Borhras and reform
Violations of rights: The Bohra case
The concept of perfect democracy can rarely be achieved in practice. In fact if perfect form of democracy could be realised in practice the concept of religious or linguistic minority-majority also would be superfluous. Many scholars argue that in democracy there could be nothing like religious minority or majority, but only political minority or majority.
The underlying assumption for such formulation of political minority-majority is that a perfect form of democracy is realisable. Vested interests, prejudices and will to dominate always lead to majoritarianism. The religious majority tries to dominate and deny religious or linguistic minorities their due.
It is for this reason that constitutional safeguards are provided to protect rights of racial, religious or linguistic minorities. All democratic constitutions make such provisions in greater or lesser degree. Only authoritarian societies might deny its minorities such rights and perpetuate dominations by racial or religious or linguistic majorities of corresponding minorities. In fact it is a well known fact that India got divided because a section of Muslim minority could not be ultimately satisfied with respect to the constitutional arrangements to protect their political interests. Had such an arrangement be successfully negotiated our country would not have been divided.
It is also wrong on the part of some scholars to argue that Muslims are inherently separatist or that Islam requires that Muslims carve out a separate Islamic regime. Undoubtedly there is a small fanatical section among the Muslims who keeps on arguing on these lines. But the reality is far more complex. Such a fanatical fringe does not reflect the whole reality, much less its central core. There are several examples that other non-muslims minorities also have waged separatists struggles. Two examples are quite prominent in this respect - the Catholic Christian minority of the Northern (Ulster) Ireland refuses to be integrated with the Protestant Anglican Britain. They have been waging struggle for more than sixty years for its separate existence. The second example is that of French speaking minority of Canada which feels suffocated within the English speaking Canada and often comes close to separation. Two years ago in a referendum the unity of Canada came close to peril and could be saved only by one percent vote. The minorities do have real or imaginary grievances and special provisions have to be made in the constitution to resolve them.
Though a section of Muslims insisted on separate homeland and got it, all Muslims in India were not in favour of vivisection of the country and after its vivisection refused to migrate and voted with their feet against creation of Pakistan. Thus those Muslims who had remained behind had to be satisfied with proper constitutional provisions for their rights as a religious minority and to protect their identity and culture. The Constitution did make these provisions in the form of Articles from 25 to 30. The Article 25 guarantees, subject to public order, morality and health and to other provisions of this Part (Part III on fundamental rights), all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
In fact Article 25 is applicable to all citizens of India and is not applicable only to minorities. Nevertheless, it does provide a constitutional guarantee to minorities to profess, practice and preach their religion. It is, needless to say, very significant fundamental right available to all the citizens of India, and to minorities, in particular. Similarly, Article 26 relates to freedom to manage religious affairs. This article relates to the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs to matters of religion, to own and acquire movable and immovable property; and to administer such property in accordance with law. And Articles 29 and 30 relate to cultural and educational rights. The Article 29 empowers any section of citizen to conserve its distinct language, script or culture, and that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds of religion, race, caste, language or any of them.
And finally Article 30 guarantees right of minorities to establish and administer educational institutions. The Article states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice and the State shall not in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
These are important fundamental rights meant specially for the minorities. And, as pointed out above, no democratic society can flourish without such constitutional guarantees to the minorities. The Indian constitution, thus, is highly democratic and has provided lead to many other countries in Asia and Africa.
However, there is one vital question which relates to minorities within minorities. As a minority wants constitutional guarantees to protect its religious, educational, linguistic and cultural rights vis-a-vis a majority, a minority within a minority also wants to secure these provisions. But, it has been seen and experienced that while a minority is anxious to secure these rights vis-a-vis majority, is not in turn, as anxious to impart these rights to a minority within its own fold. This majority' within a minority is, on the contrary, quite ruthless in denying or suppressing these rights of the minority within its own fold. Not only this, there is another important question to be dealt with. Even within the main minority', the constitutional provisions are, more often than not, monopolised by a small coterie denying their enjoyment to a wider variety of elements within its own fold in true democratic spirit.
