Supreme Court's 3:2 majority ruling on triple talaq hasn't clinched debate on reforming Muslim personal laws

The Supreme Court's 3:2 majority decision to strike down triple talaq or talaq-e-biddat, also known as instant talaq, hasn't clinched the debate on the method of reforming personal laws, particularly Muslim Personal Law, about which the nation has been obsessing for decades. This is because only two of the three judges invoked the Constitution to annul triple talaq; the third did it on the ground that talaq-e-biddat is un-Islamic. Thus, the question remains: to what extent can a community's personal laws be altered?

Once the jubilation over the Supreme Court's judgement dies down, it is very likely the debate over Muslim Personal Law will be reopened. For instance, there is already a murmur in social media that the abolition of triple talaq is just a step towards reforming Muslim marriage and divorce laws. In other words, all forms of talaq among Muslims should be rethought and revised.

There are two broad perspectives on the quest to reform Muslim Personal Law. There are those who argue from within the tradition, claiming that practices in violation of the Quranic principles and deemed un-Islamic should be abolished. This was indeed the reason why a substantial segment of the Muslim community, both women and men, favoured the abolition of triple talaq.

talaq

Then, there are those who accord primacy to the Constitution over personal laws of all communities. Their perspective is that those personal laws which are in violation of the Constitution or its principles should be scrapped. For instance, personal laws flouting the ideas of equality and justice, or subscribing to notions of patriarchy, should not be allowed to operate, regardless of whether or not these have divine sanctions.

The first perspective is constituted through the prism of religion; the second through that of the Constitution. The first is a religious view, so to speak. The second is a tad complicated.

A segment subscribing to the second view invokes the principles of equality and gender justice, as also the supremacy of man-made laws over divinely-ordained laws, to demand that Muslim Personal Law should be reformed. Theirs is a secular perspective.

Subscribing to this perspective include a large number of Hindus who do so out of reaction. Their argument is that if Hindu Personal Law could be reformed in the 1950s, albeit with major compromises, (some of which were subsequently removed through judicial pronouncements), why leave Muslim Personal Law untouched? Why should the Indian state allow Muslims to pursue their religious laws in a Hindu majority country, but deny this right to them- the Hindus?

Representational image. Reuters

Representational image. Reuters

It is this Hindu reaction which explains the deep interest, nay obsession, with Muslim Personal Law, evident in the blanket coverage of the Supreme Court's verdict on triple talaq. The judgement doesn't affect them personally, not to the degree the forthcoming verdict on the privacy issue will.

This obsessive engagement with Muslim Personal Law is because of two factors. One, they feel that the appeasement of Muslims has been reversed. Appeasement is the name given to the policy which, among other things, left Muslim Personal Law untouched. Two, they believe that uniformity in governing personal matters - marriage, inheritance, divorce, etc - of religious communities welds the nation together.

These two aspects — appeasement and uniformity — have been popularised courtesy the Hindu Right, particularly the Bharatiya Janata Party in recent decades. The 1985 Shah Bano case was one of the two factors - the other being the Ram Janmabhoomi movement — that fuelled the BJP's rise. You have to be either politically naïve or ideologically blind to believe that the BJP wishes to reform Muslim Personal Law because it cares for the Muslim community and is keen on gender justice.

For instance, in the Uttar Pradesh Assembly elections earlier this year, Prime Minister Narendra Modi spoke of his party being on the side of Muslim women in their battle against triple talaq. Yet he and his party did not hesitate to communally polarise voters, invoking as they did the shamshan ghat-qabristan binaries. Over the last three years, the BJP has launched a belligerent campaign on issues such as cow-slaughter, love jihad, ghar wapsi and abattoirs.

Could a party so pronounced in its opposition to Muslims want to reform their personal laws for their sake? Certainly not. The BJP speaks of reforming Muslim Law Personal only because it knows community leaders will be provoked to take a belligerent stance. This then has the Hindus argue: "if our laws can be changed, why can't those of Muslims. They must be compelled to change." This gives the BJP the opportunity to reap a rich harvest of Hindu votes.

This dynamics was captured exquisitely by the government-appointed Rajinder Sachar Committee, which released a report on social, economic and education status of Muslims in 2005. It said, "To the exclusion of all other aspects of a Muslim woman's life (income, jobs, education, security and even caloric intake), the rules of marriage, right to divorce and maintenance have become the benchmarks of a gender-just existence."

