Commentary :: The Aga Khan Case: An Example of the Law’s Role in Religious Identity Formation

By Aleema Jamal

The Khoja Case, also known as the Aga Khan Case, is one of the rare cases profiling the Shīʿī Imāmī Nizārī Ismāʿīlī community (henceforth “Ismāʿīlīs”). Decided in the High Court of Bombay in 1866 by the Honorable Sir Joseph Arnould, this case was brought by a series of Ismāʿīlī plaintiffs who argued that the Ismāʿīlī Community was a Sunnī community, and therefore did not owe allegiance to the Aga Khan as its leader. The Court held that the Ismāʿīlī Community was in fact a Shīʿī community, that the Aga Khan was the authoritative head of the community, and therefore, that he had the right to exercise his traditional modes of authority. The detailed way in which the Court came to its conclusions may have created a more rigid relational identity between the Ismāʿīlīs and other Muslim communities in Colonial India.

The Aga Khan Case, heard in the High Court of Bombay in 1866, is a rare case that publicizes the historical and theological doctrine of Shīʿī Imāmī Nizārī Ismāʿīlī Muslims. In this case, the plaintiffs were members of the Ismāʿīlī community, who placed authority in a secular judicial system to adjudicate the merits of a private matter of the Ismāʿīlī community. In doing so, the Court created a legally sanctioned public narrative about the Ismāʿīlī community, which may have ultimately forced an unnecessary identity formation of the Khoja[1] Ismāʿīlī community in relation to other Muslim communities in Colonial India.

The Shīʿī Imāmī Nizārī Ismāʿīlī Muslims (subsequently referred to as “Ismāʿīlīs”) are the second most numerous Shīʿī community.[2] The Ismāʿīlīs believe that the Prophet’s “comprehensive and all-pervading political and religious authority [was] transmitted to the imams”[3] through naṣṣ, the term used for the concept of divine designation of succession.[4] The Ismāʿīlīs follow seven Imāms, a lineage descending from Imām Ismail, the son of the sixth Imām, Jaʿfar al-Sādiq,[5] and later, Imām Nizār, the son of Imām al-Mustanṣir Billāh a link to whom they believe continues to today. Thus, at the time of the Aga Khan Case, the Ismāʿīlīs believed that the Aga Khan, Hasan Ali Shah, possessed absolute authority over the community as a direct descendent of the Prophet Muhammad.[6] Encompassed in this authority is the ability to make decisions governing religious practices as well as secular matters, such as payment of a tithe, marriage, divorce, and appointment of community leaders.

The Plaintiffs in the Aga Khan Case were members of the Ismāʿīlī community in India who primarily disputed the entitlement to and use of the dashond (tithe), which was paid to the Aga Khan by individual members of the community.[7] They argued from a premise that the Ismāʿīlī community was actually a Sunnī community, and thus, that the Aga Khan should be prevented from interfering with the use of the dashond, the appointment of the religious leaders of the community (mukhis and kamadias), and the carrying out of other functions such as performance of marriage or overseeing divorce.[8]

Despite their focus, the place of traditional Islamic law in these proceedings was somewhat marginal. The above types of activities in most Muslim communities would typically be governed by Islamic ritual law. However, in its legal opinion, the Court did not explicitly reference or draw upon Islamic law. In fact, it did not appear that the Ismāʿīlī community in Colonial India actually had recourse to any formalized system of Islamic Ismāʿīlī or law, or of a communitarian dispute resolution system. Rather, the community was subjected to a mix of different legal systems—Hindu, Sunnī, and Shīʿī—imposed by British colonial courts that laid particular emphasis on custom.[9]

Instead of considering the Islamic law claims directly, the Court ultimately expanded its inquiry to adjudicate broader questions of Ismāʿīlī identity:

What, in their origin, were the religious tenets of the Khojah community, and what from the beginning, has been the nature of their relations, spiritual or temporal, with the ancestors of the first defendant Aga Khan, who, on his part alleged that he is, and that his ancestors in a long line of hereditary descent, have successively been the Imams or spiritual chiefs of the Shia Imamee Ismailis.[10]  

In other words, the Court sought to determine whether the Ismāʿīlī community was Shīʿī or Sunnī, and what was the relationship of the Imām to this community.[11]

