Minority Identity, Muslim Women Bill Campaign and the Political Process Author(s): Zoya Hasan Reviewed work(s):

Source: Economic and Political Weekly, Vol. 24, No. 1 (Jan. 7, 1989), pp. 44-50 Published by: Economic and Political Weekly Stable URL: http://www.jstor.org/stable/4394220 . Accessed: 08/01/2012 04:47
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Identity, Minority and Campaign

Muslim Women Bill the Political Process

Zoya Hasan

The focus of this paper is on the movement of 1985-86 against the momentous Supreme Court verdict on the grant of maintenance to Shah Bano, a divorced Muslim woman. Who were the chief campaigners, and what ideological spectrum did they represent? Why did their campaign evoke such powerful responses from a wide spectrum of Muslim society? How did Muslim women in general respond to the controversy generated by the Supreme Courtjudgment and the Muslim WomenBill? And, finally, why did the government introduce an amendment which curtailed the rights of Muslim women?
IN recent years, mounting social conflicts and sectarian tension in India has received scholarlyattention.The controconsiderable versies generated by the 'liberation' of the Babri mosque at Ayodhya, the outcry against the Supreme Court verdict in the Shah Bano case, and the alarming rise of separatismin Punjab have brought to the fore the sharpeningof social and sectarian cleavages. In April 1985, India's highest judicial court, the Supreme Court, gave a momentous judgment-the grant of maintenance to Shah Bano, a divorced Muslim woman. Seenas a threatto the IslamicLaw(Shariah), the verdictevoked strong passions and led to a massive agitation among Muslims. Alarmed by its intensity, the government enacted a legislation-the Muslim Women Protection of Rights on Divorce Bill, 1986-to mollify Muslim opinion. But its provisions proved to be retrogressive. Article 14of the Indian constitution which equalitybeforelaw was overruled guarantees by Article 15 which safeguards freedom of religion.Besides,a secularlaw-Section 125 of the Criminal Procedure Code-which maintenanceto indigentwomen guaranteed was amended to exclude Muslim women from its purview. The main focus of the paper is on the movementof 1985-86 against the Supreme Court verdict. Who were the chief campaigners,and what ideological spectrumdid they represent? Why did their campaign evokesuch powerful responses from a wide spectrum of Muslim society? How did Muslim women in general respond to the generatedby the SupremeCourt oontroversy judgment and the Muslim Women Bill? And, finally,why did the governmentintroduce an amendment which curtailed the rights of Muslim women? It is often argued that the resistanceto or 'change' 'reform'is closely linkedwith an overridingconcern to preservethe religioculturalidentity of a religiousminority.But the assertion of one's Muslimness is an option availableto an individual who may articulate,underplayor stress this form of identity.' Identities, in general, are not simply inherited or 'givens' of the social existence;they are shaped and crystallised in a specificpolitical context.2The outcome or of a movement-fundamentalist otherwise 44 -is thus contingent on the social and economic circumstances of a community and the political contextin which it acquires depth of support. In fact, the government's campaign responseto the well-orchestrated againstthe SupremeCourtjudgmentreveals how a political context,combined with a set of political considerations, determine the outcome of many such movements. I In a historic judgment, the Supreme Court ruled that Shah Bano, divorced by her husbandafter 43 yearsof marriage,was entitled to maintenancefrom her husband. Addressingitself primarilyto the issue of whetherthe Muslim Personal Law imposes an obligation upon the husband, the court furtherruledthat a Muslimwoman, unable to support herself, was entitled to take recourseto Section 125of the CriminalProcedure Code which applied to all comof munitiesregardless theirseparatepersonal laws.3In case of a conflict between certain provisionsof the CriminalProcedureCode and the Muslim Personal Law, the former would prevail.4 of This interpretation the MuslimPersonal Law triggeredoff a country-widereaction; in fact, few issues after independence have evoked as strong a reaction among Indian Muslims as the SupremeCourt judgment. Maulana Abul Hasan Nadvi, the president of the All India MuslimPersonalLawBoard (AIMPLB) comparedit to the Khilafatupsurge of the 1920s.5A powerful section of by Muslimopinion, represented the Jamaitul-Ulema-i-Hind, the Jamait-e-Islamiand the MuslimLeaguedenouncedthe judgment and organised a crusade against what they termed as interference in the Muslim PersonalLaw.The main objections wereset out by Yunus Saleem, counsel for the AIMPLB. His agruments were that the Supreme Court had interfered with the MuslimPersonalLaw,on the one hand, and had furthertransgressedits limits by trying to interpret the Quran.6 The Muslim Personal Law, so ran the argument, was based on the Shariah, which is divine and immutable;hence no legislativeor executive could amendor alterits provisions. authority What was conveniently ignored in the debate was the obvious fact that many changes had already come into operation during British rule in India.7 While family and inheritancelaws weregenerallyleft untouched and uncodified, a number of importantlegislationswereenacted from 1827 to 1887whichsought to apply local customs and practices. But such initiatives were vigorouslyopposed by variousMuslimactivist groups who demanded the restoration of Islamic law on the plea that Muslims should be governedby Muslim law and not by any custom which might be to the
contrary.8