The report said that there was an "obsessive focus" on select cases of gender injustice that Muslim women encounter. This leads to holding their religion as the "sole locus of gender injustice in the community." The report then went on to note, "The civil society and the State locate Muslim women's deprivation not in terms of the 'objective' reality of societal discrimination and faulty development policies, but in the religious-community space. This allows the State to shift the blame to the Community and to absolve itself of neglect."

So it goes still.

Indeed, the BJP's zeal for reforming Muslim Personal Law is precisely why many, particularly in the Left-liberal space, mute themselves on the issue. They feel their support for personal law reforms will eventually get hitched to the BJP's anti-minority politics.

There is also the issue of uniformity - of subjecting all citizens to similar laws on marriage, divorce, inheritance, etc. This has periodically led to demands for a Uniform Civil Code (UCC). Even the Supreme Court, in some cases, have lamented on its absence. Yet nobody knows what the shape of the UCC will be. For instance, will all marriages be solemnized in court and not by priests?

Such a question isn't asked because, once again, it is assumed that since Hindu Personal Law has been reformed to a degree, only the religious minorities will have bear the cost of transiting to the UCC. But uniformity in the reformed Hindu Personal Law is not total, points out Alok Prasanna Kumar, a legal scholar, in a piece in the Economic and Political Weekly.

Kumar noted, "The claim that 'since Hindus are governed by a uniform law, why not everyone else' falls flat at the very first step-the law is not uniform for all Hindus in the first place. While, no doubt, the Hindu code makes several aspects of Hindu personal law uniform, it leaves custom and local practice undisturbed in several aspects."

It isn't necessarily true that the reformed Hindu law is modern. In an interview to this writer, legal luminary Professor Tahir Mahmood pointed out, "Hindu Law is itself not a modern law - it is full of gender- and religion-based discrimination. For instance, if a married Hindu woman were to become a Sikh or Buddhist or Jain, she continues to enjoy all her rights against her husband. But if she were to become Muslim or Christian, she instantly loses all her civil rights. It is a bias of Himalayan proportions."

Mahmood cited another instance of discrimination built into Hindu Law: "Under the Hindu Succession Act, 1956, if a son becomes Muslim or Christian and he dies in the lifetime of his father, then whether the son's children can inherit from their grandfather depends on whether they were born before or after their father's conversion." (https://scroll.in/article/724902/ban-triple-talaq-and-abolish-muslim-personal-law-board-says-former-minorities-commission-chairman)

Whether or not uniformity in personal laws welds the nation together can be debated interminably. But seldom do supporters of UCC speak of uniting the nation by bringing about uniformity in economic and social status. Several surveys have shown that Muslims lag behind other communities on several indices. Their representation in government jobs is below their total population; their education attainment, though having risen sharply over the last 10 years, is only marginally ahead of that of the Scheduled Tribes.

Yet any talk of reservations for the community invites an immediate backlash. Though certain Muslim castes are indeed beneficiaries of affirmative action, their extremely low socio-economic indices have had sociologists favour reservations for the entire community. This is more so as there are moves afoot now to include dominant social groups - Patels, Marathas and Jats - in the list of Other Backward Classes.

This is precisely the point eminent sociologist Satish Deshpande, an expert on class and caste inequalities, made in an interview to this writer. He said, "Muslims undoubtedly qualify for reservation both on the grounds of backwardness and discrimination. It is a form of discrimination we find even hard to acknowledge. This is because as a Hindu majority society, which has become more and more strident about its Hindu-ness in recent years, it is seen as a form of discrimination even if you recognise discrimination [against Muslims]."

Professor Deshpande went on further to note, "The rate of self-employment is by far the highest among Muslims. That can be seen as a proxy for discrimination… This cannot be the most preferred option of any community. They are opting for it because they do not have hope of getting anything else… Though it (the phenomenon of deprivation) is called the Muslim Mind, these are in fact objective criteria that this community, in material sense, is hurting."

But this "hurt" the proponents of reforming personal laws or the UCC, led most vociferously by the BJP, will not talk. They will only speak of the "hurt" Muslim men inflict on women through Muslim Personal Law. Indeed, the BJP's motive for reforming Muslim Personal Law is to tell its supporters that it has done to Muslims what Nehru and the Congress did to Hindus in the 1950s; a case of policy of appeasement being replaced by that of revenge.


Published Date: Aug 23, 2017 03:33 pm | Updated Date: Aug 23, 2017 07:40 pm


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