army might have something to do with turning their homeland into a permanent war zone. (Khan used to say similar things. He once slept on the roads of Karachi to block NATO supplies because he believed, rightly, that these supplies were being used to wage war against the Pashtuns.)

After Wazir and Dawar were elected to Parliament, they started to say on the floor what they had been saying at P.T.M. rallies. And then, at a news conference in Islamabad in late April, the army spokesman Maj. Gen. Asif Ghafoor said of them, “their time is up.” A few weeks later, Wazir and Dawar were accused of attacking the Khar Mar army check post in North Waziristan in which at least 13 civilians are thought to have been killed. Yet plenty of videos of the scene appear to show them arguing with soldiers, trying to cross a barrier and being fired upon.

There has been no inquiry. Both parliamentarians remain in custody. And unlike other jailed politician.

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