Borhras and reform
Udaipur masjid case judgement: A comment
The judgement delivered on 16th January, 1992 by the Rajasthan High Court on appeal by the reformist Bohras against the judgement given by the district court of Udaipur is significant in many respects.
The Bohra high priest was himself a plaintiff. He had claimed all the Bohra mosques in Udaipur and had sought an injunction for possession of these mosques pending the final disposal of the case. Earlier some Shababi (orthodox) Bohras had filed a suit (1982) for claiming the, mosques but the court was not convinced of their locus standi as it was their high priest Mohammed Burhanuddin called Da'i al mutlaq who claimed to ‘own' the mosques and hence his followers could not claim the mosques. Then the Da'i himself though it fit to file a suit in the district court of Udaipur claiming the mosques and prayed for an injunction to take over the possession of the mosques pending disposal of the substantive case.
The District Court of Udaipur granted injunction without carefully examining all the evidence placed before it. The learned judge accepted the claims put forward by the Da'i Sayedna Mohammad Burhanuddin. Here it would be interesting to throw some light on the claims made by the Bohra high priest. Before we throw some light on these claims, a few words about the Bohra sect would be in order.
The Bohras are a small Shia' Ismaili sub-sect.They branched off from the Ithna ‘Ashari Shias in second century hijrah (around hundred and fifty years after the death of the holy Prophet) by accepting Isma'il the son of Imam J'afar al-Sadiq as succeeding Imam rejecting the claim of Musa Kazim the younger brother of Isma'il. Hence they were called Isma'ili Shias. The Isma'ilis in the then political circumstances and on account of severe persecution by the Abbasid rulers, evolved a tightly-knit underground organisation headed by the imam from the progeny of Fatima, the daughter of the prophet . The Isma'ilis, through this tightly-knit underground organisation not only escaped the dragnet of the Abbasid rulers, but also succeeded in establishing their own empire in west Africa and subsequently in Egypt. They also succeeded, through a network of da'is (summoners to the faith), in spreading their mission in what is known in the history of Isma'ili Daw'ah (mission) as Hind, Sindh and yaman, quite a wide-spread mission indeed.
All the Shia' sects consider Imam not only as an absolute religious authority but also infallible. But according to the Sunni Muslims, infallibility is only for the Prophet and none else after him. As a Shia' sub-sect the Isma'ilis also consider Imams as infallible in religious matter. When the Imam went into seclusion in 12 to century A.D. due to adverse political circumstances the religious powers of imam were transferred to the Da'i. But the early literature does not accept Da'i as infallible as he was only a substitute to Imam, and not Imam. Later on in India, however the Da'i came to be accepted as Kal-masum i.e. like infallible though not absolutely infallible.
However, the fifty-first Da'i Sayedna Taher Saifuddin began to claim infallibility in absolute sense. Not only that he invented another pernicious doctrine of absolute ownership of everything belonging to his followers. Thus he claimed, in the famous Chandabhai Gullah case fought in the Bombay High Court in twenties and thirties, that he is master of body and soul of his followers and that the properties they (his followers) hold belongs to him and they are only munims (account keepers) for him. He also claimed their absolute submission in all matters religious as well as secular.
This doctrine of ownership by the Da'i of wealth, body and soul of his followers was invention of the fifty-first da'i. It did not exist before. The Da'is did not even claim infallibility. However, Taher Saifuddin could not substantiate his claims under cross examination in the Bombay High Court. He could not produce a single citation from the authentic books of the Fatimi Daw'ah. Naturally these claims were rejected by the learned Judge Martin of the Bombay High Court. Taher Saifuddin also claimed that he was god on earth (ilah al ard). Judge Martin rejected this claim outright arguing that the very fundament of the the Islamic faith is belief in wahdaniyyah i.e. unity of God. No one else, whatever his religious status, could claim to be God.
The fifty-first da’i also invented the doctrine of Raza (permission). The fifty-first da'i claimed that nothing can be done by his followers without his permission. This embraced not only religious but also the secular domain. For example a Bohra, he claimed, could not even start a business, a charitable or educational institution without his permission. He claimed the possession of the Bohra mosques in Udaipur on the ground that he was owner of these mosques. Moreover, for Bohras no namaz (prayer) could be valid except with his raza (permission). In Islam the masjid is dedicated (made waqf) only to Allah but here the da'i claimed that in case of the Dawoodi Bohra sect it is dedicated to the da'i and not to Allah.
In the present case also these claims were made by 52nd Da'i Sayedna Mohammad Burhanuddin. The District Court of Udaipur upheld these claims without properly examining all the relevant evidence. Thus the District Court of Udaipur granted injunction to Sayedna Mohammad Burhanuddin to take over the mosques. However, the order was stayed and the reformists filed an appeal against the order in the Rajasthan High Court at Jodhpur. The main issue in the case was the question of ‘raza'. The appellants denied that there is any need of ‘raza' for performing namaz and claimed that all the mosques in Udaipur belong to the panch Bohras (i.e. the representative committee of the Udaipur Bohras).
It was also claimed by the reformists that after coming into force of the Waqf Act in 1954, the Waqf Board is the only institution for management of the property including the mosques and Sayedna has no right over them. Mr.L.R. Mehta, the counsel for the appellants rightly submitted that under the Shia' Muslim Law, there is not question of ‘Raza' (permission) from the Da'i. He also submitted that though Da'i is sole trustee but only in ideal sense. He also argued that the balance of convenience is also not in favor of the plaintiffs as they are not in possession of mosques right now and therefore, the question of irreparable loss to them also does not arise.