Apparently unfamiliar with the Khoja Ismāʿīlīs, the Indian Supreme Court nevertheless found itself competent to adjudicate these matters as part of its wide equity jurisdiction.[12] Throughout its opinion, the Court referred to the tradition and history of the Ismāʿīlī community to support its opinion rather than to doctrines of Islamic law to directly answer the questions raised in the dispute. This shift from Islamic law to Ismāʿīlī identity occurred perhaps because of the absence of a formal Ismāʿīlī legal system in within the community or known to Courts in relation to the Ismāʿīlīs at that time.[13] As the Court explicitly noted, “the Khojas have been in the habit of transmitting, as to their Sirkar Sahib (lord and master) voluntary offerings (zacat) out of religious feeling (dhurm) [emphasis added] to the Imam for the time being of the Ismāʿīlīs, whom they revered.”[14] In this way, the Court’s inquiry was primarily historical and identitarian, recounting detailed events from the time of the Prophet Muhammad’s death to answer broader questions about the religious authority in which this community of Ismāʿīlī Muslims best fit.

The way in which the Court came to its decision raises two points of interest. The first is that the Court developed a pro-Shīʿī narrative with sources primarily provided by the witnesses. And the second is that this full historical narrative did not appear to be necessary for the Court’s final decision. Nevertheless, by pursuing this line of reasoning, the Court contributed to the creation of an external identity for the Ismāʿīlīs in India—which was the very question it ostensibly sought to determine through a question about law. These two points will be addressed in turn.

The Court’s pro-Shīʿī narrative was apparent in its use of strong language when recounting sectarian divides in the early Muslim community (that is, from the seventh century, and afterward). While it seems that the broader historical narrative finds academic support,[15] the Court did not have it at the time, and curiously starts by describing Sunnī Muslims as “orthodox” (which had a negative connotation in colonial India),[16] and Shīʿī Muslims as “persons who are pure from the blood of those members of the family of Ali.”[17] It then notes that the son-in-law and nephew of the Prophet, Ali, was “deeply loved, being clearly and beyond comparison the most heroic of that time fertile in heroes – a man brave and wise, and magnanimous and just…,”[18] and that his sons Ḥassan and Ḥusayn , the grandsons of the Prophet, were “devout and blameless.”[19] This, in contrast to the Court’s characterization of the contemporaneous persons and politics leading the Sunnī community through the Prophet’s wife Aʾisha, who the Court labels a “rancorous enemy”; and this, despite the narrative of the battle of Karbala, which the Court calls the “most pathetic in all history.”[20] Throughout its opinion, the Court cited only a handful of secondary scholarly sources in developing its narrative of Islam, with most evidence provided by witnesses.[21] Some of the secondary sources include books now regarded as poorly sourced, such as Ockley’s History of the Saracens: Dynasty of the Ommeriad’s and Gibbon’s Decline and Fall.[22] The Court referred to the witnesses by number in the following format; “see the evidence of witness No. XIX,” or “the evidence of witness No. XXX, a Suni Mussulman called by the defendants.[23]

Drawing on these sources, the Court uses the history of Islam developed from them to describe the Indian Sunnī community’s celebration of the month of Muḥarram as “ill-managed merriment, with ribald jests, and the coarse antics of mountebanks dressed up in the skins of wild beasts.”[24] This, in contrast to the Shīʿī celebration of the month, which is somber, muted, and does not interfere with police regulations.[25]

In these ways, the Court’s powerful language in crafting its narrative helped solidify a separate identity for each group, and perhaps even exacerbated the separateness of each. In fact, scholars commenting on it have argued that this opinion “distorted and opposed a long running tradition of piety in Gujarat known as the satpanth (the true path) that was much more heterogeneous, fluid, and incongruent with modern religious and sectarian distinctions such as Hindu/Muslim, Sunnī/Shīʿī.”[26]

Secondly, the Court seemed to rest its final decision on three key factors. The first of these is that the Ismāʿīlī community had often adopted Sunnī practices historically through the doctrine of taqiyya,[27] the act of keeping a belief system hidden during times of persecution in order to preserve the community.[28] The second factor is that the dāʿīs, or missionaries, achieved converts to Ismāʿīlīsm by emulating aspects of their converts’ prior faith, which in many cases was Sunnī Islam.[29] The third factor is that the majority opinion internal to the Ismāʿīlī community over time lent itself to a Shīʿī interpretation with allegiance to the Aga Khan as the leader of the community.[30] For the Court, the first two points supported the conclusion that the Khoja community was not Sunnī, even though there may have been instances of documented Sunnī practices among the Ismāʿīlīs, and the third confirmed that the Ismāʿīlīs are in fact Shīʿī, which requires in turn deferring to the authority of the Aga Khan.

