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Islamic Sharia Laws ( 26 Jun 2014, NewAgeIslam.Com)

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Muslim Personal Law vs. Uniform Civil Code: 'A Minor Indiscretion'



By Fahad Hashmi, New Age Islam

27 June, 2014

‘Where all think alike, no one thinks very much.’— Walter Lippmann

Markandey Katju’s statement on Muslim Personal Law has stirred up a real hornet's nest of opposition and criticism from religious bodies. This could be sensed in the Urdu press and on social networking sites these days. The usual outcry is coming from the expected quarters. All India Muslim Personal Law Board (AIMPLB) would launch a campaign for enlightening the masses on the peril of Uniform Civil Code (UCC) provided any move is being taken for its imposition. Dawat (7 June, 2014), a bi-weekly mouthpiece of Jamaat-e-Islami of India writes, ‘Katju is unaware of the virtues of Islamic Shariah and the family laws’, a bit further it says, ‘a delegation of Muslim Personal Law Board should meet Justice Markandey Katju and discuss the issue’! There are two sides of this controversy which needs differential treatment.

These religious organisations and their Ulema who often speak on behalf of the community should be honest in accepting that the personal law has its own problematic when it comes to deal with the issues of women, and particularly its asymmetric power equation that structures the relationship between the two sexes. Moreover, these Muslim bodies should take Katju’s criticism in their stride, and squarely come up with answers regarding the shortcomings in the personal law which should stand to reason and logic. Hiding behind the hullaballoo, which is often created by these religious bodies every time the issue of gender justice crops up attest to the religious bodies’ incapacity to come to grips with the issue of gender justice? It needs to be reiterated here that Shariah is a social construct that came into existence at a particular point in time echoing the values of those times. That was then, this is now.

The Shariah calls for reinterpretation in keeping with the spirit of our times which ought to incorporate the notion of gender equality. It is time for getting down to some serious introspection about the personal law, and categorically the place that it gives to women. If the incorporation of the modern ideas of gender justice that emanates from the idea of equality does not appeal to these religious bodies in the conceptualisation, understanding and interpretation of Shariah anew, they could at least see to a few models present in the contemporary Muslim world for ushering in changes.

The Mudawwanah—the new Islamic Family Law— of Morocco is a case in point. This new law was introduced in 2003 there. It has out rightly done away with male’s prerogative of divorce by unilateral repudiation, and has also endowed women with the right to divorce. Moreover, there is no legal place for verbal divorce anymore. Both the spouses have been assigned the joint responsibility of the family. It has also incorporated gender-sensitive terminologies besides a good deal of other changes. Incidentally, all these changes have references from the scriptures. Consideration of Mudawwanah, and people implementing it in their life as an act of apostasy would be an untenable proposition!

What Katju has said about the flaws in the personal law is true, and anybody having a sense of justice would not have a quarrel with it. However, one could not figure it out, how could predicament of a community could be pegged down to the personal laws without taking into account historical, political and economic milieus in which the minority has been living, and the  malleable context of the country where communal violence lurks underneath and crops up every now and then? Thus, the solution suggested for the community’s underdevelopment vis-a-vis the personal law does not make sense as the write-up does not enlighten us on the ways and means through which Uniform Civil Code would solve the ‘backwardness’ of the community once and for all, and thus appears much wide off the mark at the first sight. To add to this, Katju’s blatant plea for the abolishment of personal law presupposes that the entire community subscribes it wholly or even partially.

Though I do not have ready statistics to prove this, however, on the basis of plain observation it could be said that the part of truth is contrary to what personal law possess. Besides these, where do we place a string of voices that has been challenging the patriarchal matrix of the personal law, and pleading for its reconfiguration? What obfuscates the understanding in telling fact from fiction when it comes to minorities is people's essentialist reading.

Katju’s methodology of seeing backwardness in conjunction with the personal law appears patently abrupt! Even if we suppose that a good chunk of population is following the personal law, how does it bear the responsibility for the ‘backwardness’ of the community? This understanding requires a more nuanced approach, and its redressal calls for a differentiated approach. Any community’s underdevelopment is a function of the negligence of state towards its citizens in the modern times. And this becomes quite clear when the conditions of Dalits, Adivasis and Muslims are taken into consideration since Independence. Therefore, the backwardness of the Muslims need to be located in the structural marginalisation as well as structural inequality to which Sachar Committee Report has also attested.

All said and done, now the point is: does Katju believe that the entire Muslim population of India is lagging because of its personal law? The answer is no. Is Katju a Muslim hater? No! No! The only explanation that could be guessed for the transparently dishonest prognosis and its solution is that Mr Katju is too generous with generalisations as well as too ready with stereotypes!

Fahad Hashmi is an M. Phil student at the Department of Sociology, University of Delhi