By Tufail Ahmad, New Age Islam
1 October 2015
On September 3, All India Muslim Personal Law Board, an anti-Quranic organisation that rules over the lives of millions of Indian Muslims, declared: "Though as per Quran and Hadith, 'triple Talaq' is a crime, but once said the process would be considered complete and cannot be changed." The declaration was made by Maulana Abdul Raheem Qureshi, the spokesman of All India Muslim Personal Law, or AIMPLB. It is not clear if Maulana Qureshi has the necessary mental skills to calculate how many days it will take a human to travel to Mars, but he was bold and emphatic: "There is no scope of change in the system."
Over the past decades, the AIMPLB has emerged as anti-equality movement in Indian society's public domain. Under the Indian constitution, every citizen has a fundamental right to equality before the law. The Article 14 of the constitution states: "The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."However, by effectively forcing Muslim husbands to use triple Talaq without recourse to law, the AIMPLB curtails the authority of the Indian constitution.
Since the triple Talaq, delivered in one sitting or in three monthly instalments without recourse to law, violates the Indian constitution, the AIMPLB – or other Muslim organisations such as the All India Muslim Majlis-e-Mushawarat – is essentially unconstitutional from the beginning. It is unconstitutional because such organisations were established with the objective of working against the fundamental rights guaranteed under the constitution. Since its founding in 1973, the AIMPLB has endorsed Sharia courts across India and runs a legal system parallel to the Indian constitution.
In the years since the Independence, a number of non-governmental organisations (NGOs) have emerged that exert outsized impact on the lives of ordinary Indians. The AIMPLB is a privately-owned NGO that rules over the lives of Muslim masses. The ideas propagated by this anti-equality organisation do not fall within the sphere of freedom of speech. Helped by our judges, the AIMPB has crippled the ability of Muslim husbands to resort to courts for marriage and divorce. It batters the equality principle of our age and women's rights.
A vital characteristic of modern civilisation is the growing presence of women in public domain. Every day, more and more women enter our streets, offices and shops. It is becoming easier for a girl to enter a restaurant alone, have a cup of tea and exercise her liberty to walk. But, Islamists like AIMPLB are working to undermine this civilisational trend. By advocating Burqa and triple Talaq, anti-equality Islamist groups threaten the story of our civilisation. If Prophet Muhammad advocated a new civilisation for the Meccans in the 7th century CE, the AIMPLB and its brother organisations are the heretics of modern civilisation, the Kuffar of modern times. Run mostly by Sherwani-clad Islamic clerics, the AIMPLB acts against Muslim communities' progress and practises racism, notably by excluding Ahmadi Muslims from its fold.
It invades the liberty of the Muslim mind. In the coming years, Muslim youths will need to choose leaders who do not wear Sherwani. Whether worn by M.A. Jinnah, Asaduddin Owaisi or Vice President Hamid Ansari, Sherwani is essentially Islamist, a carrier of centuries-old outdated ideas. To enforce inherited ideas, the Aligarh Muslim University requires new students to buy a black Sherwani as part of admission fee. Sherwani does not represent the common Muslim. It is essentially anti-equality, elitist and anti-constitution. Its wearer fails to grasp social realities. As a carrier of ideas, it is a threat to the modernity of our age and an assault on women's equality.
Rethinking the Constitutional Paths for Muslim Reforms
Fortunately, a strong constitutional movement has emerged in India in recent decades. More women and men are becoming aware of their constitutional rights and are willing to defend them for other citizens. The fundamental question is this: how to recover the constitutional equality of our age? For an answer, there is an urgent need to think of new ideas in the following five areas:
1. The Muslim Personal Law (Shariat) Application Act, 1937
Under this law, Indian Muslims can contract marriages and effect divorce through various informal ways deemed correct by local Islamic clerics. A Muslim husband must divorce under this law, which means he cannot go to a court for divorce. He is forced to effect his own divorce through a letter, phone call, video or internet. This 1937 law needs to be replaced by a Universal Bill of Rights for Indian Citizens (Ubric), a new law applicable to all Indians.
