No Dollar, No Democracy, See?

FOR TWO weeks running, I have been giving you excerpts from the writings of eminent Indians on Kashmir . After reading them, you must have concluded that not all Indians are ogres. Except, as I said last week, for that mad minority, most Indians believe in non-violence and want to live in peace with their neighbours.

          One example of this goodwill was Pakistan 's World Cup  victory. For most Indian  sports writers, the Pakistan win meant only one thing: the Cup had returned to the subcontinent. Praise was spontaneous and limitless. POWER PAK! Screamed a joyous headline in a sports magazine . The Indian Press  really went to town over the famous victory. (One must express gratitude here to the Indian High Commission in Islamabad , which sent us a scrapbook on the World Cup's coverage by the Indian Press).

          What I mean to say is that there is goodwill on both sides of the border (leave the mad fringe on either country alone). There is no problem between India  and Pakistan  that cannot be solved amicably. And this includes Kashmir . Unfortunately, however, some people in India feel that if the Kashmiris  are given the right of free choice, it will lead to the disintegration of their country. The Sikhs  will intensify their struggle for Khalistan  and so on.

          One thing should be noted here, though. Under the rules of partition, agreed to by both sides, the princely states in British  India  were given but two options - join either India or Pakistan . There simply was no third option. Again, under rules of partition, geographic contiguity and the religion of the population were the two criteria to be applied for accession. So you can see where Kashmir  belongs. The Sikhs  case is different: they want sovereign status. There always are complications when you violate solemn agreements entered into bilaterally or multilaterally. India has violated the principles of partition and the pledges it gave to the United Nations .

          Look at other aspects of the matter: Since India  has always sought a military solution of its internal and international problems; it has had to maintain a huge war machine forcing Pakistan  into a wholly avoidable arms race; this at a time when millions of people in both countries are living below the poverty line. India has failed to honour its own Constitution in all these years of independence: where is equal opportunity for all; where is freedom of conscience? (In this sentence, you can also read Pakistan for India).

          Do policy makers in New Delhi  and Islamabad  never think of the pavement and Kathci Abadi dwellers? How can the powerful go to sleep at night? Why must Kashmir  continue to be mowed down? Why must its Muslims  continue to be denied their economic, social, and political rights? Why must its women continue to be gang raped? Does India  want to decimate the Kashmiris ? Does it want just the land and not the people of Kashmir? Why can't George Bush , the keeper of the world conscience shed half a tear for the Kashmiris? Because, it has no oil, and is of little or no strategic value to the United States . Kuwait was different. No dollar, no democracy, see? And they are Muslims. Savvy?

ONE had the privilege of calling on Dr. Javed Iqbal  the other day. Judge Iqbal has presence; he has intellect, erudition, and that rare ability-he can think coherently. He is a critical student of Islamic  history and he feels that unless we open the early years to scrutiny, we cannot move forward.

          Dr. Sahib spoke on several issues and it would be unjust to deal with all of them at one go. Let me take up two issues on which he spoke briefly and which are not related to the main body of his discourse. These are the law of contempt and our ignorance of the system of jurisprudence during the Sultanate and the Mughal  periods.

          On the law of contempt, Judge Iqbal  feels that it should be used sparingly. " And it is used sparingly by our courts ," he adds. The judiciary does have power under the law of contempt but " this power must not be used for purposes other than for which it is meant. "

          A contempt case involves the judge himself. " Again, the concept of contempt is such that it involves the judge concerned only and not the institution as a whole. The British  tradition is that contempt can be committed even outside the court. There is this example of a British judge whose wife used abusive language against him at home. The judge promptly served her with a contempt notice. "

          However, Judge Iqbal  didn't tell me whether the errant wife was sentenced or not, but went on to say that the concept of personal contempt is outdated. " There should be free comment, you know. "

          In Islam , Dr. Javed Iqbal  said, there was no concept of contempt. Islam had a different judicial system altogether. Here the practice of setting precedents was not used. " Every Qazi  pronounced his own judgment and other Qazis were not supposed to follow it and could deliver different judgments. To set a precedent and to follow it to discover new law points is a purely Western  tradition and by the time it was developed, the entire Islamic  judicial system had crumbled. "

          Here is South Asia ; the British  abolished the Qazi  courts in 1864. " But we haven't really given any attention to the matter. The Ministry of Religious Affairs constituted a committee. Maulana Abdus Sattar Niazi  did it. I was a member of this committee and I asked my colleagues whether they knew of any history of the judicial system during the Sultanate or under the Mughals . What was the situation in Sindh , which was an Arab dominion for hundreds of years both under the Umayyads  and under the Abbasids.

          " Lahore  was made a capital city by the Ghanavids . Mahmud's son Masood did it. Then we had the Sultanate, and the Mughals . There must be some book on the judicial system in vogue then. To what extent was the Shariat  applicable?"

          " Yes, there are books on history but none of them tells us how the judiciary functioned then. How were the Qazis appointed? Who appointed them? Were Islamic  laws in force? You see, after the Mughals , even during the British  period, Muslims  in the Punjab  deprived their daughters of their share of inheritance. This was done on the basis of custom and not the Shariat . The Islamic law of inheritance was not followed by the feudals. What was the judicial system then? Now, we've written to the Government that efforts should be made to have the history of the pre-British judicial system written. But who will write such a book? "

          Yes, indeed, Judge Sahib, that is the question.

Friday, May 1, 1992