He also argued that after coming into force of Waqf Board the mutawallis appointed by Waqf Board are legal and there is no need for obtaining consent of Da'i al Mutalaq or his nominee and that Da'i is not the owner of the Waqf property. Mr. Y.H. Mucchala, the counsel for the plaintiffs argued that the Sayedna is not only the spiritual leader of the Bohra community but also in sense, he is the only controller of all property including the disputed mosques and that if any prayer is done by or under any person who is not authorized by the Da'i of his representative that prayer is not prayer in the eyes of the Shia' law. He also submitted that the Sayedna is the sole trustee and general supervision vests in him.
As pointed out above even Imams did not make such sweeping claims at a time when they were faced with great persecution and they were compelled to build an underground organisation. In such secretive organizations authoritarianism becomes a necessity but despite this Isma'ili Imams never made such claims of absolute ownership and control over the minds soul and bodies of their followers. The learned counsel shri Mucchhala failed to establish the doctrine of ‘raza' as claimed by him. He relied on certain stories of a bhishti (water carrier) leading the prayer at the instance of the 18th da'i Sayedna Idris and Indian Bohras praying behind him as Sayedna Idris had given ‘raza' to water carrier for leading the prayer.
This story too was taken from a secondary source. It is not found in the book of history written by Sayedna Idris who supposedly asked the water carrier to lead the prayer. In fact even if true the moral of the story is to show the loyalty of the Indian Bohras to Da'i rather than establish the doctrine of ‘raza.' If this doctrine is so fundamental to the Isma'ili faith, as claimed by the Sayedna through his learned counsel then it should have surely been mentioned in the Isma'ili book of jurisprudence Da'a'im-al-islam (The pillars of Islam). This is the most authentic book of Isma'ili jurisprudence written to date. This book does not even hint, let alone mention, the doctrine of ‘raza'. It even does not mention that only Imam has the authority to appoint a prayer leader (pesh-namaz). It only lays down certain qualifications for the prayer leader.
Anyone fulfilling those qualifications, according to the da'a'im can lead prayers whether he is appointed by imam of the time or not.
Obviously then the doctrine of ‘raza' was invented for imposing control over the followers. It was thought to be ingenious device for control of minds of bohras. In fact it was invented as late as early twentieth century by the 50th da'i when the modernists posed new challenges before him. Some educated Bohras sought to establish a modern secular school in Burhanpur in 1902 and the fiftieth Da'i panicked and sought to frustrate modernists efforts. He insisted on obtaining ‘raza' from the the da'i. The fact that the concept of ‘raza' did not exist as late as nineteenth century is proved by the dispute about control of jamatkhana which arose in Udaipur. When the then Bohra dai's local representative sought to bring the key of the jamatkhana under his control, it was contented by a section of the Bohras that the jamatkhana belonged to the panch Bohras. The then ruler of the Udaipur principality ordered vote to be taken and majority of Bohras voted in favor of retaining control by the Panch Bohras. This instance was also cited by the reformists in the present case.
The concept of ‘raza' is being vigorously imposed by the present da'i to consolidate his authority over the community. In fact in last few decades the community has come to accept it as a religious doctrine. It clearly shows how such inventions by the vested interest, through persistent application over a period of time, can be made acceptable in the name of religion. The present da'i has so widened the scope of ‘raza' that now practically nothing can be done by the bohras without obtaining prior permission of the da'i or his representative. Because of application of this doctrine on such a wide scale the Bohras have been reduced to mere programmed automatons. Neither they can think for themselves nor can they act according to their will.
Such a doctrine is total negation of true religiosity. Religion is nothing if not deeply felt conviction free of any outward compulsion. True religiosity lies in inner freedom, in acting according to the voice of ones conscience, not submitting to an authority by outwardly compulsions. The Quran also pronounces this doctrine of inner freedom when it says “la ikrah fi al-ddin”(there is no compulsion in religion). The Bohra da'i on the other hand has reduced religion to a mere outwardly compulsions by strictly applying the self-invented doctrine of ‘raza'.
Judge Martin of the Bombay High Court in twenties had, as pointed out above, rejected all such absurd claims of the then da'i Taher Saifuddin. He dubbed these claims as un-islamic and against reason. The Honorable justice N. K. Jain is also inclined to agree with the pithy observations of justice Martin as he quotes extensively from his judgement and finally allows the appeal filed by the reformists. Justice Jain of course maintains that this case is for granting of injunction for possession of mosques and not a substantive case and hence the arguments presented from both the sides will have to be gone into much more carefully when the substantive case is heard.
What the Hon'ble judge has quoted from justice Martin of the Bombay High Court is worth repeating here as it throws light on the fantastic claims made by the then Mullaji and repeated again by the present incumbent: “I have been through all the other religious writings which was cited, but it is impracticable to do this in a judgement. I have given them my best consideration but in the result, I am not satisfied that they fairly substantiate the claims of the Mullaji to ownership of the minds and properties of the followers. Further the priests themselves would seem to draw a distinction between ownership in a worldly sense and ownership in a religious sense....I should mention an extremely important fact viz. that the defendants cannot produce a single instance of these extreme claims having been exercised by any Mullaji Saheb prior to the present suit”.
Is it not then obvious that the 51st Da'i invented these extreme concepts in order to bolster his authority and to meet the challenges being posed by the reformists?
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