(This article was originally published in Tehelka Hindi Magazine, Issue 5, Vol 4, Dated 28 February 2013)
By Arif Mohammad Khan, senior politician and Islamic Affairs expert
As far as basic principles are concerned which are everlasting according to the Quran and are common in all religious traditions, they are clearly beyond the scope of change, or any alteration. The Quran says “The same religion has He established for you as that which He enjoined on Noah (prophet) – the which We have sent by inspiration to thee – and that which We enjoined on Abraham (prophet), Moses and Jesus: Namely, that ye should remain steadfast in religion, and make no divisions therein.” (Quran 42.13)
Maulana Azad in his commentary on Quran titled as Tarjuman-ul-Quran, asserts that “the Quran came to distinguish religion from its outward observance. The former is called Deen and the later is called Shar’a or Minhaaj. Deen was but one and the same everywhere and at all times and was vouchsafed to one and all without discrimination. In respect of outward observances of Deen, there was variation and it was inevitable. It varied from time to time and people to people, as seemed pertinent to every situation. Variation of this nature could not alter the character of Deen or the basis of religion. The Urdu term that Maulana has used for this one and same spiritual order is ‘Mushtarak Haq’.
Elsewhere Maulana holds that the teaching of a religion is two fold. One constitutes its spirit; the other is its outward manifestation. The former is primary in importance and the later is secondary. The first is called Deen (religion); the second is Shar’a, which has come to mean the law prescribed by religion.
So it is clear that the basic principles of religion are of abiding value but the laws that have a particular social, economic or political context become redundant when the context itself undergoes a change. Quran itself describes changes like alteration of day and night, changes that occur in human body as a result of advanced age, variations of the color of skins and languages etc. as signs of God, and emphasizes the need to apply mind to understand this phenomenon.
The call to study this process of change makes one thing abundantly clear; the Quran wants us to comprehend this process of change to enable us to prepare ourselves to face the new situations and challenges arising on account of emerging changes. It says: ‘Unless ye go forth, He will punish you with a grievous penalty, and put others in your place.’ (Quran 9.39)
Constant change is a fact of our lives. If a non-living thing, like a stone, is protected from the environmental impact, then it is possible that even after a thousand years it will stay the same. But anything, that has life, whether human, animal or vegetation, would either grow or diminish by the day. It cannot stay the same. Famous Muslim scholar Ibn Khandun writes in his book ‘Muqaddimah’, “The situation of the world and the habits of various countries are not always the same. The world is the name of the story of change of civilizations. Similarly these changes take place in humans, times and cities; in the same manner it happens throughout the world, through different ages and regimes. This process of change is the way of God which is not subject to change.”
Dr Sabhi Mahmasani, an expert in Islamic law, writes in his book, ‘Falsafa Shariat e Islam’, “There is no doubt that as a result of this variability of the world, man’s lifestyle changes, so does the paradigm of his welfare. Because the foundations of law are based on welfare of man, therefore it is imperative that along with the changes of time and society, there should also be suitable and necessary changes in the law and it should take cognizance of its surroundings.”
Another Islamic scholar, Ibn Qayyim al-Jawziyah has underscored this point in unequivocal terms, “Changes in the law are associated with changes in time and era, changing situations and the change in human behavior.” He says that:“there is a relationship between mankind and law. A lack of appreciation of this basic principle has given rise to a misunderstanding that has resulted in limiting the scope of Islamic laws”. Ibn Qayyim further says that “the Islamic law has attached highest priority to Masaleh Insaani (public welfare) and it has no place for such narrow viewpoint.”
It is important to keep in mind, that the nexus, between law and public welfare was highlighted by Ibn Khaldoon about 800 years ago and 400 years later, Ibn Qayyim had forcefully reiterated the same principle.
This argument is embodied in Article 39 of Mujallatul Ahkamul Adaliya (Islamic law rules). It sates: “la yunkir taghayyuril ahkam bit taghayyuruzzaman,” meaning it cannot be denied that with the changing times, laws also change. Others Muslim jurists commenting on this legal maxim have suggested to add: “wabittaghayyural Askana wal ahwaal” (the rules change as a result of change of residence and change of circumstances). In this respect the observation of Maulana Alai, a leading jurist is equally important. He says that the laws have a context and if the context undergoes change then the law is automatically terminated.