The case of Bohras
We would like to illustrate our above thesis with the help of the case of the Bohra community. The Bohras are close to one million in India and are spread in several states particularly in Gujarat, Maharashtra, Rajasthan and Madhya Pradesh. Besides these they are also found in Calcutta, Hyderabad, Cochin, Calicut, Madras and several other cities of other states. The Bohras are shi'ah Isma'ilis but differ from the Agakhani (or Nizaris) who too, are shi'ah Isma'ilis. The Nizaris, as the name itself indicates, accepted Nizar as their 19th Imam on the death of Imam al-Mustansir, the 18th Fatimid Imam. The Bohras on the other hand, accepted Musta'li as the 19th Imam. They can also be referred to as Musta'lians . The word bohra is, however, of Indian origin. The Bohras, are originally from Gujarat and were converted in 12th-13th centuries A.D. mostly from middle caste Hindus, especially from trading castes. These trading castes are often referred to as Vohras in Gujarat. This caste appellation stuck to them and in the course of time V ' was replaced by B ' and they came to be known as Bohras.
As they are primarily a business community, they migrated to different parts of India and abroad in search of better prospects for business. But wherever they went they preserved their Gujarati language and culture. The Bohras are a highly well-knit and inward looking community. It is tightly controlled by religious leader known as the Da'i which literally means summoner to the faith '. In fact the da'i is not the highest authority in the Shi'a Isma'ili hierarchy. It is the Imam from the progeny of Fatima, the daughter of Holy Prophet (PBUH) and Ali, his cousin and son-in-law. But since the Imam is supposed to be in seclusion, the da'i deputises for him. Most of the da'is were highly religious and God-fearing and looked after the welfare of the community. But the things began to change with onset of the British rule and consequent improvement in the prospect of trade.
The Bohras became more prosperous and the da'is began to attract part of this wealth by devising new methods of taxation. As the da'is grew richer their lust for power and money also increased and in order to extract more money they began to tighten their control over the community. Also, the spread of modern education increased their fear. They thought modern education will intensify critical thinking and lessen their influence and hence they began to persecute those who began to establish modern educational institutions. The first four persons who became victims of persecution in the form of ex-communication (called salam band) were those who tried to establish modern school in Burhanpur. This control by priesthood increased so much that it became impossible for any Bohra even to raise any question about the monstrous powers assumed by the priesthood.
Also, the large priestly family began to live in high style like princes. Not only that, each male member of the family began to describe himself as prince. Any Bohra who addressed them otherwise, was severely punished. This went to such an extent that the da'i began to insist that a Bohra is his slave ' (abd) and the he/she must describe himself/herself as abd-e-Sayedna/amat-e-Sayedna (i.e. slave or slave girl of Sayedna, Sayedna being the Bohra high priest. It was also made compulsory that on every marriage invitation card one must write abd-e-Sayedna' or amat-e-Sayedna' and if one did not, the marriage function will be forcibly annulled.
Again, it is not the matter of describing oneself as abd ' or amat ' (slave or slave girl) as mere formality but it is expected of the Bohras that they literally behave as slaves. They are not free to undertake any activity of their own free will. They have to obtain permission for every thing from Sayedna or his representatives (posted all over India and abroad) from birth to death - be it marriage, burial, naming of a child or be it doing business or starting any institution. Also, he has to pay up about seven taxes whenever demanded and particularly during the month of Ramadan. Non-payment of these taxes can result in severe repercussions. A regular tab is maintained on every Bohra individual. One is required to fill forms every year declaring his/her assets on one hand, and an account of his/his activities such as membership of various committees, attendance of study circles (daris) regularly conducted by the authorised representative of the da 'i. If one is not regular in these matter he/she will not be issued green card which is necessary for entry into Bohra mosques/mausoleums/jamaatkhanas etc. In short, one can say that the way a Bohra's live is controlled and strictly regimented, even the most authoritarian state does not regiment citizens' life.
