2. ISLAMIZATION: LAW AND SOCIAL CHANGE IN COLONIAL INDIA
The position regarding Moslem law is strikingly different. Although, in its early phase, custom functioned as a source of law in Islam, “the legal theory of Islam, on the whole, does not recognize custom as an independent or formal source of law.” Custom could only be a “minor constituent of law at the option of the jurist”.
But it had “no function or validity as an opponent of law, as it did have under Hindu legal system” (Mahmood, 1975: 101). If this is the correct view of the role of custom in Islamic theory, it would follow that British administrators and legislators were somewhat “misguided... by the position of custom vis-à-vis Hindu religious law” for the entire period (1781–1901) (id.: 20–21). The reference to “usages” of Moslems may have been partly inspired by the position and practices of Hindu converts to Islam (Malbar, Punjab and Central Provinces) who continued to follow certain aspects of Hindu law as well as the adherence to certain regimes of customary law by “the Mapilla of South India, the Memons of Western India and in particular regions, for example, Punjab and adjoining territories”. Fundamental and wide-ranging differences existed in respect of succession in the Marumakkatayam or Aliyasantan customary laws followed in South Kanara and North Malabar.The juristic advertence to custom amongst Moslems led to a whole variety of responses by Moslem leaders at the beginning of this century, although we do not have studies concerning the actual interplay of “custom” and “law” in Islam during the intervening period. The ulamas (Islamic doctors) began efforts
“For a complete supersession, among the Muslims of all groups and religions, of the non-Islamic customary law, and for the compulsory enforcement of the Islamic legal system. They explained to their people that their religion did not permit them to follow any non-Islamic customs.
At the same time they demanded from the Government statutory enforcement of the Shari'a law. These efforts of the Ulama brought to the Indian statute book a number of sectarian, local and central enactments abrogating the non-Islamic customs followed by the Muslims and replacing them by the laws of Islam.” (Mahmood, 1977: 21)The movement culminated in the Shariat Act, 1935; which comprehensively listed all areas where the Moslem personal law (Shariat) was to apply “notwithstanding any custom or usage to the contrary”.
The result looks to be the same as with the Hindu law. Just as the high-culture scriptural law virtually prevailed over the “low-culture” customary law, so did the Moslem high-culture law ultimately triumph over the regimes of “un-Islamic” customary law. Or one might vary the metaphor and say that the Great Tradition in Islam (“elite-based, urban, reflective and formalized”) triumphed over the Little Tradition (which is “rural-based, consisting of the unlettered and less formalized”) (see Yogendra Singh, 1973: 84; Baxi, 1975: 40–52). But the processes by which this was brought about were quite different. The Anglicization processes were at work in the triumph of śāstra over custom; the Sharia triumphed over custom because of the leadership of the ulama and consistent political pressures. This distinctive phenomenon may be called Islamization. Socio-culturally, Islamization denotes an “increased tendency” among Indian Moslems towards new identity-formation based on an increase in orthodox Islamic principles and cultural life, and conscious rejection of many syncretic elements which had thus far persisted as remnants of their Hindu past (Y. Singh, 1973: 76; Baxi, 1975: 27–28).
It would, indeed, be rewarding to pursue the working of Islamization processes in the period 1900–1950. Abrogation of un-Islamic custom was the basis of new identity-formation for a whole community of people, divided in themselves by a rich heterogeneity of cultural and social traditions.
But to what extent have un-Islamic customs been annihilated? Is the social heterogeneity or legal pluralism amongst the Indian Moslems (often given as a ground for the impossibility of arriving at a uniform civil code) only based on the conflicting doctrines concerning the law among the Sunnis (adhering to Hanafi school), on the one hand, and the minority Shafil school, Shia Ithna Ashari school, and sub-groups of the Islamic school of law, on the other? Or is it really attributable, besides differences as to the scope and nature of the revealed law, to actual and significant variances in custom or people's law from the Great Tradition? Is the “triumph” of Islamic law over un-Islamic custom merely a normative victory? Is the distinction between state or revealed law and people's law a universal a priori or can one posit situations of total convergence between the former and the latter? Or is it wholly the case that, far “from promoting strict adherence to elements of Sharia, Islamization has allowed the Muslim communities in India to either legitimize local customs and practices or to reconcile them with Sharia?” (Ahmad, 1976: XXXII). These are large theoretical and empirical questions. There is less research on these questions as compared with the work on Hindu law. But both the theses – one proclaiming the rise of the Sanskritizing, high-culture Hindu law and the other vaunting Islamization – merit much closer examination than hitherto accorded to them.The institution of kazis, a typical feature of administration of justice during the Mughul rule in India (Ahmad, 1941; Hussain, 1934), which “survived” in colonial India, highlights another aspect of interaction between SLS and NSLS. The kazis performed judicial as well as extra-judicial functions such as acting as notary public, marriage officers, etc. The Hastings Plan of 1772 included kazis in matters involving Moslem law; this arrangement continued until 1864. With the reorganization of the judicial system, Act XI of 1864 completely abolished the system of kazis.
It was reintroduced by an Act of 1880, in deference to the consistent demand by the Moslems. But this measure did not really respond to their desire that “judicial as well as non-judicial matters to be regulated by Islamic law should be tried by kazis, and not by non-Muslim judges” (Mahmood, 1977: 63). All that the Act did was to empower provincial governments to enact laws to recognize kazis performing non-judicial, private functions (see id.: 64–66).The community's disappointment at the legislation led to a recourse by the laity to the ulama. Tahir Mahmood has provided a valuable account of a number of well-known religious institutions established during the 1867–1921 period, to which Moslems referred disputes involving succession, marriage, divorce, and family relations. Functionaries known as local muftis, assigned these jobs of conflict-resolution, emerged in response to the growing demand for Islamic institutions for the administration of the Islamic law. Literally thousands of family disputes were (and still are in some parts of India) referred to these non-state institutions. Religious leaders viewed recourses to state courts with disdain, especially as it meant the administration of Moslem law by non-Islamic judges. The 1880 Kazis Act, empowering governments to appoint kazis was thus virtually rendered a dead letter (Mahmood, 1977: 67–69).
People's courts, sanctified by religion and legitimated by the community, offer an apt example of popular nullification of the SLS institution of kazis. They also remain vitally related to the problems raised a little earlier, concerning Islamization and high-culture law and its hegemony over “custom.” There is promise also of interesting correlations between autonomous caste institutions of the Hindus as well as similar institutions of conflict-management among tribal groups in India. People's law often expresses itself more through its dispute handling institutions than through “custom” as a “material source” of law.