When we look at the history of Islamic laws, we come across several instances where with the change in the context, necessary changes were effected in the provisions of the law. There are several examples:
•Khiraj is a tax that farmers had to pay. Its rates were fixed in the time of Hazrat Umar (the second caliph of Islam), but later Imam Abu Yusuf reduced these rates with the change of times.
• Imam Shafi’i is one of the four Imams whose names are associated with the four Sunni schools of jurisprudence. He was an erudite scholar and travelled extensively. As a result of his travels he gave up several of his old beliefs (known as Iraqi Mazhab) and adopted new beliefs known as Egyptian School (Misri Mazhab).
• During the initial days of the Muslim rule, the Ulemas (clerics) who taught in schools (Madrasas) were granted large estates and stipend by the rulers. Imam Abu Hanifa and his colleagues took cognizance of this fact and prescribed that that the teachers of Quran and other religious books are not permitted to receive any salary for their teaching job. Later when grants and stipends were suspended, the Ulema of standing argued that this rule is no longer enforceable due to change in circumstances and issued necessary fatwa to remove the ban imposed by Imam Abu Hanifa.
The principle of changing laws due to the changing times and era is given full recognition in Islamic jurisprudence. But the examples cited above relate to laws based on the opinions and fatwas of juri-consults (Ulemas and Muftis). In addition to this there are laws, which are based on the provisions of Quran and prophetic traditions. Since Quran and prophetic traditions are the primary sources, it is believed that any law based on these two sources is unalterable.
However, we have several documented instances in history particularly during the reign of second Caliph Hazrat Umar when changes were made in the laws based on Quran and prophetic traditions. Famous Muslim scholar Shah Waliullah in his book ‘Fiqhae Umar’ has discussed this subject in detail and some of the cases he has cited are given below:
• There is a clear provision in the Quran about charity (Sadaqah): ‘Alms are for the poor and the needy, and those employed to administer the (funds); for those whose hearts have been (recently) reconciled (to truth); for those in bondage and in debt; in the cause of Allah; and for the wayfarer: (thus is it) ordained by Allah, and Allah is full of knowledge and wisdom. (Quran 9.60)
As stated in the above verse, the Prophet himself used to provide financial assistance to the new converts of Islam. Islamic commentator Behiqui writes that in spite of this explicit provision of the Quran, Hazrat Umar stopped the payment and said that the Prophet provided this financial assistance to help you to stand by Islam at a time, when it was being attacked and persecuted. But now Islam is strong and there is no fear of persecution and therefore there is no need to continue these payments.
• According to Sahih Muslim, (a compilation of prophetic traditions), “Abu al-Sahba’ said to Ibn ‘Abbas: Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah’s Messenger (may peace be upon him) and Abu Bakr. He said: It was in fact so, but when during the caliphate of ‘Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).” – Sahih Muslim Book 009, Hadith Number 3493
Considering the conditions and requirements of his time, Hazrat Umar implemented the views he deemed fit, but it is also true that a good number of Ulemas did not agree with this view and even now in several branches of Islamic law, the three divorces pronounced in one sitting are treated as one. Sheikh Ahmed Mohammad Shakir in his book ‘Nizam e talaq fi Islam’ wrote that this decision of Hazrat Umar was based on the political exigencies of the time.
• In Islamic law, the hand of the thief is cut off as punishment, as provided in the Quran: ‘as to the thief Male or Female, cut off his or her hands: a punishment by way of example, from Allah, for their crime.’ (Quran 5.38)
Prophet Mohammad had himself given this punishment for theft under this provision, but Hazrat Umar, during the time of famine, had suspended this punishment in the public interest. And this was widely accepted.
• According to Islamic law if an unmarried person commits adultery, then he is punished with 100 lashes and is banished for one year from that place. It is reported about Hazrat Umar that when he banished Rabia bin Umaiya, he went and joined the Roman forces that were fighting the Muslims at the time. On this Hazrat Umar said: that “from now onwards I will not banish any person from the city”. Hazrat Umar had effected this change in the rule in the interest of the state as the times and context had changed greatly.
• Islamic law gives authority to the ruler to decide the punishment if there are no clear provisions in the law. But in one hadith it is clarified that in such cases, the punishment should not exceed 10 lashes. But Hazrat Umar punished a man, who had made a fake seal of the state treasury with 100 lashes. Imam Malik, the first compiler of hadith, said that the punishment of 10 lashes was specific to the times of Prophet Mohammad and it is not applicable to later times.