If one disobeys Sayedna's regulations or fails to pay the dues demanded, he/she is put under socio-religious boycott. A boycotted person is shunned by all Bohras including his parents or children or brothers and sisters. No one can maintain relations with such excommunicated person. If one does, he/she will also be boycotted or excommunicated. Such an excommunicated person cannot attend funeral of his/her near and dear ones or participate in their marriage functions or on any family occasions. Only a Bohra knows what kind of curse it is to live under the authoritarian regime of the Sayedna.
One can say that the Bohras, though formally governed by the Indian Constitution, enjoy no fundamental rights at all. What the Indian Constitution guarantees and implemented by the government of India, is taken away by the Bohra high priest in the case of the Bohras. A Bohra has neither freedom of speech nor freedom to act according to his conscience. The Bohra da'i 's establishment is a government within the country's government. And, as far as the Bohras are concerned, the da'i 's government happens to be much more powerful than the country's government. In any case a Bohra cannot escape the wrath of the Sayedna's government. He/she can avoid payment of income tax but cannot avoid paying the taxes imposed by the da'i. If he does, his/her entire socio-religious life will be ruined. He may end up getting completely isolated from entire community including his own family.
It is against this authoritarian regime of the Bohra da'i that some conscientious Bohra raised their voice and struggled to retrieve their lost fundamental rights guaranteed by the Indian Constitution. In order to dilute the da'i's authoritarian regime the reformist Bohras demanded that:
- The functioning of local Bohra jamats be democratised
- The da'i should be made accountable for the funds collected from the community
- That the payment of money should not be compulsory but voluntary in the form donations and
- That the da'i should act merely as a religious guide and should not interfere in personal and secular matters
The reformists Bohras and their supporters were inhumanly persecuted for making these elementary democratic demands. They were not only excommunicated (or put under barat or social boycott) but many of them physically assaulted. This writer was nearly fatally assaulted four times including once in Egypt. However, he had miraculous escapes. Many longstanding marriages were dissolved because either husband or wife supported the reform movement. Many children were lost to their parents or vice versa in this struggle.
The Nathwani Inquiry Commission which was appointed by Citizens For Democracy headed by Shri Jayprakash Narain, inquired into the violations of human rights of the reformists Bohras. The Commission headed by a retired high court judge Shri Narendra Nathwani and comprising legal experts and eminent academics concluded that:
The inquiry has shown that there is large-scale infringement of civil liberties and human rights of reformist Bohras at the hands of the priestly class and that those who fail to obey the orders of the Sayedna and his Amils, even in purely secular matters, are subjected to barat resulting in complete social boycott, mental torture and frequent physical assaults. The misaaq (the oath of unquestioning obedience to the head priest) which every Bohra is required to give before he or she attains the age of majority, is used as the main instrument for keeping the entire community under the subjugation of the Sayedna and his nominees.
The report further continues:
On the threat of barat (social boycott) and the resulting grave disabilities, Bohras are prevented from reading periodicals which are censored by the Sayedna (such as the Bombay Samachar, The Blitz and the Bohra Bulletin); from establishing charitable institutions like orphanages, dispensaries, libraries etc. without the prior permission of the Sayedna except by submitting to such conditions as he may impose; from contesting elections to municipal and legislative bodies without securing beforehand the blessings of the Sayedna; and above all, from having any social contact with a person subjected to barat, even if the person is one's husband, wife, brother, sister, father or son. The weapon of baraat has been used to compel a husband to divorce his wife, a son to disown his father, a mother to refuse to see her son, and a brother or sister to desist from attending the marriage of his or her sister or brother. An excommunicated member becomes virtually an untouchable in the community, and besides being isolated from his friends and nearest relatives, is unable to attend and offer prayers at the Bohra mosque. Even death does not release him from the taboo, for his dead body is not allowed to be buried at the community's common burial ground.
The Commission could also establish on the basis of oral and documentary evidence that:
Bohra jamaats in India and abroad are not allowed to frame their own rules and regulations, but are subjected to authoritarian constitutions granting absolute power to the Sayedna and his nominees. Millions of rupees are collected every year from Bohras in India and abroad as customary taxes and nazranas by the Sayedna and his nominees, but the Sayedna is not accountable for them to any one. The Sayedna also claims to be owner of all Bohra mosques and the sole trustee of all Bohra trusts, and where the account of any of these trusts are audited, the work is done by a firm composed of some members of the Bohra community who are also bound by the misaaq given by them to the Sayedna.
