India's Supreme Court's alimony order settled a fundamental question—a Muslim woman is Indian first, Muslim later

Ibn Khaldun Bharati in The Print

The spectre of gender justice continues to haunt the identity politics of Indian Muslims. These visitations shall not cease till the fundamental issue of the status of women in Muslim society remains unattended and unresolved.

Let me illustrate this point by citing what happened in the cause célèbre, the 1985 Shah Bano case. A Muslim woman from Indore, Shah Bano Begum, was married to her cousin, Mohammed Ahmad Khan, in 1932. They had five children. Khan became a prosperous advocate and got into polygamy by marrying another cousin of theirs in 1946. In 1975, he threw Shah Bano out of their house. She approached the court to seek maintenance under Section 125 of the Criminal Procedure Code (CrPC). Khan, a successful advocate, was arguing his own case. Upon being questioned by the court why he wouldn’t pay maintenance to the woman who was very much his wife, he pronounced triple talaq on Shah Bano and washed his hands off her. The scandalous story that the talaq happened inside the courtroom and during the proceedings has remained relatively unknown for reasons which could only be guessed.

This anecdote brings into bold relief two important facets that have shaped Muslim politics in India. First, the helplessness of the Muslim woman against arbitrary and unilateral divorce under the sharia law before the Narendra Modi government made triple talaq a criminal offence in 2019; and second, the cavalier attitude and utter disregard for the dignity of the court, with which Khan inflicted triple talaq was reflective of class characteristic that the Muslim ruling class had cultivated over the centuries of their rule.

Whether it be the issue of triple talaq, maintenance to divorced women, or the controversy over hijab, the secular laws, constitutional morality, and progressive judicial pronouncements have been coming up against the wall of antiquated religious laws of Islam that the Muslim identitarians defend as the last bastion against assimilation intothe Indian culture. They have had the phobia of losing their distinction of foreign origin and wouldn’t mind using regressive religious laws to safeguard their separateness. Syed Shahabuddin, their most articulate spokesman had said, “Ours is not a communal fight. It only amounts to resisting the inexorable process of assimilation. We want to keep our religious identity at all costs.”

So, according to its own website, “All India Muslim Personal Law Board was established at a time when then Government of India was trying to subvert Shariah law applicable to Indian Muslims through parallel legislation. Adoption Bill had been tabled in the Parliament. Mr. H.R.Gokhle, then Union Law Minister had termed this Bill as the first step towards Uniform Civil Code.” It was in 1973.

Thus, the 10 July verdict of the Supreme Court, which says that a divorced Muslim woman, like all other women, has a right to maintenance from her ex-husband under Section 125 of CrPC, has settled some issues but, more importantly, has revived many more.

The verdict has settled that Section 125 of CrPC continues to be applicable with regard to divorced Muslim women; and, more importantly, that it remains unaffected by the Muslim Women (Protection of Rights on Divorce) Act 1986.

This is a reiteration of the judgment of the 5-judges bench of the Supreme Court in the Shah Bano case, which said that the Muslim Personal Law couldn’t come in the way of a divorced woman seeking maintenance under Section 125. This law was applicable to all Indians without any discrimination on the basis of religion. It also re-confirms another judgment of the Supreme Court in the Danial Latifi Case, 2001, which upheld the validity of 125 CrPC notwithstanding the Act of 1986 whose overt purport was to nullify the Supreme Court’s judgment in the Shah Bano case.

But beyond all these legal issues, the 10 July verdict has settled a fundamental ideological and constitutional question — that is, a Muslim woman, like all other men and women, is an Indian first and a Muslim later. Therefore, what is hers as an Indian can’t be taken away from her because of her religion. It is a re-statement of her right to equality and justice as envisaged under the Constitution.

It may be recalled that it was on the question of the Muslim-first identity that the Muslim leadership of the 1980s — which wasn’t ideologically much different either from the Muslim League of the 1940s or the identity minoritarians of the 2020s — waged a vicious communal campaign against the jurisdiction of the Supreme Court and the competence of its judges to adjudicate in the matter of Muslim Personal Law. Their objection was religious. They contended that the judges, not being Muslim themselves, lacked the primary qualification to adjudicate in the “sacred” law. Their rhetoric touched such a feverish pitch that a cabinet minister in the Rajiv Gandhi government, Ziaur Rahman Ansari, while speaking in Parliament, used casteist slurs against the judges. Such impunity they had. They eventually succeeded in bending the government to their will. A law was enacted to nullify the Supreme Court’s judgment.

