Sharia, Manusmriti or Indian Constitution
Dr Ram Puniyani
Sharia, Manu smriti or Indian Constitution
Ram Puniyani
The Indian Constitution has been the outcome of the values which emerged during our freedom struggle. The Constituent Assembly, broadly a representative of India, formulated the Indian Constitution which as a whole is the guide to our national life. The Constitution calls for democratic society based on Liberty, Equality, Fraternity and Social justice.
There was a section of political opinion mainly formed by conservative Hindus and those arguing that India should become a Hindu nation; who opposed it right from the start. The leaders of Hindu nationalist politics, supported by the conservative sections of society’s opinion; was articulated by an article in Organiser, the RSS mouthpiece, which opposed the Indian Constitution; saying that there is nothing Indian about it and it will not be accepted by the Hindus. Savarkar, went on to say that Manu smriti is the Constitution today. In this spirit Swami Avimukteshwaranand recently stated that Manu smriti is above the Indian Constitution.
This stream is not the only one to undermine the constitution and showing the primacy of ‘word of God’ or sacred scriptures. Maulana Mufti Shamail Nadwi made a similar statement. This Maulana has come to prominence in the last few days after his debate with Javed Akhtar on “Does God exists”. In a viral clip, he asserts that “Muslims erred by accepting secularism and the supremacy of national institutions over Shariah, criticizing democracy and the notion of placing the nation (desh) above religion. He questions whether believers should passively accept court verdicts conflicting with Islamic law. These statements, while presented as theological opinions, have been interpreted by critics as undermining India's constitutional secularism and promoting religious supremacy.”
While Manu smriti is a compilation representing the values of Brahmanism, the dominant stream within Hinduism, Sharia is based on multiple things. Sharia (Arabic: the path) is the Islamic legal-ethical system derived from:
“Qur’an, Hadith (sayings/actions of Prophet Muhammad), Ijma (consensus of scholars) and Qiyas (analogy)” It guides personal conduct and law, not just punishments. In practice, Sharia is interpreted through schools of jurisprudence (Sunni: Hanafi, Shafi‘i, Maliki, Hanbali; Shia: Ja‘fari), so there is a diversity within the legal system of Sharia.
Out of nearly 55 Muslim majority countries it shapes the laws etc. only in Saudi Arabia, Iran and Afghanistan fully. Partly it is implemented in a few other Muslim majority countries. In India it forms a base in matters of Muslim personal laws only.
So, what does one do with changing times and the social patterns, which have occurred over a period of centuries when these laws were devised. Those doing politics in the name of religion in India harp on bringing in Manu smriti and countries like Iran, Afghanistan and Saudi Arabia are having sharia in full. In many Muslim countries it is not implemented or implemented only in part.
Can Sharia be above the Constitution as the Mufti claims? The legal luminary Faizan Mustafa in a video
https://chatgpt.com/s/t_6958cc1175d881918e5e6573c342c651 argues that in every country the Constitution is supreme. The Constitution does consider Sharia in many countries and integrates some aspects of that in the Constitutions.
So, what is the status of democratic institutions in Muslim majority countries? There are different degrees of ‘democracy’ in these countries. At the moment many social sites are criticizing Shamail for encouraging Muslims not to follow the constitution, which is an anti-patriotic act. On the other hand, many are praising the Mufti for upholding the Sharia. It is interesting to note that during the medieval period of Indian History, the Muslim Kings did not make it obligatory for the state.
While Mufti Shamail has one opinion there are others like Asghar Ali Engineer, the foremost scholar of Islam in India; who have different idea about the role of Sharia viv a vis Constitution. Dr. Engineer harps on Shura (Mutual consultation); to argue that democracy and related principles are possible in the contemporary World. Dr. Engineer says a Quranic concept – and modern-day representative democracy – merely a human concept – may not be exactly similar. However, “the spirit of modern democracy and the Qur’anic injunction to consult people is the same”.
As per him “New institutions keep on developing and human beings, depending on their worldly experiences, keep on changing and refining these institutions. And in the contemporary world, the concept of Shura should mean democratic process and constitution of proper democratic institutions of which elections are a necessary requirement.” The Qur’anic text not only gives the concept of Shura (democratic consultation) but “does not support even remotely any concept of dictatorship or authoritarianism”.
In India’s freedom struggle, which was based on democratic principles and aimed at democratic institutions; very tall Islamic scholar Maulana Abul Kalam Azad and a dedicated Muslim leader Khan Abdl Gaffar Khan (to name the few) strove for the values and institutions of democratic secular country. Just a few years ago the Muslim women through the Shaheen baug movement showed their democratic strength in protecting the community from the fear of disenfranchisement.
What is needed in contemporary times? In India as Muslims are being targeted by Hindutva politics, they have become a besieged community. The conservatism among Muslim community is rising. The major issue confronting them is to save their rights as citizens using modern institutions.
Even in Islam there are various streams of laws and systems of jurisprudence. Since this is part of Sharia, in that case what Sharia recommends will be another contentious issue. Since Muslims are a minority in this country, they already have Personal laws, which are again under opposition.
Today Hindu right wing is the dominant retrograde tendency trying to bring to fore the values of Manu smriti. Such assertions which want to bring inequality in the garb of religion are not welcome. We need to also look to some European countries where religion is on the backfoot.
We are living in contradictory times. On one side human society has developed the principles of dignity and equality as represented in the UN charter and on the other religious rightwing has become stronger during the last few decades. While Mufti is knowledgeable in concepts of Islam, we also need to know what are the trends of contemporary society and values of democratic institutions.