Tufail Ahmad
It is time for Faizan Mustafa – a leading columnist on Indian Muslim issues and vice chancellor of the Hyderabad-based NALSAR University of Law – to enroll in a madrassa and teach Islamic Sharia. In article after article, Mustafa, a former law teacher of mine when I was at the Aligarh Muslim University, is advancing the cause of Islamic Sharia in India. His intellectual deceit is such that despite being a professor of law, he bases his arguments on the Quran and other Islamic texts instead of citing the constitution of India, or the cause of individual liberty. And whenever non-Islamic sources are cited in his articles, his singular purpose seems to be to defend the Sharia laws.
On October 28, Faizan Mustafa wrote an article in which he stated that he “believes in monogamy and is not in agreement with the affidavit filed by the Personal Law Board (before the Supreme Court) …”[1]However, the rest of the entire article is an erudite justification of polygamy in India. He also cited statistics that polygamy is prevalent more among Hindus than among Muslims, which should be a strong argument against polygamy. Mustafa conveniently forgets that it is Hindus, not hidden Islamists like him, who are opposing polygamy. But since Mustafa’s intellectual quest, i.e. the purpose of his writings, is justification of Sharia, he goes on to explain the benefits of the Sharia-based polygamy among Muslims. He says that a second Muslim wife is “better off in comparison to the ‘second Hindu wife’, who has no legal status or rights.”
Mustafa’s argument is also this: “The central issue is, if criminalisation of bigamous marriages is the most effective way to gender justice.” Then he offers his remedy: “There is no magic about monogamy, nor is everything evil about restricted polygamy, if it is allowed to all communities.” Obviously, the vice chancellor of a prominent Indian university is so blindsided that he cannot see polygamy as morally wrong for the democratic age. Instead of citing constitutional arguments, Mustafa cites the Quran to justify his intellectual stand in favour of polygamy. He says: “Muslim men, who take more than one wife are legally bound to provide each wife not only residence but also proper maintenance and equal care and love as the Quran permits polygamy…” His use of the words “legally bound” confuses the Indian constitution with the Quran.
“Even in the US, there is a call to legally recognise polygamy in some situations as the bigamy law has not led to the eradication of polygamy,” the law professor observes in support of his stand in favour of polygamy. Mustafa is also politically conscious and launches ideological attacks, stating: “The Modi government erroneously believes that monogamy is the only way to strive for equality between the sexes.” For the sake of freedom, Mustafa should be permitted to say what he deems fit, and therefore his intellectual deceit should also be discussed publicly, especially by the law students, who, there is reason to believe, he has been misguiding at NALSAR.
One can understand that writers take one stand on an issue and a sharply different stand on another issue of the day. But in the case of Mustafa, his arguments are consistently Sharia-compliant, meant to advance the cause of Islamic clerics. In an article dated September 19, Mustafa went on to oppose Uniform Civil Code (UCC) – which the government is required under Article 44 to secure for the people of India so that their fundamental rights are protected whenever a conflict arises with personal laws prevalent in the country.[2] Since the constitution came into force in 1950, no government has drafted a UCC, nor intellectuals and civil society organisations have taken upon themselves to draft such a code of human rights for Indian citizens. However, for the first time on November 30, I unveiled a 12-clause draft UCC for wider public discussion.[3]
In the very first sentence of the September 19 article, Mustafa attacks those, who support the UCC, stating: “Advocates of the uniform civil code attach out of place importance to Muslim Personal Law (MPL) without really appreciating both its lack of ‘legality’ as well as ‘divinity.’” The law professor wants Indians to appreciate “divinity” – not the cause of liberty and equality for which Muslim women are knocking at the doors of the Supreme Court. Since Mustafa’s quest is to retain the Muslim Personal Law as it is now, he goes on to quote the Quran: “The Quran has only 83 verses relating to law. Just like the American Constitution’s seven articles, Islam believes in minimum interdiction and leaves maximum scope for human interpretation of laws.”
