The Hindu Succession (Amendment) Act, 2005 grants daughters an equal share in the property of Hindu joint families. The Supreme Court was called upon to decide the question of its ‘retrospectivity’; that is, whether daughters born before 2005 could now make claims retrospectively and ask that shares already made out be redrawn. Amidst other more reasonable arguments, it was also suggested to the court that the redrawing of long devolved shares might strain relationships between siblings and that ideas of progressive justice should first be evaluated in terms of their social acceptability. I am told that it was at exactly this point that someone mentioned polygamy and triple talaq amongst the Muslims. It wasn’t quite clear whether the example was meant to add force to the argument that there is a right time for everything, or to cause general anxiety at the lack of reforms. In any case, nobody responded to it then, but it would seem that the honourable court took note.
In its judgement, the court has held the amendments to be prospective, in the sense that succession must not have closed on coming into force of the new law. It would mean that both father and daughter should have been alive on that date. The court’s reasoning is not based on ‘social chaos’ but on a straightforward interpretation of the statute. Quite separately, in the second part of the judgement, the court takes note of the injustice meted out to Muslim women through practices of arbitrary divorce and polygamy, and directs that a PIL be instituted to look into the same.
There is great variety in opinions on the larger matter of the uniform civil code. The liberal left believes that religious laws are generally inequitable to women and must be replaced with ‘gender-just’, constitutionally amenable, secular laws. The liberal right agrees, but additionally finds the shari’a the worst offender while keeping the debate focused on triple talaq and polygamy. Some Muslims react defensively, drawing their own lists of ‘gender inequities’ across religions. Some on the left also react and suggest that the right wing might well hijack the uniform civil code.
Similarly, on the practice of triple talaq there are varying positions. Many who are wary of the unspecified uniform civil code still agree that the triple talaq is both un-Islamic and unconstitutional, and must therefore be declared invalid. In fact, in the Muslim Women’s Quest for Justice case (the PIL directed by the court has been titled thus, if you please), the Bhartiya Muslim Mahila Andolan have taken the stand that the invalidity of triple talaq is established law. That question has already been settled in a plethora of decisions on the ‘correct procedure for triple talaq’. Flavia Agnes too argues that after the Shamim Ara case, the court has laid down that certain procedural formalities have to be fulfilled before the talaq comes into effect, which include the giving of good reasons for seeking a talaq and proof that an effort at reconciliation was made.
There is another position that makes a subtle distinction from the one above. It argues that there is a multiplicity of religious authorities and much debate and dissent within the community. There are different juridical institutions or informal Qazi courts, some of which have formally discarded triple talaq as a principle of shari’a. Thus, even without the push from the secular courts, there have already been internal reforms. Surprisingly, despite their stand in court, the Qazi courts that are supported by the All India Muslim Personal Law Board (AIMPLB) imitate ‘rule of law’ as followed in the secular courts – their decisions are reasoned and often endorsed by the family courts. The rich ethnographies of the Qazi courts researched by scholars like Jeffrey Redding suggest that these courts don’t work in shari’a-induced isolation, but are in constant engagement with the laws and institutions of the country. Moreover, women find agency here and use local Qazi courts in much larger numbers than regular courts, particularly because of the ease of access, lower costs and community enforcement.
There are also those who feel nervous about declaring triple talaq un-Islamic without proper theological confirmation, although everybody seems to agree that even if not prohibited in shari’a, it is a practice that is barely tolerated and carries punishments. People, some within the AIMPLB, negotiate their positions thus: if the practice is undesirable and has carried punishments in Islamic jurisprudence, then it is reasonable to declare it invalid. In any case, the shi’as, as also the much-reviled Wahabis do not endorse it. Advisors have even suggested that if theologically still unsure about triple talaq, one might at least declare all ‘arbitrary talaq’, the phrase used by the court in its order, invalid.
There were all shades of arguments to choose from: it’s been a source of wonderment to me that the AIMPLB should choose the most mean-spirited one. Their primary argument has been that the shari’a is not subject to fundamental rights as guaranteed by the constitution. In their minds, there is absolute certainty about what comprises shari’a, neglecting to see that this debate is actually about what constitutes shari’a and that Muslims in differing locations may have different understanding of that issue.
Their other argument invokes religious freedom under Article 25 and 26 of the constitution. However, pre-empting the ‘essential practices test’, that is, does the practice sought to be protected form an essential religious practice, the board also confirms that these are practices regarded essential. This is turn is followed by an unintelligible and misogynist defence of said practice.
I hold that the board’s position is not a reflection on Indian Muslims. They have devised many imaginative and engaged ways to think through issues. The AIMPLB’s stand is an oddity. Certainly, they were not lacking for good advice, yet they chose the one that closes all possibility of dialogue.
A perspective shared by the parties who are otherwise at opposite ends of a spectrum looks at Muslims as a single, giant monolith – an island unto themselves. They are apparently unaffected by broader political processes. The Hindu right wing and the Muslim upper castes share at least this.
There are also, of course, more reflexive attitudes among Indian Muslims. We understand that historically the ulema have had to mould their positions through a process of constant engagement and negotiation with broader political contexts. The Shari’at (Application) Act, 1937, which makes religious laws applicable to Muslims in matters of personal law was itself a product of such negotiations, not between Muslims and the government but between three different points of view amongst Muslims. Some Muslim women, led by the Begum of Bhopal, had been asking for uniform laws; then there were the zamindars of the Central Provinces, who were politically significant and who insisted on following ‘customs’ in matters pertaining to succession, divorce etc. Their customs were not necessarily a shari’a compliant: for instance, women were not given any share in agricultural land. The ulema advocated a mid-way position, between uniform laws and customs, and suggested shari’a-based reforms. However, they agreed to exempt the sensitive matter of succession vis-à-vis agricultural land, as per the zamindars’ wishes. The Act applies to all matters of personal law except such successions.
Any degree of self-awareness would require that one thinks about these compromises. Even if it chooses to finally defend the triple talaq, the board might at least offer a cogent explanation (if even only to itself) as to why, if it had to make one thing the symbol of its struggle to protect the shari’a, would it choose the triple talaq over the more equitable fight for such exemption of agricultural land to be deleted?
If it could muster even more reflexivity, the AIMPLB would have noticed that there is a disagreement on what constitutes shari’a among Muslims: that people have always employed different hermeneutics to interpret text. While on the one hand, it is the board’s stand that interpretations of the shari’a are outside the pale of judicial powers, it is in fact asking the courts to endorse its own sources and hermeneutics over others. It sees nothing wrong in that. It believes that it is the sole authentic interpretive source of the shari’a, and also that it has the support of most Muslims in holding that belief. That is its hegemonic position.
I hold that the facts speak for themselves: how can the board’s interpretations be regarded as serious ones, let alone the only authentic ones? The corollary, then, is that support may well be dwindling. I equally believe that were the board to show as much respect to all Muslims as it feels is owed it, there might still be some use for it.
Fatima read politics and literature at college, and now works on technology policy and user research at Google in California. Opinions expressed are her own.