In less than four decades of having won Pakistan, they had struck again. The spectacle of the government with the largest-ever majority, going down in abject capitulation before the dictates of the vote-bank politics, left the entire nation aghast and humiliated. It revived the fear of the return of the barbarians in a country that had just become independent after centuries of foreign rule. No historian can deny that the Shah Bano case was the inadvertent catalyst in the mainstreaming of Hindutva, the ideology of cultural nationalism and political Hinduism. Since this movement crystallised around the Ram Janmabhoomi-Babri Masjid case, the announcement for tabling a Bill in Parliament to overthrow the Supreme Court’s judgment in the Shah Bano case, and the unlocking of the disputed structure at Ayodhya, in early 1986, had such a stamp of choreographed synchronisation that it’s hard to dismiss it as a mere coincidence. It’s undeniable that the government was trying to effect a cynical balancing between the two communities.

What needs an answer, however, is whether the Muslim leadership were a party to this disingenuous deal. Did they give a tacit assent for the unlocking of the disputed structure, and the construction of Ram temple on the site, as a quid pro quo for the massive public victory that the government had handed them? If so, did they renege on the understanding by whipping up emotions and making a mountain out of the Babri mole?

Changed situation

All that was then. Now, no one is surprised at the stoic indifference with which the Muslim leadership has received the 10 July verdict, a reiteration of the 23 April 1985 verdict. The agitation against the earlier judgment had shaken the country, and the repercussions that followed caused a permanent bend in the course of Indian politics. But the situation has changed. Much water has flown in the Ganges since. The nation has become stronger, and its leadership can’t be browbeaten in the manner it was done in 1985-86. The old Muslim leadership has been discredited, and is slowly disappearing. The ubiquitous slogan, Islam-in-danger, has vanished from public discourse. And, though communal fault lines remain, and the ideological issues regarding nationalism are not yet settled, the Muslim community has evolved enough as to not unabashedly uphold regressive religious laws, and challenge a progressive judgment of the Supreme Court by brazenly questioning its authority.

What next?

Now that the Muslim Women (Protection Of Rights On Divorce) Act, 1986, has effectively, if not technically, been read down, shouldn’t it also be taken off the statute to right the wrong that was committed, under communal duress, against both the Muslim woman and the Indian polity? To begin with, this Act was more about politics and less about law. The Muslim communalists had won their first victory after winning Pakistan. They had put the Indian state in its place and taken a decisive step toward securing the state-within-state, which would confirm their rule over the Muslim community, defined by the juridical ghetto of the personal law.

Euphoric with victory, but lacking intellect and acumen, they failed to notice how the conscientious law minister, Ashok Sen, embedded the phraseology that subverted from within the stated purpose of the law. Section 3(a) says, “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.” Thus, the amount for maintenance had to be paid “within the iddat period (three months)” and not only for the said period. The Muslim leadership had taken the community to war with the state to limit the maintenance only to three months. That was the crux of the matter. Their fanatic frenzy was vanquished by the cool conscience of superior wisdom.

Both the operation of this law and the later judgments that it didn’t supersede the CrPC 125 make it superfluous. It should be annulled, and so should be the mother of all such laws, the Muslim Personal Law (Shariat) Application Act, 1937, in fulfilment of the constitutional obligation for the Uniform Civil Code.

Article 44 of the Constitution lays the directive principle: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” In recent times, there have been some important developments, which make the situation conducive for bringing in the UCC.

Since the anti-CAA agitation of 2019-20, the Muslim community has been most effusive in the expression of love for the Constitution. Their public discourse, earlier conducted in religious idiom, is now full of constitutional jargon. Furthermore, the way the INDIA bloc parties made the Constitution the central debating point in the run-up to the recently concluded Lok Sabha election, clearly shows that there is a sincere eagerness to live by the Constitutional ideal and morality. Gender inequality, as institutionalised under the Muslim Personal Law, is clearly against constitutional morality, and therefore, it is hoped that the Muslim leadership and the liberal-secular parties would campaign for the UCC so that such evil practices as polygamy, unilateral and arbitrary divorce, denial of inheritance and property rights, etc., should be abolished in accordance with the moral standards of the Constitution.

