Politics of MPL/UCC

The politics of MPL is the second thematic concern of this volume. It is important here to highlight the fact that MPL has been a crucial component of postcolonial Muslim politics.

Nazima Parveen’s chapter Muslim Personal Law and triple talaq: Claims, coun­ter-claims and the media discourse looks at the popular representation of the triple talaq controversy. She examines the claims and counterclaims made by different political actors on three core issues — the practice of instant triple talaq called talaq al-bid'ah, the Muslim Personal Law (MPL) and the Uniform Civil Code (UCC) — and their popular media representations. For the sake of analysis, the chapter divides these claims into two categories: those who support the government’s legal initiatives to ban and criminalise the practice of instant triple talaq (the supporters); and those who oppose the triple talaq bill and criticise the govern­ment for its overt politicisation.

Maidul Islam unpacks the other crucial layers of this debate. It contextual­ises the Supreme Court’s landmark judgment on triple talaq, which defines the practice of instant triple talaq (talaq-e-biddat or heretical and irregular mode of divorce) as unconstitutional. Islam maps out the political trajectory by examin­ing ways in which the central government introduced and passed The Muslim Women (Protection of Rights on Marriage) Bill in December 2017. This chapter analyses the theological, judicial and political discourse that has been part and parcel of the public debates on instant triple talaq in the aftermath of passing the 2017 Bill. Islam suggests that the judicial pronouncement has created a condition for the possibility of reforming Muslim Personal Law in India. In his opinion the principle of punishment for pronouncing instant triple talaq has a precedent in Islamic history. Thus, personal laws can be and must be reformed to address the new contexts, necessities and changing scenarios of the social lives of Indian Muslims. However, the first step towards reforming the Muslim Personal Law will be to create a space of fair dialogue, debates and discussions within the various Muslim communities in India across caste and linguistic differences. It is through dialogue that genuine initiatives must be taken by the progressive sec­tions of Indian Muslims to convince and pursue the conservative sections of the Muslim community in reforming the personal law in general and banning the practice of instant triple talaq in particular.

My chapter, Politics of Shariat in Postcolonial India, investigates the placing of Shariat in the postcolonial Muslim political discourse. Exploring the ways in which constitutionally granted minority rights are identified as potential sources for articulating political arguments and positions, this chapter looks at two con­ceptual questions: (a) What are the forms in which Shariat is represented as a political issue? (b) How do these varied political forms draw legal-constitutional legitimacy? I argue that MPL and UCC are always defined in political terms.

The last two chapters of the book explore the gender question and its rela­tionship with UCC/MPL debates. Misbah Rashid’s chapter, Challenging the Hegemonic Discourse — AIMWPLB and Gender Justice, focuses on the activities of the All-India Muslim Women Personal Law Board (AIMWPLB), a Muslim women’s organisation based in Lucknow. This chapter looks at the involvement ofAIMWPLB in reinterpretation of Islamic laws concerning women. It is shown how these gender-just interpretations of Islam not only challenge the patriar­chal constructions of the Islamic laws by male clergy but also seek reforms of laws within religious boundaries. The Board members as an informal adjudi­cative body interpret Islamic laws of polygamy, divorce and maintenance, and uphold the rights of the women with regard to the cases that approach the Board. The chapter discusses the divergent opinions the Board has with regard to the Muslim Personal Law and All India Muslim Personal Board. Rashid argues that the Muslim positioning to MPL is fragmented, critical and complex along lines of gender and religious ideology. Therefore, it should not be understood as uniform and linear.

Irfan Engineer’s chapter, Gender Equality Should Guide the Process of Reforming Family Laws and Not National Integration, makes a powerful argument in favor of UCC from a very different vantage point. He asserts that what we need is a “Uniform” Civil Code and not “Common” Civil Code. Evoking Ambedkar’s statement in the Constituent Assembly that the UCC need not be enforced on unwilling citizens, Engineer claims that we should march towards a uniform regime of gender-just family laws but also draw from the diverse traditions and allow space for diversity. In his opinion gender equality alone should be guiding this process and the same could be achieved through gradual reforms of existing family laws.

The purpose of this volume is to have an informed academic/public discus­sion on MPL, UCC and legal pluralism in the Indian context.

This report tells us that there is an overwhelming rejection of triple talaq in India (Table 0.1). A significant majority of Indian Muslims (56%) argue that Muslim men should not be allowed to practice this form of divorce. However,

TABLE 0.1 Opinion on the triple talaq issue

% of Indian adults who say Muslim men should be able to divorce their wives by saying ‘talaq’ three times

Source: Religion in India: Tolerance and Segregation, Pew Research Center 2021.

% of adult Muslims who say Muslim men should be able to divorce their wives by saying ‘talaq’ three times

Source: Religion in India: Tolerance and Segregation, Pew Research Center 2021.

TABLE 0.3 Muslim response on triple talaq (region-wise)

% of adult Muslims who say Muslim men should be able to divorce their wives by saying ‘talaq' three times

Source: Religion in India: Tolerance and Segregation, Pew Research Center 2021.

37% of Indian Muslims still support this custom. The repose of Muslim women is also noticeable. A sizeable majority of Muslim women (61%) oppose triple talaq (Table 0.2).