• In cases of murder Islamic law stipulates the provision of ‘khoon baha’. According to this the murderer or the people of his tribe were required to give a specific amount to the family of the murdered. But Hazrat Umar changed this provision. The reason was that when he organised the government and the army for the first time, the collective power shifted from the tribes to the government.
Imam Sarkhasi while praising this decision said it cannot be said that Hazrat Umar’s decision deviated from the traditions of Prophet Mohammad. Actually, it was in accordance with the same tradition because he knew that Prophet Mohammad had devolved this responsibility on the tribes, as at that time, they were the basic units of governance and power. But with the creation of the army, the power shifted to the armed forces and many a time the soldiers fought against their own tribe. On the other hand Imam Shafi’i rejected this logic saying it was against the Prophet’s traditions.
One thing is clear from this argument that in Islamic tradition, the law is not a rigid institution but is very sensitive to the prevailing context. Historically it can be said that Islamic law has displayed dynamic elasticity that it can positively face the demands and challenges of the changing times.
In this context, the argument given by Sir Syed Ahmad Khan (1817-1898) is very interesting and lucid. According to him the Quran is the word of God and everything that we see in the world is the work of God. He said it is impossible to imagine any contradiction between divine word and divine work. If we perceive any contradiction then it means that we have failed to understand the word of God. In such cases, we need to review our own understanding of the word of God and strive for a meaning that will establish total harmony between the two.
The Quran appreciates the endeavor for establishing harmony and finding a solution to new circumstances and challenges and says, ‘And those who strive in Our (cause), – We will certainly guide them to our Paths: For Verily Allah is with those who do right (Quran 29.69)
(During the conversation with Arif Mohammad Khan, Atul Chaurasia came across some more points related to this article.)
Why is there an illusion of radicalism?
All the examples that I have given in this article are from early period of Muslim state i.e. seventh century to tenth century. This period of three centuries is known in Muslim history as the ‘golden period’, especially the eighth and the ninth centuries when Indian and Greek books were translated into Arabic.
‘Surya Siddhant’ was the first Indian book that was translated into Arabic by Fazari in 771 AD, with the title ‘Sind-Hind’. Later this book reached Europe through Spain and Fazari came to be known as the father of Arab astronomy.
But it is true that in 10th century, there emerged new trends, which were inimical to the study of philosophy and science. This was mainly on account of Asha’ri movement that muddied the intellectual environment and placed restrictions on any kind of research and inquiry. This trend became more entrenched after the Mangol invasion of Baghdad in 1258, when the doors of intellectual reasoning and inquiry (Ijtihaad) were closed and blind emulation of the old was prescribed as the religious norm.
Justice Amir Amir Ali in his classic ‘The Spirit of Islam’ quotes an Arab editor who says: “but for Asha’ri and Ghazali, the Arabs might have been a nation of Galileos, Keplers and Newtons. By their denunciations of science and philosophy, by their exhortations that besides theology and law no other knowledge was worth acquiring, they did more to stop the progress of the Muslim world than most other Muslim scholiasts. And up to this day their example is held forth as a reason for ignorance and stagnation.”
But this does not mean total absence of movement in Muslim societies. They are availing the benefits of the progress as consumers and unlike the first three centuries, they failed to act as agents of change and progress. However with new awakening and spread of modern education one can hope for more positive changes in near future. Still there is a section of the Muslim clergy who are stuck in the old rut and that erroneously creates the impression that Muslims are generally averse to change and reform.
Historically speaking, the traditional Muslim scholars have belonged to two categories. First, the Ulemae Haq, the scholars including Sufi Masters, who devoted their lives to worship God and serve God’s creation. To them any discrimination based on religion was a taboo. In fact the best example is the provision of langar (public dining) in Sufi centers, where only vegetarian food was served so that anyone and everyone could eat there without any reservation.
The other category of the scholars, were known as Ulemae Soo, who acquired great proficiency in legal quiddities. They served the Emperors and Kings and employed their legal skills to justify every royal action through the instrumentality of the fatwas. Right from the Umayyad period when fatwas were given to support military action against the grandson of the Holy Prophet, who had refused to endorse conversion of Islamic caliphate into dictatorial monarchy. Imam Husain was martyred at Karbala and the number of fatwas justifying this barbarian act runs into hundreds. Similarly great Sufi Sarmad and his disciple Prince Dara Shikoh, were put to death on the strength of the fatwas of the leading clerics of the Aurangzeb era. It can be said that the pens of these Ulema have always aided and abetted the bloodthirsty swords of the wielders of power. It is this record, which prompted Maulana Azad to say that “our history is replete with the doings of Ulema who have brought humiliation and disgrace to Islam in every age”.