Mustafa’s outstanding worry seems to be that the Supreme Court might strike down the practice of triple talaq as unconstitutional. He takes the same position as the one taken by the Muslim Personal Law Board that the Muslim Personal Law (MPL) is not “law” under Article 13, which means it cannot be struck down. Like the Muslim Personal Law Board, Mustafa states: “MPL is certainly not ‘law’ as per the definition of ‘law’ in Article 13 of the Indian Constitution. So, it cannot be challenged on the grounds that it violates the right to equality. Courts have the power of judicial review, only if a ‘law’ is in contravention of fundamental rights.”
I am worried that this vice chancellor of a prominent law university reveals in writing his complete contempt for the right to equality, which is a fundamental right available to every man and woman. If you are a concerned citizen, ask this question: Should Mustafa continue to serve as the vice chancellor and teach law despite writing words such as: “[Muslim Personal Law] cannot be challenged on the grounds that it violates the right to equality.” A law teacher should be teaching students that any law that violates fundamental rights must be quashed. I am extremely sorry that a law professor is forwarding such fallacious and self-defeating arguments. If MPL is not law, then how is that millions of Muslims are being governed under it and courts are delivering judgements? I am worried for the students Mustafa is teaching at NALSAR.
Mustafa cites an 1871 judgement to argue that the Indian courts should deliver judgements as per the Sharia, especially the Hanafi school of Sunni Islam which most Indian Muslims follow. He says: “Wherever there is a dispute between two Hanafis (followers of the Hanafi sect), courts have to adjudicate according to Hanafi jurisprudence.” The key question here is: why do the courts have to adjudicate according to Hanafi jurisprudence, and not according to the Indian constitution? He explains: “The Privy Council in the celebrated case of Aga Mahomed v. Koolsom Bee (1871) observed that ‘it would be wrong for the courts to put their own construction on the Koran….’” It is absolutely clear that this vice chancellor has his entire intellectual enterprise devoted to the cause of Islamic Sharia, not women’s rights, certainly not the Indian constitution.
Unfortunately, this country honours such Muslims and offers them vice chancellorships. This law professor also thinks that Sharia laws are beyond the jurisdiction of Indian courts. He states: “How can a court dictate that a citizen in his personal matters follow one school/opinion [of Islamic writers] and not another?” On December 16, Mustafa wrote an article, which followed observations made by the Allahabad High Court that the triple talaq is cruel, inhuman and unconstitutional.[4] While making the observations, the court left the matter for the Supreme Court to decide since there are similar petitions pending before the apex court. In this article, Mustafa launched an attack on the Allahabad High Court judge, stating: “Now the question is… should a judge make such sweeping observations, particularly when the judge has recorded that the matter is pending before the apex court.”
The issue of triple talaq remains unsettled due to which Muslim women are going to courts. But Mustafa writes: “The current debate even in Supreme Court is unnecessary as in 2002 itself apex court has held in Shamimara case that triple divorce does not dissolve marriage.” Even if the Shamimara case has decided everything, why would it matter to Mustafa, if the Supreme Court gave a final verdict ruling that the triple talaq is a violation of the fundamental right to equality under Articles 14 and Article 15? But after stating this, Mustafa introduces the same argument about ‘law’ under Article 13 (see above) to defend the Muslim Personal Law.
After citing the Shamimara case, Mustafa also cites another case, which reverses his own argument that the law on the invalidity of triple talaq is settled. He writes: “In Masroor Ahmad case, the wife filed the case of rape against husband, who continued to have sexual relations with her after giving her triple divorce. It is a different story that the Delhi High Court held that since triple divorce does not dissolve marriage and therefore there was no rape.” Mustafa is basically a maulvi, the Islamic cleric, who advocates Sharia. Interestingly, in this article, the maulvi in the law professor comes out into the open and urges ulema (Islamic clerics) – not the Supreme Court of India – to decide the matter. He writes: “The time has come when ulema need to come forward to declare that three instant divorces in one go without prior efforts of reconciliation would be considered as just one pronouncement.”