took the lead The Jamait-ul-Ulema-Hind in demanding restoration of the Islamic laws. Other groups also plunged into the campaign,for the issue of safeguardingthe sanctityof the Shariahbecamea symbol for representing the Muslim identity.9 For organisations actively involved in the mobilisationof Mulims,it was part of their search for an identity so as to establishthe claims to a status commensurate with its substantial minority position. In fact the demand for restoringthe Muslim Personal Law was turned into a symbol for homogenisingthe communityby emphasisingthe unifying symbols as opposed to the socioeconomic differences which divided the Muslims of India. Though the passing of the ShariatAct in 1937and the Dissolution of MarriagesAct in 1939werehailed at the time as important it initiatives,10 needs to be stated that the pre-independence legislations were not a reformlegislationbut restorationof Islamic law.11The supporters of the Shariat Act claimed that it had furtheredthe interests of womenand unifiedthe communityat the same time. The debate on the reform of Muslim PersonalLawwas intensifiedin the post-independence period. The Muslim change of personal communityhas resis~ted law on the argument that it is an integral part of the socio-religious identity of the community. A section of the Muslim leadershiphas consistently tried to politicise religion as a means of safeguarding the community's separateand distinct identity. Gail Minault has pointedout that the politicalmovements among Muslims in the 1920s used religious to and culturalsymbols which wererelevant all strata of the community.12This was done to fosterthe unityamong the 'believers' January 7, 1989

Economic and Political Weekly

and to enhance their bargainingposition in the constitutional wranglings.In the postindependence period this symbolism has come to rest entirely on laws pertainingto family and women. Invariablywomen are the victims of culturaldistinction, because community identity is defined almost entirelyin terms of family laws which tend to subordinate women. Muslim leaders displayed the dilemma that face a group using symbolic differentiation to promote cohesion because such symbolism, as Karl Marx said on the Jewish question, is not the 'anymore essence of the community but the essence of distinction'. The political value of the issues relating to the MuslimPersonalLaw derivedlargely from its importance in differentiating Muslims from other communities. What is often ignored is that Muslims do not exist in Indian society as separate and isolated entities: they operate within the social structure segments of a composite social as framework.'3 Equally significant is the tendency toward pluralismin matters pertaining to the Shariah. This is true of Muslim societies in different parts of the Islamic world. As Maxine Rodinson remarks: ".one is not dealing with 'Islam',a single coherent doctrine, but with several ideologies, several Islams".'4 Indian Islam is a product of the circumstancesin which it and emerged crystallisedand, in the process, it became necessary to adapt to the indifor genousenvironment. However, the ulema who wereprimarilyconcernedwith Islamic norms, the maintenanceof Muslim identity in a secular society requiredan increasing emphasison the acceptanceof these norms. Adherence the Shariahfor them becomes to the central symbol in the preservation of Muslim identity and an idiom for integration. As a result, there is considerable oppositionto change in family laws, though the communityhas acceptedsecularlegislation on all other matters,including legislation on criminal laws. The Muslim PersonalLaw affects women directlyand adversely.Their position under its provisionsis unequal:a Muslimman can marryfour wives;a woman can be divorced by unilateral pronouncementof tripletalaq, a Muslim daughter inherits only half the shareof the son and a divorcedMuslimwife is not entitled to maintenance. Though polygamy and unilateral divorce were not widespreadas they affected only a small section of the poptilation, maintenance, inheritanceand adoption laws affected all families and women from all classes. It is in this contextthat the SupremeCourtjudgment in favour of maintenance under the Criminal Procedure Code was significant becauseit recognisedthe rights of Muslim women irrespective of personal law. The reason for this is axiomatic, observed the SupremeCourt. Section125is partof the code of Criminal Procedure, of thecivillawswhichdefine not andgovern rightsandobligations the the of Economic and Political Weekly