The moral influence of the last 10 years of the Modi government has done the groundwork for the UCC. Now it is conceded that Muslim Personal Law is not the same as sharia and, more importantly, sharia is not the divine law. So, it’s not the domain of the ulema. Parliament can legislate and the courts can adjudicate in the matter. With this clarity, one of the emotional barriers to the integration of the Muslim community, the Muslim Personal Law, should be removed. This would be the corollary to the abrogation of Article 370 and precursor to the reform of Aligarh Muslim University.

"There is No Genocide, No Apartheid, No Occupation" in Gaza - Natasha Hausdorff

 

'The Establishment hates Tommy Robinson and favours Islamists'

 

'On Luton and Islamists': Tommy Robinson

 

Asra Nomani - Exposing Islamists

 

A rare consensus on the ban on PFI

 

Iranian and Italian politics explained

 

'Why Muslims have to prove their Loyalty' Arif Aajakia

 

What is the Truth behind the ‘Hijab’ Controversy?

 

Islamists Protests Put Pakistan on the Verge of Collapse

 

An Alternative View - The Gas Attack on Douma, Syria

Robert Fisk in The Independent


This is the story of a town called Douma, a ravaged, stinking place of smashed apartment blocks – and of an underground clinic whose images of suffering allowed three of the Western world’s most powerful nations to bomb Syria last week. There’s even a friendly doctor in a green coat who, when I track him down in the very same clinic, cheerfully tells me that the “gas” videotape which horrified the world – despite all the doubters – is perfectly genuine.

War stories, however, have a habit of growing darker. For the same 58-year old senior Syrian doctor then adds something profoundly uncomfortable: the patients, he says, were overcome not by gas but by oxygen starvation in the rubbish-filled tunnels and basements in which they lived, on a night of wind and heavy shelling that stirred up a dust storm.

As Dr Assim Rahaibani announces this extraordinary conclusion, it is worth observing that he is by his own admission not an eyewitness himself and, as he speaks good English, he refers twice to the jihadi gunmen of Jaish el-Islam [the Army of Islam] in Douma as “terrorists” – the regime’s word for their enemies, and a term used by many people across Syria. Am I hearing this right? Which version of events are we to believe?

By bad luck, too, the doctors who were on duty that night on 7 April were all in Damascus giving evidence to a chemical weapons enquiry, which will be attempting to provide a definitive answer to that question in the coming weeks.

France, meanwhile, has said it has “proof” chemical weapons were used, and US media have quoted sources saying urine and blood tests showed this too. The WHO has said its partners on the ground treated 500 patients “exhibiting signs and symptoms consistent with exposure to toxic chemicals”.

At the same time, inspectors from the Organisation for the Prohibition of Chemical Weapons (OPCW) are currently blocked from coming here to the site of the alleged gas attack themselves, ostensibly because they lacked the correct UN permits.

Before we go any further, readers should be aware that this is not the only story in Douma. There are the many people I talked to amid the ruins of the town who said they had “never believed in” gas stories – which were usually put about, they claimed, by the armed Islamist groups. These particular jihadis survived under a blizzard of shellfire by living in other’s people’s homes and in vast, wide tunnels with underground roads carved through the living rock by prisoners with pick-axes on three levels beneath the town. I walked through three of them yesterday, vast corridors of living rock which still contained Russian – yes, Russian – rockets and burned-out cars.

So the story of Douma is thus not just a story of gas – or no gas, as the case may be. It’s about thousands of people who did not opt for evacuation from Douma on buses that left last week, alongside the gunmen with whom they had to live like troglodytes for months in order to survive. I walked across this town quite freely yesterday without soldier, policeman or minder to haunt my footsteps, just two Syrian friends, a camera and a notebook. I sometimes had to clamber across 20-foot-high ramparts, up and down almost sheer walls of earth. Happy to see foreigners among them, happier still that the siege is finally over, they are mostly smiling; those whose faces you can see, of course, because a surprising number of Douma’s women wear full-length black hijab.

