Open Essay

After the Talaq

Faisal Devji is reader in Indian History and Fellow of St Antony College at the University of Oxford, where he is also director of the Asian Studies Centre
Page 1 of 1

Muslim personal law in the age of the diminished cleric

THE SUPREME COURT’S Triple Talaq judgment has generally been welcomed by women’s groups and political parties, and even been treated with circumspection by those, like the Jamiat Ulama-e Hind, who have declared their opposition to it. For it is also understood as being a largely symbolic and certainly not revolutionary decision that simply brings India in line with Pakistan, Bangladesh and other Muslim countries as far as Muslim personal law is concerned. Unlike the Shah Bano case of the 1980s, when Muslims protested against the courts granting divorced women alimony by setting aside their personal law, there has been no great mobilisation for or against this issue by anyone.

But everyone also recognises that the judgment’s importance is about precedent. For Muslim seminaries and many ordinary believers, it represents the court’s increasing interference in Islamic law. For BJP supporters as well as those who oppose them, it opens the door to a uniform civil code that might preserve Hindu privileges and eliminate Muslim ones. And for feminists, the judgment is evaluated by how far it advances gender justice. The debate is trapped within legal parlance and focused on the precedent set by the judgment. The case itself is almost irrelevant, with Muslims protesting over Shah Bano then or Triple Talaq now claiming to be worried only about unknown issues in the future.

Given the inoperative character of the law in India, which has little effect on the prevalence of discrimination and violence, why do we invest it with such importance? Surely one reason for the popularity of khap panchayats or caste and village councils, as well as the mediation of religious authorities, is that they deliver speedy, if often arbitrary, decisions. Court justice might be preferable, though relatively few citizens can avail of it due to the law’s cumbersome, lengthy, expensive, and sometimes compromised processes. But this makes our obsession with it even more mystifying. Could it be that this irrational focus on the law in fact betrays the defeat and loss of Muslim politics in India?

Rather than naming a politics, this obsession with law and precedent destroys its possibility. This was true during the Babri Masjid- Ram Janmabhoomi agitation of the early 1990s, when Muslim authorities invoked Sharia to insist upon retaining ownership of the site in Ayodhya claimed by Hindutva supporters as the birthplace of Lord Rama. After the mosque on it was destroyed, they went on to ask the courts for its restoration, even though it was evident that the law had broken down and was unable to protect either the building or indeed Muslim lives. Was it a touching belief in the sanctity of the courts, or a failure of understanding that allowed these men to take the position they did?

Why was the All-India Muslim Personal Law Board (AIMPLB) so insistent on dealing with the Babri Masjid issue as if it was a trial taking place in court? Might they have been able to avoid some of the violence in the run-up and aftermath of the destruction by making a symbolic offering of the building to claim a moral victory and a semblance of political agency—as the Shia Personal Law Board recently suggested decades too late? At the time, such a move may have deflated the crisis and permitted negotiations with real legal import, as during a war when one is on the losing side. That would have been a political act. Instead, a political defeat was dressed up as the possibility of a legal victory, so as to prevent setting a bad precedent in a situation that was in fact already much worse.

Starting with the Shah Bano case, however, the reactive position adopted by Muslim leaders confirmed their roles as interlocutors with the state. This lent them influence among their co-religionists as purveyors of patronage and intercession. But after the General Election of 2014, and again with the assembly polls in UP more recently, it became clear that the BJP could win majorities without Muslim votes, and so the influence of these leaders has ended. The positions they enjoy now serve only private interests, and consequently bear no political character. Controversies over personal law only disguise this situation.

In this context, Muslims are perforce turning to the BJP and indeed Hindutva outfits for support on an individual basis, signalling that the ‘Muslim community’ no longer exists politically even as a vote bank, and can be picked up cheaply, retail or wholesale. In these circumstances, Muslims must think about new strategies for their voices to be heard politically. Perhaps, in an ironical homage to the BJP, they should adopt the party’s policy of consolidation at the provincial level—illustrated by the way in which cow protection is put on the menu for the north and west but not the northeast or southwest.

