1937 Shariat Act – For Muslims or for Jinnah and the Zamindars?

The 1937 Act, the joint strategy of the British and the League, was driven by political expediency rather than a desire to enforce Islamic Sharia.

Less than a week after the opposition parties met in Patna to oppose him, Narendra Modi threw a huge spanner into their works – the Uniform Civil Code (UCC). It was a philosophic challenge, also a political strategy. It split the 15 parties that met at Patna into three groups – one opposing the UCC, the next supporting it and the third confused whether to support or oppose. Modi’s UCC idea seems more deeply thought than merely to divide the opposition. He knows that not supporting the UCC is equal to supporting the pre-partition Shariat Act of 1937 passed by the British. The UCC will not be written on a clean slate. It will be overwritten on the 1937 Act. The present political actors seem utterly illiterate about the 1937 Act and its sordid background. If Modi recalls the sleazy story of the 1937 Act, it will unveil secrets that can potentially nuke the opposition. Recalling the story of the 1937 Act will mean reinstating the pre-partition Idea of India, which appears to be Modi’s dream project.

Climax first, story later

The long story later. Now straight to the climax. Today’s political actors do not seem to know that it was not — repeat not — the Sharia, but the Hindu laws that governed the Indian Muslims before 1937. Muslims of all denominations, all over India, followed the uncodified local Hindu customs and usages. The 1937 Shariat Act was imposed on them as a win-win political deal between the British, keen to divide Hindus and Muslims, and the Muslim League, keen to lure the Muslims away from the Gandhi-led Congress. The intent of the League was first to cut off Muslims who were too mixed up with the Hindus through local Hindu customs and usages, then to create a Hindu-hostile Islamic identity for them, and finally to pave the way for the partition of India.

This hidden aim of the Muslim League was abetted by the British by obliging the League with the 1937 Act. The mission of the 1937 Act had other hidden and sleazy side stories too. The 1937 Act, the joint strategy of the British and the League, contained provisions to sabotage the Islamic Sharia. How? By secretly smuggling the Hindu customs and usages into the 1937 Act to save the property rights of the Muslim leaders, Jinnah and the Zamindars from harm by the Islamic Sharia. Did the Shariat Act of 1937 — now acclaimed as the holy law of Islam — contain Hindu law provisions to secure the property rights of the League leaders? Yes, it did. Indeed, it’s an explosive story with a 1,000-year background.

No Sharia for 1,000 years

Islam came to India by trade in the 7th century and from the 8th century by the swords of Kasims and Ghaznis. It had spread to a large part of India by the 10th century.

But when was the Sharia law – now claimed by the Islamists as an immutable part of Islam – legislated over the Islamic coverts in India? Any guess? Not in the 11th century, not in the 12th, nor the 13th or the 14th or the 15th or the 16th or the 17th, not even in the 18th by which time the Islamic rule had virtually ended and power shifted first to the Marathas — read Hindus — and then the British. It was also not in the 19th century when the British rule was rooting and deepening. From when then?

It was in 1937 — more than a century and a quarter after Aurangzeb, the most ardent Muslim ruler passed away without legislating Sharia for the Muslim convert. The British government recognised the superiority of the prevailing local — read the Hindu — customs and usages among the converts over the Sharia. The History of the Evolution of Muslim Personal Law in India by K K Abdul Rahiman (1986) says the British gave strength to customs and usage that had long been adhered to particularly in matters of succession by sections of Indian Muslims.

Hidden political agenda, secret economic agenda

Why then the sudden move for Sharia law in 1937? This leads to two more questions: One, did the Muslim converts, who did not think of the Sharia law for a 1,000 years, demand the Sharia law on their own? Or, did the British, who ruled India for over two centuries, suddenly think of the far-reaching Sharia law for Muslims, something that was bound to affect Hindu-Muslim harmony? The answers to these questions will unveil the truth that the 1937 law was a deal between the Muslim League – not the Muslims – and the British. First, the converts did not ask for Sharia. It was the Muslim League that did. The British had always a hidden political agenda to divide the Hindus and Muslims to perpetuate their rule. The League leaders who demanded the Sharia had a hidden political agenda to partition the country and a personal economic agenda to evade the Shariat law by secretly retaining the Hindu law to protect their property rights. Now look at the Sharia law 1937. It is explicit that it was no full Sharia law. The 1937 Act was a cocktail of legislated Islamic law and the continuance of the Hindu law smuggled into it. The League leaders felled two mangoes with one stone. One, they achieved psychological separation of Indian Muslims who were enmeshed in Hindu traditions, habits and laws and prepared them for the eventual partition of the country. Two, they escaped the Islamic Sharia and preserved the economic power which the rich and powerful League leaders enjoyed under the traditional Hindu law. It was a conspiracy not only against India and the Hindus, but also against the Muslim masses.