I first drove into Douma as part of an escorted convoy of journalists. But once a boring general had announced outside a wrecked council house “I have no information” – that most helpful rubbish-dump of Arab officialdom – I just walked away. Several other reporters, mostly Syrian, did the same. Even a group of Russian journalists – all in military attire – drifted off.

It was a short walk to Dr Rahaibani. From the door of his subterranean clinic – “Point 200”, it is called, in the weird geology of this partly-underground city – is a corridor leading downhill where he showed me his lowly hospital and the few beds where a small girl was crying as nurses treated a cut above her eye.

“I was with my family in the basement of my home three hundred metres from here on the night but all the doctors know what happened. There was a lot of shelling [by government forces] and aircraft were always over Douma at night – but on this night, there was wind and huge dust clouds began to come into the basements and cellars where people lived. People began to arrive here suffering from hypoxia, oxygen loss. Then someone at the door, a “White Helmet”, shouted “Gas!”, and a panic began. People started throwing water over each other. Yes, the video was filmed here, it is genuine, but what you see are people suffering from hypoxia – not gas poisoning.”

Independent Middle East Correspondent Robert Fisk in one of the miles of tunnels hacked beneath Douma by prisoners of Syrian rebels (Yara Ismail)

Oddly, after chatting to more than 20 people, I couldn’t find one who showed the slightest interest in Douma’s role in bringing about the Western air attacks. Two actually told me they didn’t know about the connection.

But it was a strange world I walked into. Two men, Hussam and Nazir Abu Aishe, said they were unaware how many people had been killed in Douma, although the latter admitted he had a cousin “executed by Jaish el-Islam [the Army of Islam] for allegedly being “close to the regime”. They shrugged when I asked about the 43 people said to have died in the infamous Douma attack.

The White Helmets – the medical first responders already legendary in the West but with some interesting corners to their own story – played a familiar role during the battles. They are partly funded by the Foreign Office and most of the local offices were staffed by Douma men. I found their wrecked offices not far from Dr Rahaibani’s clinic. A gas mask had been left outside a food container with one eye-piece pierced and a pile of dirty military camouflage uniforms lay inside one room. Planted, I asked myself? I doubt it. The place was heaped with capsules, broken medical equipment and files, bedding and mattresses.

Of course we must hear their side of the story, but it will not happen here: a woman told us that every member of the White Helmets in Douma abandoned their main headquarters and chose to take the government-organised and Russian-protected buses to the rebel province of Idlib with the armed groups when the final truce was agreed.

There were food stalls open and a patrol of Russian military policemen – a now optional extra for every Syrian ceasefire – and no-one had even bothered to storm into the forbidding Islamist prison near Martyr’s Square where victims were supposedly beheaded in the basements. The town’s complement of Syrian interior ministry civilian police – who eerily wear military clothes – are watched over by the Russians who may or may not be watched by the civilians. Again, my earnest questions about gas were met with what seemed genuine perplexity. 

How could it be that Douma refugees who had reached camps in Turkey were already describing a gas attack which no-one in Douma today seemed to recall? It did occur to me, once I was walking for more than a mile through these wretched prisoner-groined tunnels, that the citizens of Douma lived so isolated from each other for so long that “news” in our sense of the word simply had no meaning to them. Syria doesn’t cut it as Jeffersonian democracy – as I cynically like to tell my Arab colleagues – and it is indeed a ruthless dictatorship, but that couldn’t cow these people, happy to see foreigners among them, from reacting with a few words of truth. So what were they telling me?

They talked about the Islamists under whom they had lived. They talked about how the armed groups had stolen civilian homes to avoid the Syrian government and Russian bombing. The Jaish el-Islam had burned their offices before they left, but the massive buildings inside the security zones they created had almost all been sandwiched to the ground by air strikes. A Syrian colonel I came across behind one of these buildings asked if I wanted to see how deep the tunnels were. I stopped after well over a mile when he cryptically observed that “this tunnel might reach as far as Britain”. Ah yes, Ms May, I remembered, whose air strikes had been so intimately connected to this place of tunnels and dust. And gas?

