There is nothing personal about the Muslim Personal Law. It’s communal, in both the communitarian and the sectarian sense. In fact, it’s not even Islamic, as we will see. It’s about political pragmatism over constitutional idealism, and about a community’s right at the cost of liberty, equality and justice for the female citizen.
The votaries of Muslim Personal Law have never minced words about its purport. For them, it’s an issue of Identity. In essence, it’s another Article 370, whose annulment can’t wait a day longer if the Indian Muslims are to be better integrated in the national mainstream.
The Uniform Civil Code (UCC) is opposed not because it will rob the Muslims of their religion, and make it difficult for them to lead a life of piety according to the tenets of Islam. UCC is opposed because it will make the Muslims just the same as other Indians. It will bring in a legal uniformity that will erase the ideological line of separatism from the communalised consciousness, which views India as a Federation of Religions.
From the very beginning, separatist politics and gender injustice have been intertwined like a double helix. Let’s take a brief detour into the history of The Muslim Personal Law (Shariat) Application Act 1937 to illustrate this point.
The story began in Punjab when a lady of the powerful Tiwana family, who was not given any share in the ancestral property as per the local custom, but claimed her rights under Sharia which sanctioned women a share, albeit half a man’s. To circumvent it, a bill was passed by the Punjab Legislative Assembly in 1931 that sanctioned the custom of primogeniture (giving succession to the first-born male child), which deprived women of any share in inheritance. During debates on the bill, several legislators complained that concessions to custom deprived Muslim women of their legal right to an inheritance as mandated under the Sharia.
Hafiz Abdullah introduced the Muslim Personal Law (Shariat) Bill in the Central Legislative Assembly in an attempt to achieve at the Centre what his peers had failed to accomplish in Punjab.
Muhammad Ali Jinnah saw the Act primarily as an opportunity to craft a unified pan-Indian Muslim agenda out of the divergent interests of Muslims in different regions. He recognised that opposition to the original bill in Punjab grew out of its threat to the region’s rural landlords. Anxious to court this powerful elite, Jinnah pointed out that, under the provisions of the Government of India Act of 1935, the new legislation could not cover agricultural land, and also introduced an amendment that excluded adoption, wills, and legacies.
Thus, Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, reads: Application of Personal Law to Muslims—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
Also read: The AIMPLB is no defender of Muslim Personal Law. It doesn’t even represent all Muslims
In a society where agricultural land constituted 99.5% of all property, the Muslim Personal Law totally deprived the Muslim women of whatever limited rights of inheritance they were sanctioned by Islam. Thus, the Muslim Personal Law has been anti-Islam, besides being anti-women.
The Muslim Personal Law proved to be a double whammy for the Muslim women. First, they were stripped of Sharia-mandated right to inheritance; and second, it legitimised practices like polygamy and arbitrary divorce — things that were frowned upon in the local custom inherited from the Hindu past of the converts.
Politics of Personal Law
The 1937 Act also decided that any progress towards gender justice in the Muslim society would be vetoed as an assault on Islam and the Muslim identity. Henceforward, the basis of Muslim politics would be social regression and self-marginalisation. No wonder since the Dissolution of Muslim Marriages Act 1939, no legislative steps could be taken for the improvement of the condition of Muslim women till, after 80 years, and the first time since Independence, the Narendra Modi government enacted the Muslim Women (Protection of Rights on Marriage) Act 2019 to make punishable the evil practice of Triple Talaq, which had been permitted under the Muslim Personal Law till the Supreme Court outlawed it in 2017. [The Muslim Women (Protection Of Rights On Divorce) Act 1986 was meant to overturn the judgment of the Supreme Court in the Shah Bano Case, which ordered maintenance for a divorced Muslim woman.]
In contrast, the Central Legislative Assembly appointed a Hindu Law Committee in 1941, which embarked on a massive project to codify religious laws. These efforts culminated after Indian Independence in the passage in 1955 and 1956 of major reforms to Hindu marriage, succession, minority status, guardianship, adoption, and maintenance.
The diverging paths of legislative interventions in Muslim and Hindu personal laws in Independent India has been a result of the deleterious effect which the symbolism of Muslim Personal Law came to have in Indian political life. It perverted the nature of Indian secularism. The liberal class equated the protection of Islam and the religious identity of Muslims with the perpetuation of this law. Being the symbol of the separate religio-political identity of Muslims, this law couldn’t be touched. The Muslim Personal Law became the Muslim Privilege Law. It became a citadel for rallying the separatist forces which had gone into temporary disarray after partitioning the country. Identity became the new war cry.
Also read: Constitution framers did not anticipate use of criminal law in reforming Muslim Personal Law
The liberal-secular class developed a vested interest in the Muslim Personal Law. They needed the Muslim vote to counter the challenge of Hindu nationalists. So, they granted a juridical fief to the ulema and the suited-booted, modern-looking Muslim intellectuals who perfected the art of using the constitutional language to camouflage their communal intent. While recognising that Muslim Personal Law was not gender just, the official secularists, who had pushed the Hindu Code Bill down the throats of conservative Hindus, prevaricated on the issue of its reform. They forwarded a disingenuous reasoning: any reform should come from within the Muslim community. No reform could ever come since the Personal Law has been a political, and not a religious or social, issue.
Presently, the biggest resistance to reform in the MPL is anticipated from the liberal-secular establishment. Having lost their relevance and credibility, they are counting on Muslim militancy to restore them to power. And, what better issue to stoke militancy among Muslims than the MPL?
The ulema and other Muslim narrative makers have begun to concede that MPL is not the same as Sharia, and Sharia itself is not divine, but a man-made law. They recognise the need to reform MPL to update it according to the contemporary standards of gender justice. They are aware that many Muslim countries have reformed their family laws to give women a better deal. But, they say that countries like Morocco or Malaysia could do so because they are Muslim countries; whereas India, not being a Muslim country, can’t touch the Sharia. Though, they don’t say this openly, their reasoning stems from the Darul Islam—Darul Harb binary. What they actually imply is that the parliament of a Darul Harb like India can’t legislate in the matters of Sharia.
Why no Sharia in criminal law?
If Sharia, as encapsulated in MPL, were so essential to the righteous living of Muslims, one might wonder why they wouldn’t seek the application of the Muslim criminal law for the Muslim convicts. How about stoning to death for sex outside wedlock? If they don’t, let’s understand that we are discussing politics, not religion.
And, since it is good politics to seek the welfare of citizens, particularly the weaker sections — women being the weaker lot in every society — Muslim Personal Law should be reformed to pave the path for Uniform Civil Code.
The question is, will the government bite the bullet?
Ibn Khaldun Bharati is a student of Islam, and looks at Islamic history from an Indian perspective. He tweets at @IbnKhaldunIndic. Views are personal.
Editor’s Note: We know the writer well and only allow pseudonyms when we do so.
(Edited by Prashant)