Personal law and other religious issues allow for the national consolidation of Muslims, but they also play into the hands of others, as became evident with the Shah Bano case and the Babri Masjid-Ram Janmabhoomi controversy. From the moment they become national ones, thanks to the Sangh Parivar, such issues also lead to the superior consolidation of a Hindu majority and the inevitable defeat of Muslim politics. Moreover, they generally end up holding Muslims in different parts of the country hostage to north Indian concerns, and thus shut down political diversity within the community.

Given the inoperative character of the law in India, which has little effect on the prevalence of discrimination and violence, why do we invest it with such importance? Surely one reason for the popularity of khap panchayats or village councils, as well as the mediation of religious authorities, is that they deliver speedy if often arbitrary decisions

North India, especially UP, dominates Muslim issues nationally because it lies at the heart of majoritarian nationalism in the country. The Muslim leadership there is willy-nilly part of this domination, which must be challenged like Indians in the south and east do Hindi’s national claims. For Urdu here is not Hindi’s defeated rival, but a language relied upon to spread UP’s authority among Muslims nationally. The North’s increasing share of the country’s population requires a federalist politics to prevent the destruction of regional diversity among both Hindus and Muslims.

North Indian Muslims are led by upper-caste groups that since colonial times have provided their interlocutors with the state. This ashraf elite and its pet issues—the religion’s personal law chief among them—must be challenged if a new politics is to emerge. For it is a dysfunctional elite, unable even to support its own institutions, turning to Muslims in western and southern India for funding—as with the Gujaratis who now control the Tablighi Jamaat. This sometimes leads to tensions within the community, as when a modernising Gujarati cleric was ousted from the directorship of Darul Uloom in Deoband a few years ago, so that it could return to sharif hands.

But promising new developments are occurring in other parts of the country, from women’s mosques and courts in Tamil Nadu to schools and colleges in Maharashtra, Karnataka and Kerala, and the development of a Muslim women’s movement in Mumbai that was partly responsible for the Triple Talaq judgment. Then there is the expansion of the AIMIM, with its refusal to be dictated to by the north Indian Muslim establishment. While perfectly legitimate, these UP-based institutions should not stifle Muslim political participation in the rest of India.

IF THE OBSESSION with personal law indicates the collapse of Muslim politics, this is illustrated by the negative role it plays in the community, with Muslim authorities and institutions defending it in a purely reactive way. When during the Shah Bano case the Union Government gave in to Muslim protests and legislated against the court’s decision to award her alimony beyond the pittance she had received from her husband as mehr, there was a hope that the community would work towards reforms internally. But nothing happened because debates over personal law illustrate the absence of Muslim politics and therefore any motive for change.

As the feminist lawyer Flavia Agnes points out, it was The Muslim Women (Protection of Rights on Divorce) Act, enacted to mollify Muslim protestors during the Shah Bano case, which inadvertently allowed judges the leeway to require that maintenance be paid by a Muslim husband divorcing his spouse. Yet this lack of internal reform is due not to the apathy or patriarchy of Muslim leaders, but the fact that personal law cannot be defined by ‘civil society’. The Triple Talaq judgment recognises this in noting that the Shariat Application Act of 1937, piloted through the legislature by Mohammad Ali Jinnah, had rendered personal law into a matter decided by elected representatives rather than community leaders.

Rather than representing the state’s undue influence over Islamic law, colonial legislation like the 1937 Act made it possible in India. In pre-colonial times the writ of clerics was limited both by royal statute and the caste or customary regulations that governed the vast majority of Muslims. It was only in urban centres and among a small minority that something resembling Sharia held sway. Its marginal status and colonial origins are demonstrated by the fact that there exist no important seminaries or traditions of legal thinking predating British rule. For colonialism expanded the role of religion in public life by decimating that of India’s political authorities.