parties belonging to particularreligions. Section125was enactedin orderto provide remedyto a class of a quickand summary personswho are unableto maintainthemwould it then make selves.Whatdifference as to what is the religionprofessedby the neglectedwife, childrenor parent.Neglect by a personof sufficientmeansto maintain these and the inabilityof these personsto maintainthemselvesare the objectivecriteriawhich determinethe applicabilityof Section125. Such provisions, which are essentially of a prophylacticnature, cut theydo of acrossthe barriers religion.True, law the not supplant personal of the parties, but, equally,the religionprofessedby the partiesor the state of the personallaw by which they are governed,cannot haveany on repercussions the applicabilityof such of withintheframework theconlawsunless, to is stitution,theirapplication restricted a defined category of religious groups or 15 classes. According to the Supreme Court verdict there is no conflict between the provisions of Section 125 and those of the personallaw on the question of a Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself. This conclusion was based on the understandingthat Muslim Personal Law, which limits the husband'sliability to provide maintenance for the period of iddat, does not countenancethe situation of destitution envisaged by Section 125.16

paign launched by right wing organisations to represent and protect fundamentalist causes such as the liberation of the Babri mosque in Ayodhya. The intrusionof religioninto politics has remained unchanged in Rajiv Gandhi regime.Innumerableexamplescan be listed to demonstrate the mixing of religion and politics. Over the years, the Congress has taken over the role of the protector of majority interests, a fact which has encouraged the RSS to extend its support to the Congress. The deteriorating economic conditionsof Muslims, aggravatedby systematic neglect and discriminationhas made large sections of Muslims receptive to fundamentalist pressures.20The causes of the economic decline of Muslims are debatable,but there is no denying that they representa picture of enormous underemployment.21 Their problemsare compoundedby the abandonment of Urdu which is why they find it difficult to compete for governmentposts, and that communal riots have occurredin towns where they have attained a measure of economic well-being. This has been the patternin Aligarh, Bhiwandi,Ahmedabad, Meerutand Moradabad.In these towns the Hindu petty bourgeoisie, with the backing of militant organisations, has whipped up communal fervour against Muslims to displace Muslimentrepreneurs either to reduce competition in crucial trades or to acquire land abandoned by poor Muslims fleeing from communal violence.22"Hindus tend II to raise their eyebrowsat the assertion of Conservative Muslim opinion was in- equal status by a community they are used censed by the verdict. Among the conser- to look down upon as their inferiors in the vativesections, the Personal Lawlobby was post-independenceera" concludes a report the most pronounced in berating the Shah on the Delhi riots in May 1987.23 Bano judgment. However,the Shah Bano Economicinstabilityand communal riots verdict was not the first one to grant werenot entirelyabsentin the Nehruperiod. maintenancerights to Muslim women. Two Whatmarkedout the post-Nehruperiodwas important judgmentsby JusticeKrishnaIyer the breakdown of the secular consensus in the Tahira Bai v Ali H usain Fiduli mouldedby Nehru. In the event, the leading Chothia and Fazlunbiv KhaderAli cases in ruling class party was apprehensivethat its the 1970s granted maintenance to Muslim close identificationwith the minoritiesbore women under Section 125. Likewisein 1984 the risk of alienating many of their constithe MadrasHigh Court conferredmonthly tuents.IndiraGandhiwas quick to learnthis