The role of Politics
To understand why the perception about Muslims and Islam in India is that they are stuck in the past, we have to understand Indian politics. Here, those who claim to represent the Muslims, for political reasons, publicly act in a manner that contradicts their private conduct and possibly personal belief. This trend started with Jinnah. Though born in a Muslim family, his reported conduct and behavior did not conform to Muslim standards. In fact many of his personal friends have described him as a non-practicing Muslim. Still he felt no hesitation to don the cap of “sole spokesman” of Indian Muslims and demand partition of India. He himself was modern and liberal but to achieve his political ambitions he promoted orthodoxy and conservatism to the hilt. Similarly in Shah Bano case, we saw support for ‘communal identity’ (Milli Tashakhus) coming from politicians who otherwise swear by secularism. Why this happens? It is because power seekers realise that it is not secularism but divisive slogans that yield political dividends.
When political establishment feels no hesitation in making deals with the advocates of separatist and communal demands, the message is absolutely clear: If you belong to a religious minority and you have political aspirations, then act in conjunction with the protagonists of ‘separate identity’ and you will be suitably rewarded.
If you compare the pre- and post-Shah Bano situation, then you will realize the difference. The government action strengthened the communal and separatist voices and the damage has not repaired fully even after two and half decades.
Mufti-e-Azam in Kashmir and Owaisi
It is true that right from the beginning there have been differences between Muslim scholars on the question of permissibility of music. The case against Hazrat Nizamuddin that I have previously referred to was related to music. A section of the clerics have strong opinion that music is not allowed. On the other hand, there are scholars, including Sufis, who believe that music is a medium that helps spiritual growth. In our own tradition, Amir Khusrau was an accomplished poet, a gifted musician, who invented several musical instruments. Maulana Azad was a great lover of music and countered all claims that, music is not permitted in Islam.
In Islamic Arab, the history of songs and music can be found in the famous book ‘Kitab al-Aghna’ written by Abu l-Faraj al-Isfahani (897-966). The book describes in detail male and female musicians. The prominent names among women musicians are ‘Azza al-Maila’ and ‘Jamila’. Both these women musicians were skilled in their art and lived in Medina.
About the fatwa of Kashmir’s Mufti Bashiruddin Ahmed, all I can say is that this fatwa could be the opinion of one section of Muslims, but it cannot be called Islamic. When this fatwa comes from Kashmir, which is the birthplace of famous Sufi Lalla Arifa and Nooruddin (Nund Rishi), it sounds paradoxical. Nowhere in the world, devotional songs in regional language are sung in any mosque except in Kashmir where, the devotees sing Aurade Fathiya in groups after offering their Namaaz. This is considered part of their formal worship.
The controversy surrounding the speech of Akbaruddin Owaisi comes as no surprise. Owaisi belongs to Majlis, which was the political organ of the Razakar organization of old Hyderabad. This is the same organization, which opposed Hyderabad merger with India, which led to police action and the people of Hyderabad had to face a great tragedy. It is the same party whose leader Kasim Rizvi had no qualms in fleeing to Pakistan after asking the youth of Hyderabad to recite Kalima and jump before Indian tanks. Now if an inexperienced leader of the same party insults the religious traditions of his compatriots in his speeches, it does not surprise me. The Congress should be questioned in this case, as to why they included the Majlis in the UPA. Owaisi probably does not know that the Quran says, “Revile not ye those whom they call upon besides Allah, lest they out of spite revile Allah in their Ignorance. Thus have We made alluring to each people its own doings. In the end will they return to their Lord, and We shall tell them the truth of all that they did. (Quran 6.108)
Not only the Majlis, from nationalist angle, the presence of Muslim League in UPA is equally unacceptable. This party led the movement for the partition of India, which resulted in death of and uprooting of lakhs of people, and now the same Muslim League is part of the government with the Congress. I concede that the Muslim League of Kerala is different from the old Muslim league but the name Muslim League in itself is anathema and they can be influenced to change it. Maulana Azad in his speech, on 23 October 1947, in front of Jama Majid in Delhi had said, “now that the Indian politics has taken a new direction, there is no place in it for Muslim League”.