It was because the British had removed or divested Indian kings of any authority that they needed new institutions to govern the society they had conquered. In addition to formulating personal laws to serve these ends, the British tolerated the founding of religious institutions as part of a market in which they might buy or sell influence. And it is this marketisation of religious authority that has proven so destructive in fostering communal competition and attempts by religious groups to use the state against their rivals, to say nothing of the state itself soliciting their support in divisive ways.

Personal law and other religious issues allow for the national consolidation of Muslims, but they also play into the hands of others. They generally end up holding Muslims in different parts of the country hostage to north Indian concerns, and thus shut down political diversity within the community

The personal law put in place and spread by colonial rule is called Sharia as a courtesy, since it has dispensed with most of what has traditionally been placed under that name, comprising only rules concerning marriage, divorce, gifts and inheritance. As Anglo-Mohammedan law, moreover, it has always operated according to a different set of rules than Islamic jurisprudence in medieval times. Codified and interpreted by British judges according to the Anglo-Saxon principles of case law, Muslim personal law has little connection with Sharia in its legal reasoning, and has never been in the control of clerics and seminaries.

Even the 1937 Act, which for the first time put all Muslims under the purview of personal law, in order to give women access to property, compromised with customary practices shared by Hindus. Thus agricultural property was excluded from the rules of inheritance, which would have split it up in every generation between numerous heirs including female ones. Furthermore, the Act applied only to those who made a declaration to have their estates governed by it or who died intestate. These loopholes allowed the Act’s sponsor, Jinnah, to disregard Sharia in his own will and pass over his male heirs to make his sister and daughter his chief legatees.

THE MARKETISATION of religion in colonial times resulted in the kind of competition that Indian nationalists attributed to a policy of ‘divide and rule’. Still busy after independence, this market requires regulation in order to disrupt the dynamic of communal conflict, and it is for this reason that the Triple Talaq ruling should be followed by regulating personal law in accordance with the Indian Constitution, including banning polygamy among Hindus and Muslims as inequitable. Such regulation won’t necessarily secure women’s rights, but by acknowledging personal law as a state subject, may de-politicise it and allow room for Muslim political participation along different lines.

This is the reverse of a uniform civil code, a red herring in any case, as it would involve the transformation of Hindu personal law. Will Hindus be willing to accept changes to the status of the Hindu Undivided Family and other legal categories in the name of gender equality? Perhaps only if Muslim personal law is seen as suffering a greater diminution than their own, might the majority of Hindus be willing to accept a civil code in accordance with the logic of market competition. My proposal is meant to offer an acceptable alternative to current arguments for a uniform civil code, in line with the Triple Talaq judgment.

It involves setting up a department to regulate and administer personal laws, one whose officials would be non-political and whose workings are open to public scrutiny. Such regulation already characterises the administration of religious institutions in many Muslim countries. The Turkish Diyanet, for instance, regulates all religious institutions and authorities. In India this is already the case with the funding and administration of the Hajj pilgrimage, and has been so since colonial times, for the good reason that no private organisation can undertake such a massive operation.

Hajj is one of the most important religious obligations of Islam. Yet we never hear of the AIMPLB, the Jamiat Ulama-e Hind or any other body opposing its administration. And just as Hajj is non-controversial for the most part, because it is state regulated, non-sectarian and efficient, so too might personal law become if properly administered by the Government and effectively de-politicised. A secular politics depends upon rejecting the religious market of colonial times and absorbing personal law into the state, to be administered by Muslim officials as Hajj already is.

As with caste reservations, which are constitutional without being part of a uniform code, personal law can be guaranteed by a state that no longer plays the role of a third party in mediating market competition between communities construed as interests. This is what it had done so disastrously during the Babri-Masjid-Ram Janmabhoomi controversy. As with Dalit reservations, Muslim political participation might then be set free. Problems with personal law would therefore involve negotiations with the state and not civil conflict with Hindus.

