Unpopular Opinion: constitution

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.