In this article too, Mustafa takes issue with the Modi government’s argument before the court that “something (i.e. triple talaq) which is undesirable cannot qualify as an essential Islamic practice.” He launches attack on the Modi government: “What the government has failed to understand is that Article 26 gives religious freedom both to religious denomination as well as any sect thereof. Thus, various sects have their own laws.” If he is so clear about the need for Sharia law, Mustafa should declare himself a Sharia advocate and continue to write, but he is a professor of law and in an important position as the vice chancellor of a university to influence government policy.
The law university vice chancellor needs to learn that under article 25, the Indian citizen – not communities and religious organisations such as Jamiat Ulema-e-Hind – has the right to religion. And the Article 26 provides freedom to manage religious affairs “subject to public order, morality and health” – and polygamy, halala and triple talaq are not acceptable in present times, especially since Muslim women themselves are at the front to demand their constitutional rights. This law professor comes out with obnoxious arguments such as: “Law is not a great agent of social control and we must accept its limitations in bringing about social change”; “Similarly demands of banning triple divorce are misplaced”; “Judiciary cannot create new crimes.”
My argument is also that Mustafa writes lots of other points in his articles, but those are essentially a cover for defending the existence and promotion of Sharia practices in India. In the December 16 article, he declares: “it is the duty of ulema to rise to the occasion and urge people to give divorce only as per Quranic procedure.” These are the statements of a law professor and I am left wondering if he is teaching the Quran, or the Indian constitution to his law students. I am not surprised that he began an article dated November 16 with a quote: “The best way to reform Mohammedan law is not to reform it at all.”[5] It is clear that a number of educated Muslims like Faizan Mustafa are posing themselves as liberal Muslim intellectuals while their hidden devotion is to the cause of Islamic Sharia in India. Hindu editors cannot see through their designs.
I have read a number of articles by Mustafa. In his articles, he does not talk about Muslim women’s rights. He routinely cites the Quran, not the Indian constitution. In none of his articles, Mustafa mentions Article 14, which guarantees the fundamental right to equality to Indian citizens. Article 14 states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” In none of his articles, Mustafa cites Article 15, which bars discrimination on the “grounds of religion, race, caste, sex or place of birth.” In none of his articles, Mustafa mentions Article 21, which offers protection of life and personal liberty, which includes human dignity, stating: “No person shall be deprived of his life or personal liberty, except according to procedure established by law.”
Article 21 protects human dignity with which Indian citizens must live their daily life and it is due to this reason that Shayara Bano from Uttarakhand has challenged triple talaq before the Supreme Court. But for this law professor, the dignity of Shayara Bano is not the issue, the dignity of Sharia is important to him. Faizan Mustafa is an agent of Sharia laws in India. I am extremely worried that this Sharia advocate is the vice chancellor of a major law university in India, with absolutely no considerations in his writings for the Indian constitution. I am worried that the mainstream media gives him a lot of space. There could only be two situations behind his thinking: one, he does not understand the constitution; two, he understands, but mischievously and deliberately undermines the constitutional arguments to advance the cause of Sharia in India. Let’s not forget: at the heart of his writings is the argument that the Indian constitution is subservient to the Quran.
Endnotes and References
[1] http://indianexpress.com/article/opinion/columns/multiple-ways-to-gender-equality-gender-law-religion-3294433/, October 28, 2016.
[2] http://indianexpress.com/article/opinion/columns/islam-quran-islamic-law-triple-divorce-supreme-court-muslim-personal-law-constitution-illusion-of-legality-3037921/, September 19, 2016.
[3] http://indiafacts.org/statement-draft-uniform-civil-code-indian-citizen/, November 30, 2016 andhttp://indiafacts.org/wp-content/uploads/2016/11/Universal-Bill-of-Rights-for-the-Indian-Citizen-Working-Draft.pdf, November 30, 2016.
[4] http://www.livelaw.in/triple-divorce-constitutionality-banning/, December 16, 2016.
[5] http://indianexpress.com/article/opinion/columns/uniform-civil-code-triple-talaq-muslim-personal-law-board-ucc-4368783/ November 16, 2016.
Former BBC journalist Tufail Ahmad is the executive director of the Open Source Institute, New Delhi. Ahmad is the author of “Jihadist Threat to India – The Case for Islamic Reformation by an Indian Muslim.” He tweets @tufailelif