SIGNIFICANT AS THEY are, our focus on women’s rights to alimony, inheritance and protection from their husbands’ arbitrary authority serves to conceal another important provision of personal law. Unlike the individualised and petty amounts involved in divorce and other issues relating to women’s property, awqaf or charitable trusts represent a massive collection of resources benefiting very large numbers of people. Indeed, the waqf or trust represents the chief and perhaps only pre-colonial form that Islamic law takes in India, yet is rarely the subject of sustained debate or controversy.

Sometimes newspapers run stories about misappropriation of funds from these trusts, the illegal sale or occupation of their properties, and their lack of accountability. Islamic though they may be, these trusts often have secular purposes and are on occasion designed to circumvent the Qur’an. This was true of the colonial dispute over the waqf al-awlad or family trust, meant to prevent the division of estates in every generation. For the British, such a trust violated both Sharia and the definition of charity. But Jinnah finally had it recognised in the Wakf Validating Act of 1913, of which the Hindu Undivided Family serves as an equivalent.

Muslim trusts are already regulated by the state, with little complaint from the defenders of Sharia. But they need to be absorbed within it on the model of the pilgrimage, and professionally administered with audits and financial disclosure. Only in such a way will awqaf be placed on a secure foundation and their assets developed. The returns from these will be deployed as their founders intended, but also to run the department responsible for administering personal law, managing the pilgrimage and the trusts themselves, in addition to mosques, schools, graveyards and other beneficiaries of waqf.

The precedents for this include the British administration of the Oudh Bequest, whose substantial funds were spent in the Shia sacred cities of Najaf and Karbala. Founded by the King of Awadh in 1850, this trust was taken over by the British after the mutiny of 1857, and its funds disbursed into the 20th century in consultation with members of Lucknow’s Shia community. Whether or not the British attempted to use these funds for their political benefit, the Oudh Bequest had an important effect on the development of Shia religious institutions and scholarship in Iraq and even Iran.

MUSLIM PERSONAL LAW has colonial origins and cannot be identified with Sharia. This means that it can be regulated in accordance with the Constitution, as the Triple Talaq judgment does, with Justice Nariman making no attempt to interpret Islamic law. This welcome departure from the bad precedents set by the initial Shah Bano verdict, as well as the Daniyal Latifi and Shamin Ara cases in 2001 and 2002, should set the tone for state intervention. It should not comment on Islamic law but bring it in line with the Constitution while regulating its application along with the pilgrimage and trusts.

Personal law was neither created nor controlled by clerics and seminaries, and so the state should regulate and administer it as done in most Muslim countries. After all, one of Islam’s most important practices, Hajj, has for over a century now been administered by the state, as has one of its most important institutions, the trust. These institutions need to be regulated as well as professionally managed and audited. But such regulation and administration would not be appropriate for privately owned and run Muslim organisations that do not issue legal opinions.

By vesting authority over personal law in the state, it is neutralised, allowing the community to adopt more productive lines of political engagement. This should help regulate the market of communal competition that has bedevilled Hindu- Muslim relations since colonial times. Muslims will also find themselves speaking within rather than outside the state, and without prejudicing the interests of any other community, whose personal laws should be similarly regulated. Placed on a sound basis, Muslim trusts might be capable of improving the quality and extent of their services for Muslims and non- Muslims alike.

Rescued from controversy on the one hand and neglect on the other, Muslim institutions regulated and administered by the state may even flourish. For instance, given India’s size, stability and economic growth, Mumbai can become a hub for Islamic banking, currently dominated by London and Dubai. A well-ordered department managing Muslim institutions would enable the development of Islamic banking for Indian citizens and others in the Middle East and elsewhere. Indian clerics, lawyers and financial specialists could find opportunities in this sector by upgrading their qualifications.

There are many possibilities for the development of Muslim institutions, which can only become realities once they are consolidated administratively. Whatever its faults, my proposal is meant to illustrate one such possibility, prompted by three questions that move the discussion of personal law beyond precedent. How are Muslims to respond to their unprecedented absence from the country’s political life? How can their institutions be salvaged from destruction? And how might we think about these issues in productive rather than reactive ways?