These findings do not require the full recounting of the Court’s version of Islamic history together with its implied value judgments. For instance, the notion of taqiyya could have been adequately asserted with a brief overview of the conflicts in the entire Muslim umma (community). The same could be said for the dāʿīs’ practice of conversion. Both could have supported the Court’s conclusion without its one-sided historical narrative. The third argument, that the majority of the Ismāʿīlī community members diverged from Sunnī practices by paying homage to the Imām throughout history, may have been flawed. Although true, it shifted the weight of persuasion to the majority Ismāʿīlī practice, which could have easily diverged from Ismāʿīlī historical practice over time, whereas the very question before the Court concerned a minority challenging the Aga Khan’s authority. By inflating the practices of the majority, the Court under British colonial rule could have been intentionally shaping a narrative for a single Khoja community, although the purpose for doing so is unclear.[31]

Ultimately, the Court’s final decision that the Khoja Ismāʿīlī community is Shīʿī, and that the Aga Khan is the rightful leader of the community, created an external resolution of internal conflicts within the community. The detailed way in which the Court came to its conclusions created a more rigid relational identity between the Ismāʿīlīs and other Muslim communities in Colonial India,[32] through an incomplete, and perhaps even biased framework.

[1] “Khoja” refers to the Shīʿa Imāmī Nizārī Ismāʿīlī community of the Indian subcontinent.

[2] See Farhad Daftary, Shi’i Communities in Historyin The Shi’i World 187 (Farhad Daftary et al. eds., 2015).

[3] See Liyakat N. Takim, The Heirs of the Prophet 24 (2006).

[4] See Daftary, supra note 2, at 187.

[5] See Farhad Daftary, A Short History of the Ismailis: Traditions of a Muslim Community 29-35 (1998).

[6] See Daftary, supra note 2, at 187.

[7] See The Aga Khan Case, (1866) High Court of Bombay (India) at ¶1.

[8] See The Aga Khan Case, at ¶1.

[9] See Carissa Hickling, Disinheriting Daughters: Applying Hindu Laws of Inheritance to the Khoja Muslim Community of Western India, 1847-1937 (master’s thesis, University of Manitoba, 1998) (available at National Library of Canada), at 1-3.

[10] The Aga Khan Case, at ¶2.

[11] The Aga Khan Case, at ¶4-5.

[12] The Aga Khan Case, at ¶6.

[13] See Hickling, supra note 9, at 1-3.

[14] See The Aga Khan Case, at ¶11.

[15] See generally Daftary, supra note 5; see generally Shafique N. Virani, Ismailis in the Middle Ages (2007).

[16] See Karin A. Deutsch, Muslim Women in Colonial North India Circa 1920-1947: Politics, Law, and Community Identity (unpublished dissertation, Darwin College, University of Cambridge, 1998), at 85, 99, 136, 252.

[17] The Aga Khan Case, at ¶8.

[18] The Aga Khan Case, at ¶8.

[19] The Aga Khan Case, at ¶8.

[20] The Aga Khan Case, at ¶8.

[21] See generally The Aga Khan Case.

[22] See, e.g., The Aga Khan Case, at ¶8.

[23] See The Aga Khan Case, at ¶8.

[24] The Aga Khan Case, at ¶8.

[25] See The Aga Khan Case, at ¶8.

[26] Sherali Tareen, Review of: The Aga Khan Case: Religion and Identity in Colonial India, by Tina Purohit, 52 Islamic Stud. 117, 118 (2013).

[27] See The Aga Khan Case, at ¶9.

[28] See Shafique N. Virani, “Taqiyya” and Identity in a South Asian Community, 70 J. of Asian Stud. 99, 102 (2011).

[29] See The Aga Khan Case, at ¶9.

[30] See The Aga Khan Case, at ¶11, 13, 15.

[31] See Ryan Brown, The British Empire in India (unpublished dissertation, Ashland University, 2010),, at 8 (suggesting that appeasing minorities or favoring certain religious groups achieved the political objective of maintaining power pre-colonial India).

[32] See Amrita Shodhan, Review of: The Aga Khan Case: Religion and Identity in Colonial India, by Teena Purohit, 73 Asian Ethnology 314, 314 (2014).

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