The regional configuration of this Muslim opinion introduces us to a very dif­ferent dimension (Table 0.2). According to this report, triple talaq seems to have significant support among the Muslims of southern and north-eastern regions where more than half of Muslims say that triple talaq should be allowed to con­tinue (58% and 50%, respectively). Interestingly, Muslims living in the north and central India, which are often seen as symbolic centers of Islamic presence, strongly oppose this practice of divorce. For instance, 67% of Muslims in north and 70% in central India are not in favor of it.

The Pew Report also offers us a few crucial findings about the existence of Darul Qaza. One finds a mixed national attitude on this question (Table 0.4). Of Indians, 35% support these courts while 38% clearly reject them. Approximately a quarter of Indians (27%) do not take any position on this issue. On the other hand, a clear majority of Muslims (74%) strongly argue that they should be allowed to have Darul Qaza to resolve civil disputes. Interestingly, the non-Muslim com­munities do not outrightly reject the MPL-driven Muslim community institu­tions. A section of Hindus opposes (41%) this idea, while around 30% of Hindu respondents do not find any problem with it.

These findings, we must note, should not be seen as self-explanatory answers or definite opinion. Survey data does not provide any definite, unambiguous and

% of Indian adults who support allowing Muslims to go to their own religious court to solve family disputes

Source: Religion in India: Tolerance and Segregation, Pew Research Center 2021.

explicit answers to the complex real-life issues; rather a different reading of such information offers us new insights and empowers us to redesign the contours of our intellectual explorations.

MUSLIM PERSONAL LAW AND TRIPLE TALAQ DEBATE: FREQUENTLY USED TERMS

Triple Talaq: a social/religious practice, which empowers a Muslim man to divorce his wife by saying, talaq, in one go.

Mehr is a sum of money or other property to be delivered to the bride by the bridegroom at the time of the Nikaah as a condition precedent for solemnisation of their marriage, as specified in the Nikaahnama.

Iddat is a period of time (approximately three to four months) in which a divorced woman/widow cannot remarry to another man.

Nikah is a contract of marriage between a male and female. Nikahnama is a document that specifies the terms and conditions of this agreement.

Sharia or Shariat is a collection of rules and norms that have been codified following the Quran and Hadiths (sayings and acts of the Prophet Mohammad). Since this codification is subject to various interpretations, there are various shari- ats among sunnis and shias.

Nikah-Halal is also a frequently used term. Once a woman has been divorced, her husband is not permitted take her back as his wife unless the woman under­goes nikah halala, which involves her marriage with another man who subse­quently divorces her so that her previous husband can remarry her.⁹

From our point of view, two important aspects need to be underlined here. First, the triple talaq phenomenon as a Muslim issue has lost its wider acceptability among Muslim communities. Unlike the Shah Bano moment of Indian Muslim politics, the ulema class is not in position to mobilise Muslim masses in the name of Sharia. There is a clear indication that Muslim communities, especially Muslim women, are in favor of a reformed, egalitarian and gender-just frame­work of MPL. This leads us to the second possible inference. The overwhelming Muslim support to Darul Qaza—type community institutions underlines the fact that, like other social groups, Muslim communities do prefer to have consultative mechanisms to solve family/civic disputes.¹⁰ The essays in this volume treat these two preliminary observations/inferences as a point of departure for asking more nuanced questions.

Notes

1 Law Commission of India’s consultation paper on the Reforms of Family Law 2018, accessed July 10, 2020, http://www.lawcommissionofindia.nic.in/reports/ CPonReformFamilyLaw.pdf

2 Richard M Eaton, Eaton, Richard M., “Approaches to the Study of Conversion to Islam in India,” In Approaches to Islam in Religious Studies, ed. Richard C. Martin (New York: One World Press, 1987), 106-23, 11.

3 Sebastian R. Prange, Monsoon Islam: Trade and Faith on the Malabar Coast (Cambridge: Cambridge University Press, 2020).

4 Sudipta, Kaviraj, “On the Construction of Colonial Power: Structure, Discourse, Hegemony,” In Politics in India, ed. Sudipta Kaviraj and Sudipta (Delhi: Oxford University Press, 1997), 141-142.

5 Hilal Ahmed, Siyasi Muslims: A Story of Political Islams in India (New Delhi: Penguin Random House, 2019), 3-28.

6 Peter R de’Souza, Hilal Ahmed and M. Sanjeer Alam, Democratic Accommodations: Minorities in Contemporary India (London and New Delhi: Bloomsbury, 2019).

7 Hilal Ahmed, Muslim Political Discourse in Postcolonial India: Monuments, Memory, Contestation (London and New Delhi: Routledge, 2014), 128.

8 This was a comprehensive in-depth exploration of India’s contemporary religious life. The report is based on interview of 29,999 Indian adults (including 22,975 who identify as Hindu, 3,336 who identify as Muslim, 1,782 who identify as Sikh, 1,011 who identify as Christian, 719 who identify as Buddhist, 109 who identify as Jain and 67 who identify as belonging to another religion or as religiously unaffiliated). Interviews for this nationally representative survey were conducted face to face from November 2019 to March 23, 2020. The questionnaire was developed in English and translated into 16 languages, independently verified by professional linguists with native proficiency in regional dialects. See https://www.pewforum.org/2021/06/29/ religion-in-india-tolerance-and-segregation/(accessed October 22, 2021).

9 Hilal Ahmed, Siyasi Muslims, Op. cit., 126-127.

10 Since the Pew report does not collect information about community institutions of other religious groups, we do not have any comparable data/information in this regard.