By A.G. Noorani
05 November 2016
“I HAVE no hesitation in saying that the Privy Council have on several occasions absolutely murdered Hindu law and slaughtered Muhammadan law,” Quaid-i-Azam Mohammad Ali Jinnah told British India’s central legislative assembly in February 1925.
Ignorant of Islam, its members relied on English studies of Muslim law. In 1897, it ruled that, “It would be wrong for the courts [in India] to put their own construction on the Quran in opposition to the express ruling of commentators of such great antiquity and high authority”. Thus, the gateway to a Quranic interpretation of the Sharia was shut; commentaries were to prevail.
Courts in Pakistan have rejected this view and have creatively consulted the Quran and hadith. Barring some exceptions, India’s courts did not. In The Reconstruction of Religious Thought in Islam, Allama Iqbal wrote, “In view of the intense conservatism of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the people are moving, the law remains stationary.”
Barely had Indian Muslims resolved their issues, however, when they were confronted with the onslaught of Hindu revivalists, the Jan Sangh and its present successor, the BJP, for over half a century. They made it their business to obliterate Muslim law and replace it with a uniform civil code in order to erase the Muslim community’s identity.
In October 1931, M.K. Gandhi circulated a memorandum for consideration by the minorities committee of the Round Table Conference in London. It categorically stated that “personal laws shall be protected by specific provisions to be enshrined in the constitution”. In a resolution, the Indian National Congress working committee declared that “a minority is entitled to keep its personal law without any change in this respect being imposed by the majority.” In a letter to Jinnah dated April 1938, Congress president Jawaharlal Nehru wrote that his party declared that “it does not wish to interfere in any way with the personal law of any community.”
Nonetheless, these solemn pledges were thrown to the winds soon after Partition. Article 44 of the Indian constitution was enacted by the constituent assembly in December 1948 as a ‘directive principle of state policy’. “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Unlike fundamental rights, directive principles “shall not be enforceable by any court”. Article 37 explicitly creates this bar. Yet, in the last few decades, India’s supreme court has asked why the uniform civil code has not been enacted.
Fears expressed by Muslim members of the 1948 constituent assembly have, in 2016, come true. Recently in Uttar Pradesh, Prime Minister Narendra Modi said that “getting Muslim women their rights as per the constitution is the responsibility of the government and society”. He lamented, “What is the crime of my Muslim sisters when someone says Talaq thrice over the phone and her life is destroyed?” No one was impressed. Modi’s concern for Muslim women was not evident when they and their male relatives were being killed in the 2002 Gujarat pogrom while he was its chief minister.
Uttar Pradesh goes to the polls early next year. Muslims comprise more than one-fifth of the electorate. Modi knows, of course, that Muslims would not be pleased with his remarks. He has set his sights on the Hindu vote. He wants to consolidate the Hindu community along religious lines, cutting across the caste divide that represent the other major political parties.
The same day as Modi’s remarks, a group of Muslim intellectuals led by the distinguished Aligarh historian, Prof Irfan Habib, issued a statement saying that Muslims had “no faith in the sudden found ‘love for women’ and ‘gender justice’” being expressed by members of the ruling party. Nonetheless, they opposed the “instant arbitrary triple Talaq as practised in India” and supported the growing demand of Muslim women to abolish it.
In 1943, Maulana Abul Ala Maududi opined: “[Triple divorce] is an innovation and a sin leading to many legal complications. If people knew that triple divorce is superfluous and even a single Talaq would dissolve the marriage, of course, leaving room for revocation during the next three months and remarriage thereafter, innumerable families could have been saved from disruption.”
Indian Muslims would do well to adopt the rules in Pakistan’s 1961 Muslim Family Laws Ordinance. It provides for an arbitration council to attempt reconciliation and a 90-day period for retraction. Talaq must be pronounced by a notice in writing and communicated to the council’s chairman. The wife can stipulate for the right to divorce in her Nikahnama (Talaq Tafuriz). Additionally, she has the right to dissolve the marriage (Khula).
A liberal Sharia was distorted by the British. Indian Muslims ought to reform the law as the Sharia ordains.
A.G. Noorani is an author and a lawyer based in Mumbai.