Hindu law smuggled into Sharia

The critical part of the 1937 law contains just 92 words to override the traditional Hindu law that the converted Muslims were following and force many rules of the Islamic Sharia on them. It is those 92 words in the 1937 Act that are now held out as the immutable and divine Islamic law which the Muslims cannot deviate from.

But was the Sharia Act 1937 really the divine Islamic Sharia law prescribed for Muslims by Islam? No. It was, and continues to be, actually against Islamic Sharia. Why? It smuggles in three core rights granted by the Hindu law into the Shariat. First, the 1937 law permitted Muslims to write Wills to leave their properties like the Hindus do, to whosoever they liked – which is prohibited by Islam. Second, it excluded the agricultural land – the most valuable asset then and even now – and made the laws of Hindu rishis continue to apply to govern the Muslims. And third, it permitted childless Muslims to adopt, like Hindus, which Islamic law — even the Prophet — prohibited. In pure Islamic theology, the 1937 Act is anti-Quran — a blasphemy in Islam. Who benefitted from the deal to smuggle the Hindu law into the 1937 Shariat law?

Hindu law for Jinnah, Zamindars; Sharia for the Muslims

The right to Will properties, not permitted by Sharia, smuggled into the 1937 Act was a personal deal Jinnah negotiated for himself first. Jinnah wanted his huge estate to pass as he wanted, not according to Sharia. Two years after 1937, on May 30,1939, Jinnah did execute a Will to disinherit his daughter Dina who married a non-Muslim, a Paris, against his wishes. As his sole heir under the Sharia, she should have got his entire estate. Jinnah’s friend and prominent judge and jurist M C Chagla confirmed Jinnah wanted to disinherit Dina. Jinnah made his sister Fatima an executor of the Will and bequeathed to her all his movable assets and also the massive bungalow standing on a 2.5-acre plot in the most prestigious Malabar Hills area of Mumbai, valued at Rs 1,000 crore now. He made lots of charitable provisions and just gave a small annuity to the disinherited Dina. Surprisingly, Dina herself was born of a Parsi lady whom Jinnah married and converted to Islam. The next two deviations from the Sharia in the 1937 Act — the exclusion of agriculture lands and allowing the right to adopt — were designed for the Zamindars and other propertied gentry who constituted the backbone of the Muslim League. The exclusion of the agricultural land ensured that the entire land remained in the hands of the male heirs as per the Hindu law and girls did not get a share in it as per the Sharia. The right to adopt ensured that the Zamindars and others adopt a male child like the Hindus to deny any male heir from getting the property as per Sharia. The 1937 Act was Sharia for Muslims and Hindu Law for Jinnah and Zamindars.

Deal against Islam, by the leaders

Who would have insisted on the anti-Sharia Hindu law being smuggled into the 1937 Shariat Act? Obviously not the British. Why would they have insisted on the Muslims having the right to adopt, or the right to Will their properties or on the exclusion of agricultural lands from the ambit of the 1937 law? Who benefitted by sneaking the Hindu law into the 1937 Act? The League leaders, not the British. Does it need a seer to say that those who had made deal with the British, and insisted on continuing the Hindu law for themselves, could only be those who benefited by it.

Can those who shouted from the rooftops that the 1937 Shariat Act is the Islamic law of the Muslims and cannot be touched by even Parliament, deny that the 1937 Act was Sharia law for Islamic politics, and Hindu law for Jinnah and the Zamindars’ economics. By their deal with the British, the League leaders -- who secured their property rights by smuggling the Hindu law into Shariat Act -- triggered the communal emotions of the Muslims. In just 10 years, the Shariat Act 1937 broke the Hindus and Muslim social mix, divided them, solidified the Islamic identity, and triggered the demand for partition in 1940, which became a reality in 1947. The story of how starting with the 1937 Act, partition happened in just 10 years will appear tomorrow. Await the next part, The 1937 Act divided India. Will UCC integrate it?

The writer is editor, Thuglak, and a commentator on economic and political affairs.

Published in The New Indian Express on 06th July 2023. [3]