Yes, Pakistanis are united against terrorism. But not on terrorists

Militants who target India will always be good Taliban. So an alleged architect of the Mumbai attack can be released two days after Peshawar

• 
• • Cyril Almeida
  • theguardian.com, Thursday 18 December 2014 20.10 GMT

Zaki-ur-Rehman Lakhvi, one of the alleged architects of the 2008 Mumbai attack, has been granted bail days after the horror of Peshawar. Photograph: Reuters

On this Pakistan is united: the men who killed 132 children in a Peshawar school are terrorists. On this too Pakistan is – temporarily – united: terrorism must be defeated. After that the trouble begins. With something as seemingly innocuous as who, exactly, is a terrorist. Pakistanis can’t seem to agree.

Neither can the media. A day after the Peshawar carnage, after the Pakistan army had announced that the slaughter in the school had been operationally coordinated by Afghan-based Pakistani militants, an outraged analyst on local TV asked what the world’s response would have been had India been attacked by militants from Pakistan.

India, the analyst claimed indignantly, would be contemplating bombing Pakistan and the Indian army would already have been mobilised on the Pak-India border. The world at large, the analyst continued, would have pounced on Pakistan for its terrible behaviour. But, the analyst lamented, because Pakistan is weak, it could do no more than send its army chief to Afghanistan and politely seek the Afghan government’s cooperation.

For many in Pakistan, the analyst’s anger would have resonated. His fulminations against the international community’s perceived discrimination against Pakistan would have garnered much sympathy. To much of the outside world, the analyst’s comparison would have triggered incredulity.

For exactly that scenario – Pakistanis slipping into India to mercilessly kill civilians in a major city – had infamously already occurred. In Mumbai. In 2008. Had the TV analyst simply forgotten? Surely not.

But there the analyst was, on one of Pakistan’s most popular news channels, suggesting that the world does not share Pakistan’s pain. Unsaid, though not uncommunicated, was a darker theory: Pakistan is a victim of an international conspiracy, an innocent victim of geopolitics, alone and vulnerable in a Hobbesian world full of militant proxies.

Ultimately, Pakistan’s problem with militancy is not denial. It is not even ignorance. It is something quite different. Simply, it is the widespread belief that militants fighting the Indian state, militants fighting to free “Indian-held Kashmir”, militants fighting the Afghan government and militants fighting to “free” Afghanistan are not militants. They are the good guys. The righteous ones brave enough to take on the world in the name of the one true God.

The problem was never denial. The problem is the paradigm. The Afghan Taliban are not militants. Lashkar-e-Taiba – LeT –are not terrorists. And, even more insidiously, there are those within Pakistan who do not believe that Tehrik-i-Taliban Pakistan is in the wrong.

Instead, the belief is that the Pakistani state itself is on the wrong path. A democratic path. A path that keeps it in thrall to American, godless, anti-Islam interests. A path that takes Pakistan far from that of the religion in the name of which it was ostensibly created.

That’s really why it’s possible for Pakistan to stun the outside world – two days after the horror of Peshawar – by granting bail to one of the alleged architects of the Mumbai attack, Zaki-ur-Rehman Lakhvi of the officially banned LeT. That’s why it’s possible for Pakistan to confound the world by rejecting global sympathy over the Peshawar attack and embracing LeT instead.

The Lakhvi bail is not a surprise. In truth, it is the inexorable outcome of recent events in Pakistan. Consider just what happened in Lahore, the provincial capital of Punjab and the heart of political power in Pakistan, on 4 December.

Imran Khan, the leader of Pakistan Tehreek-e-Insaf (PTI), had been trying to oust the government of Nawaz Sharif via street protests since August, and threatened to shut down Lahore that day. But within hours of Khan’s announcement on 30 November, the PTI appeared to realise it had made a mistake: the Jamaat-ud-Dawa, a hardline Islamist organisation, was holding its annual congress in Lahore on 4 and 5 December. And so the PTI quickly postponed its protest.

Pause on that for a moment. The business of toppling a national, elected government had to take a back seat to the annual Lahore pilgrimage of Hafiz Saeed, the chief of Jamaat-ud-Dawa. It was perhaps inevitable. With the Narendra Modi government in India taking a hawkish line on Pakistan, pro-Kashmir, anti-India jihadis in Pakistan were always going to take centre stage.

There is though at least one thing that Pakistan remains wilfully blind to. Every single one of the militant groups fighting the Pakistani state today was once at some point in recent history considered to be a good militant/good Taliban. Just like Hafiz Saeed is today.