Under the 1937 law, there are two ways to effect divorce: first, utter triple Talaq unilaterally, thereby ending the marriage instantly. It is dehumanising for a Muslim husband to go through this. It will be a morally clear path for a Muslim husband to approach a court instead. But his application for divorce is inadmissible. Second, deliver the Talaq in three monthly instalments – a three-month period during which reconciliation can occur. But lawyers advise the path of triple Talaq because if a Muslim husband chooses the second path, he will surely face a dowry harassment case.
2. The Dissolution of Muslim Marriages Act, 1939
This law was written to empower the Muslim women to take, not to give, divorce. Under this law, a Muslim woman can get divorce in two ways: first, she can get the dissolution of her marriage by approaching Islamic clerics; or second, she can get divorce by going to a court against her husband. Since divorce is disliked in Indian society, most Muslim women – instead of filing a case for divorce – choose to first file a dowry harassment case. Both the 1937 and 1939 laws need to be replaced by Ubric.
3. The Muslim Women (Protection of Rights on Divorce) Act, 1986
Under this law, the secular government of Prime Minister Rajiv Gandhi nullified a Supreme Court order to grant alimony to the destitute woman Shah Bano after divorce. This law must be quashed. On this subject, this writer has a viewpoint vastly different from the commonly held view that former husbands should pay for past wives. A more secular approach will be: no husband and wife, whether Muslim or not, should have any links after divorce.
As for the maintenance of divorced wives, new ideas are needed. One idea could be this: insurance companies could offer government-mandated maintenance payments after divorce. Husbands, Muslim or not, should pay the insurance premium during the course of marriage. An insurance premium could be part of a bank account maintenance fee. (Such an innovative idea of an insurance pool was mooted within the context of the Civil Liability for Nuclear Damage Act, 2010. India has already launched a Rs. 1,500-crore national insurance pool for nuclear damages.)
4. Outlaw Islamist Groups That Act Against the Constitutional Ideals
It is obvious that anti-equality Islamist movements like the AIMPLB are carrying out their anti-constitutional activities by registering themselves as trusts, societies and NGOs. Most often, NGOs are a cover for some other work. Islamist organisations such as the AIMPLB and the All India Muslim Majlis-e-Mushawarat, the Jamiat Ulema-e-Hind, Jamaat-e-Islami Hind and the Tablighi Jamaat are also responsible for the excessive role of religion in the life of common people.
In any society, religion has not been a cause of progress. Instead, religion has often been the primary obstacle to the advancement of Muslim communities in every country. Therefore, there is an urgent need to rewrite the colonial-era laws on registration of NGOs so that anti-equality groups are not permitted to function if their teachings violate the ideals of the constitution. The AIMPLB must be de-recognised as an NGO and outlawed by local government officials after a simple administrative verification.
5. Send All Children of 6-14 Years Age to Proper Schools
Under the Indian constitution, all children during6-14 years of age must be in proper schools during school hours of the day, not in madrasas or other religious institutions. Outside the school hours, they can go for religious education. A proper school must match textbooks approved by the Central Board of Secondary Education. This is the only way the Muslim backwardness can be addressed. It is also vital to remove social exclusion of Muslims from Indian society.
Islamic clerics are likely to argue that requiring Muslim children to be in schools will harm their constitutional right to religion. Satya Prakash, the Legal Editor of Hindustan Times, says: of all fundamental rights available under the Indian constitution, the right to religion is an inferior right and is subject to all other fundamental rights. It can also be argued that a right to religion is not a fundamental right before the age of 18. If you can't have sex before 18, there cannot be fundamental right to religion for sexual infants. It is also clear that India's political class lacks a vision for the nation. But a beginning can be made by making youths aware of the obstacles in the nation's path.
Tufail Ahmad is Director of South Asia Studies Project at the Middle East Media Research Institute, Washington DC