Thus the inquiry commission headed by Justice Nathwani has presented the true picture of the authoritarian regime of the Sayedna. Thus it can be seen that a minority of reformists within the minority Bohra community are suffering intensely and are denied all the rights guaranteed by the Indian Constitution. It is a typical case of a minority within a minority community being deprived of enjoyment of the fundamental rights. In fact the whole Bohra community also does not enjoy these rights. But a powerful coterie tightly controlled by the family of the bohra high priest, really enjoys these rights and denies the Bohras in general, and reformists in particular, enjoyment of these fundamental rights.
In fact the Bohras themselves are a small minority within the Muslims minority in India and the reformist Bohras are minority within that minority. But the powerful coterie headed by the Sayedna also is adept at maneuvering the leaders of the Muslim minority. The Muslim leaders, instead of sympathising with plight of the reformist Bohras, have always (of course with few honorable exceptions) stood in defence of the Bohra high priest in the name of safeguarding the minority rights. The reformist Bohras are thought to be those who are instrumental in opening the floodgates of governmental interference' in the affairs of minority community. For this fear almost entire Muslim leadership vehemently opposed appointment of Nathwani Commission.
The Commission had made it absolutely clear that they are going to inquire only into the violations of human rights of reformist Bohras at the hands of the Bohra priesthood, and not into their religious beliefs and practices. Some of us also met the top Muslim leadership and tried to explain the situation and even agreed to withdraw from the Nathwani Commission if they have grave apprehensions against it provided they agreed to constitute an inquiry commission themselves to inquire into the allegations of violations of civil liberties and human rights. They did not agree to this request and only insisted on withdrawing of the Commission unconditionally without providing any relief against the authoritarian priestly set-up.
Thus it can be seen that the larger minority suppresses rights of smaller minority within and denies it what it claims for itself. The Article 25 to 30 of the Indian Constitution and particularly Article 25 guarantees the freedom of conscience to all the citizens. However, the reformist Bohras and their supporters cannot enjoy this very vital right. The Sayedna invokes this right for himself even in legal suits, but denies its enjoyment to other Bohras. Unfortunately, even the Supreme Court, in its 1962 judgment, invoked Article 25 for safeguarding the Sayedna's right to excommunicate though at the same time admonishing him to use it judiciously and in a way which will not violate the process of natural justice. (The Sayedna, however, ignoring the Supreme Court directive, continues to use it most arbitrarily).
The reformists have filed a review petition before a larger Bench to get the 1962 judgment reviewed in the light of two inquiry commissions having established the reformist case. Another Commission headed by Justice Tewatia (the retired chief justice of Calcutta high court) examined the continued violations of human rights of the reformist Bohras in the post-Nathwani Commission period and found all allegations to be correct.
There is strong case for devising a mechanism whereby a minority within the minority community is not deprived of enjoyment of all the rights guaranteed in the Indian Constitution. What that device could be is for the constitutional expert to formulate. But the severe persecution of the reformists Bohras and their continued sufferings makes it very urgent. The reformist Bohras are crying for justice. The benefits of the constitutional rights must reach each and every member of the minority community and not only the powerful coteries. The government of India turns a blind eye towards sufferings of minorities with minorities for political reasons. The vote bank politics has its own compulsions as the top priority of the ruling party is to win elections rather than enforce constitutional provisions.
It is important to not that Article 25 is preceded by the qualification subject to public order, morality and health. What the Bohra priesthood is doing is the very negation of this important condition. He is disturbing the public order, morality and health of the society. The very community he heads is going through great turmoil because of the Sayedna's authoritarian ways. It is for the law courts, the Minorities Commission, the National Human Rights Commission and human rights orgainisations and activists to safeguard the rights of minorities with minorities by insisting on proper enforcement of the preceding conditions of the Article 25 ensuring public order, morality and health of society before enforcement of its operative part. This alone seems to be the remedy to safeguard the rights of reformist Bohras.