Arshad Alam, New Age Islam
20 June 2016
Making the Muslim personal law more attuned to the demands of a society which, at least in law, wants to move in the direction of gender equality, is a demand which has been made from time to time.
While conceding that Muslim personal law is discriminatory towards women and hence there is a need for change, the political and intellectual consensus has been that such a change should not come from above, but rather should be an organic demand emanating from within the community itself. Deeply flawed for its complete misreading of the authority structure within Muslim society which prevented alternative political articulations to emerge, this political and intellectual consensus was so hegemonic that it went unchallenged for more than six decades. It almost became the common sense way of thinking about Muslim legal and religious reform.
Looking back, one almost feels that the consensus served the needs of two distinct but inter-related spheres rather well. For both the ruling party (Congress) and its intellectual wing (the Left), the consensus worked to evade any critical talk on Islam and Muslims. The brilliance of the Bhartiya Muslim Mahila Andolan (BMMA) is precisely that it works to shake up this consensus. For the first time, there is an organised effort within the Muslim community to align their personal laws with gender justice. Muslim women themselves are at the forefront of this movement. No longer is it possible to postpone the issue of religious reform within Muslims on the pretext of that illusive voice from within the community; that voice is already here and is asking difficult questions. Not only has the BMMA forced the consensus to sit up and take notice, but more importantly it has also shown how resistant the Muslim religious establishment is to any suggestion of change within the personal law.
This Muslim religious establishment, epitomised by the AIMPLB, is in court in opposition to the reforms proposed by various Muslim women’s groups. There are three main grounds on which they are opposing reforms in the Muslim personal law. All three are bogus arguments.
The first ground is that sharia is divine law and any change within it would mean that we are tinkering with God’s own law. This is ridiculous for the simple reason that sharia is anything but divine. All over, sharia draws upon existing legal and moral codes and has always been the result of application of human mind over what is called the Islamic law. If this was not the case, then it was not possible to amend the sharia is many Muslim majority countries, some of which even calling themselves Islamic.
The second argument is more political: the reforms in question are being opposed because it is considered as advocating uniform civil code. The Ulama are right in saying that there are special provisions in the constitution which gives them the freedom to practice and profess their religion. Therefore, any change within the religion will amount to an interference in matters of religion which should be the domain of community. The problem with this argument is that it is a lie. Muslim women’s groups are not campaigning for a uniform civil code. Their movement is to correct the anomalies between the personal law and the law of the land which grants women a fairer deal in terms of marriage and divorce. The argument that state cannot interfere in matters of religion also is bogus because historically the state has been doing that in the name of health and maintenance of law and order. Moreover, the state had no problems in reforming the grossly unfair Hindu personal law; would the AIMPLB now argue that even that was wrong and that Hindu women should have continued to live under oppressive patriarchal laws from which there was no relief? The argument about state interference is also facile because the fact of the matter is that Muslim women themselves are demanding change and this time it was not initiated by the state.
The third objection has not been spelt out but it’s very clear from the various television debates. To be fair the Ulama agree that triple talaq in one sitting is not the best way to give divorce. However, it seems clear to me that they have a problem with the state doing away with this practice. The courts itself, in the eyes of these Ulama, do not know Islamic law, but the worst fear seems to be that non-Muslim would be sitting in judgment over what is perceived to be a solely Islamic issue. This again is the pernicious exclusivism practiced when it comes to the Muslim religious establishment. This is another example which tells us that Muslim clergy is yet to figure out how to negotiate its place within a secular establishment. It is nonsense to think that the state should always take their side if the state is secular.
Basing arguments on matters of faith again does not lead us anywhere. When the Muslim Ulama argue that personal law is a matter of faith and that no court in India can legislate on matters of faith, it reminds me of the Ram Mandir propaganda when the saviours of Hinduism had raised precisely the same slogan to demolish a mosque. Surely the AIMPLB would not like it when this comparison is made, but there is hardly anything to choose between this self-appointed Muslim body and the champions of Hindutva.
A NewAgeIslam.com columnist, Arshad Alam is a Delhi based writer.
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