History and Sociology of MPL

The story of MPL in India cannot be told without recognising the historical trajectories that shaped the Islamic intellectual traditions in South Asia. These traditions did not merely define the moral and ethical foundations of Islamic communities but also determined the nature of a highly diversified phenomenon called Sharia.

This multifaceted process of conversion to Islam, we must remember, is inex­tricably linked to the question of Islamic codes of conduct in the South Asian environment. Sebastian R. Prange’s recent study on the spread of Islam in the Malabar region is good example to illustrate this complex phenomenon.³ Prange notices three forms of conversion that evolved over the years in the Malabar region. There were Pardesi Muslims, especially the Arab merchants, who used to marry local women (particularly from the lower caste communities or untouch­ables). The first Indian Muslims of Malabar, arguably, were the issues of marriages between Arab sea traders and Malayali women.

Prange’s path-breaking study introduces us to an interesting conceptual framework. Without overstretching the dominant (and somewhat conventional!) explanation of syncretism, he stresses those practices, rituals, performances and material transactions that are recognised as Islamic by a group of people in a spe­cific context. It is suggested that Islam must be seen as a historical phenomenon, which always finds concrete expressions as a form of religiosity in a particular time and space.

The colonial encounter with Indian realities played a significant role in the transformation of religious identities. Sudipta Kaviraj’s distinction between fuzzy and enumerated communities is helpful to understand this transformation. He argues that in pre-British India the principles of community construction were very different. These communities were ‘fuzzy’ in two senses: first, the complex sum of different identities, such as caste, village or region, was fuzzy. There wasn’t any overarching community identity available to them that could claim to accommodate all the layers of belongingness. Second, the communities had not been enumerated. Kaviraj points out ‘they [members of these fuzzy communities] would not represent themselves as a large universal collective group... for the very fact of being one, being involved in some action’.⁴ He argues that colonial modernity provided a clearer self-perception to Indian communities through the processes of statistical counting and spatial mapping. Consequently, it became possible to think of a homogeneous community, the exact numbers of its mem­bers, its religious doctrine and its common political interests. This actually led to a new imagination of Muslim collective identity, which I call Muslims as numbers.⁵ The emergence of the idea of MPL in colonial India is an outcome of this enu­merated Muslim identity.

The MPL found a new life in postcolonial India. The idea of minority and the discourse of rights became crucial points of reference in this regard. It is worth noting that the Constitution actually conceives ‘minority’ as an open category to protect the interests of various religious, linguistic and culturally distinctive groups. In this sense there is no possibility to think of Muslims as a permanent minority in the constitutional framework. In fact, one finds two two fundamental principles are invoked to define minority: the impermanency of minority (and for that matter majority!) and the multiplicity of minorities. The first principle very categorically stresses upon the fact that minority, being a numerical expression, cannot be attributed to any particular social group or community.

The first chapter by M.R. Shamshad, Of Statutes and Scriptures: Diversity, Democracy, Personal Laws and Courts, provides an overview of the recent debate on MPL from a legal-historical point of view. This chapter tells us the difference between personal laws and the customary law. Shamshad emphasises the fact that MPL and UCC cannot be discussed by suppressing the sociological diversity and existence of plurality of legal practices. The Constitution of India recognises castes, tribes, sex, region, religion, language, communities, social classes, and many others factors to uphold a pluralistic view of Indian social and legal life. In his view, any effort to move further, and to achieve the goal as set out in Article 44 of the Constitution, cannot be meaningful unless this sociological plurality is recognised.

Werner Menski and Kalindi Kokal’s contribution, Muslim Personal Laws from a Cross-national and Comparative Law Perspective, introduces us to another nuanced perspective. In their opinion, Indian debate on Personal Laws is too simplistic and reductionist in nature. There is a tendency to focus on ‘law and religion’, while identifying theocracy as a major risk. They argue that India’s ‘problems’ with Muslim law, while unique to India, illustrate the tensions between four compet­ing different types of law that must be balanced everywhere, all the time. They introduce the kite methodology of comparative law to include not only state law and modern human rights concerns, but also socio-economic considerations and traditional ethical and religious elements as competing forms of ‘natural law’. This chapter makes an interesting argument that imposing a UCC or banning or criminalisation of certain aspects of Muslim law and practice are not going produce any constructive resolve. A skilfully balanced, constitutionally sound approach needs to maintain freedom of religion while reminding India’s Muslim citizens that they are part of this composite whole with its unique laws. This involves the balancing of competing forms of respect for the basic human need everywhere, and in all communities, to feel connected to certain significant ‘oth­ers’ in responsible modes of interaction.

Abdul Matin’s chapter on Decoding Uniform Civil Code (UCC): A Sociological Analysis, expands the scope of our discussion by emphasising Muslim hetero­geneity. He highlights that fact that, like other social groups, Muslims are also divided on castes lines. They may be comprehended in terms of three hetero­geneous categories of Ashraf (higher castes/nobles), Ajlaf (commoners/lower castes/OBCs) and Atraf (dalits). While Ashrafs had substantial access to economic and non-economic resources, Ajlafs and Atrafs were either excluded from these resources or they had a very limited access to these resources.

Furqan Ahmad examines the idea of MPL from the vantage point of human rights in Chapter 4. Mapping out the debates on MPL and UCC since indepen­dence, this chapter shows how the replacement of personal laws with a Uniform Civil Code is seen as a progressive idea. The reforms in MPL are justified by giv­ing reasons that Muslim Law is not fair towards Muslim women on the ground of human rights, and it is discriminatory. It is further claimed that Muslim Personal Law has no scope for change as it is rigid, so the legislature and judiciary should change it arbitrarily without consulting even a law person of the field and without obtaining any consensus in society in this matter. Ahmad notes that those who are in favor of reform are not bothered whether such reforms would ameliorate the position of Muslim women or cause more problems for them. The chapter makes an effort to discuss major controversial issues pertaining to MPL — such as bigamy, polygamy and triple talaq, which are often targeted in the name of human rights violation of Muslim women. The chapter suggests the techniques that can be used to bring Muslim Personal Law reform within the ambit of human rights.