maintenanceto a Muslim woman.'7 None lesson when she talkedof a Hindu backlash of these judgments evokedany protest.The against any further pampering of the Shah Bano verdict,on the other hand, pro- minorities. For their part, Muslims had vokedan outcryof massiveprotest.Why did begun to drift away from the Congress in this happen? states like Kashmir, Uttar Pradesh, Bihar To understandthe success of the funda- and WestBengal. In Bihar and UP the Lok mentalistupsurgewe should begin by look- Dal carved out victories in the. Musliming at the nature and character of inter- dominated constituencies. This weakening communal relations in the 1980s. The last of Congress support created a political which was exploitedby the Muslim phase of the IndiraGandhiera witnessedan vacuium spurtin religiousfervourand fundamentalist leadership to assert its unprecedented a markedpolarisation of Indian society on primacyin the community.Capitalisingon communaland sectarianlines. Nearly 4000 the frequent riots and the discrimination people were killed in communal violence.'8 against Muslims in employment, some Muslimsorganisations Equally significant has been the growth communally-oriented of communal organisations; there are sought to broaden their support base by over 500 militant organisations with an harping on government failure to control active membershipwhich runs into several violence and its ability to satisfy the fears millions.19All these bodies combined with of the minorities. Such fears helpedthe rise in and VishwaHindu Parishad the ViratHindu of Jamaat-i-Islami Kashmir, Itehadul the Sammelanare in the forefront of the cam- Muslimeenin Hyderabadand severalother 45

January 7, 1989

bodies in northern India. The furoreover the Shah Bano judgment was compounded by the manner in which the verdictwas framed.The previousjudgment by JusticeKrishnaIyer was structured in the frameworkof social justice; by contrast,JusticeChandrachud's judgmentin the Shah Bano case was located in the terrain of Muslim Personal Law.In fact, the judgment made repeated reference to Muslim PersonalLaw and Islam: 'undoubtedly,the Muslim husband enjoys the privilege of being able to discard his wife wheneverhe chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all.24 The issue was definel exclusivelyin terms of Personal Law. As a result, the debate focused on the interpretation of Muslim' Law.Thiswasnot all. Chandrachud's critical comments on Muslim Personal Law were greatlyresentedby the ulema who condemned the judgment as an attempt to undermine the Personal Law of Muslims.25 Behind the diatribe lurked the fear that if secularlaws prevailedover religiouslaws, it wouldopen the way for courts to modify the Personal Law which would weaken their strangleholdover the.Muslim masses. The SupremeCourtjudgmentin the Shah Bano case provided the custodians of minority identitya muchneededopportunity to projecttheir leadershipand to emphasise the distinctiveidentity of the Muslim community.The controversysparkedoff by the Shah Bano judgment injected life into Muslim organisations which were literally of starved action. Forthe first time afterpartition the political balance shifted in their favour as they were allowed to take the initiative in articulating the grievancesof Muslims.Many of these organisations-the Muslim Majlis Mushawarat, the Muslim Personal LawBoard,the MuslimLeague, the JamaatIslami, the AwamiAction Committee and Jamait-ul-Ulema-i-Hind-widened their sphere of influence by mobilising Muslimopinion againstthe SupremeCourt judgment. Spearheaded by the All India Muslim PersonalBoard, the fundamentalistscriticised the judgment as an assault on the Shariah. The principal argument put forward that the Shariah made no prowas vision for maintenance in the event of divorce.The written statementpreparedby editor of MuslimIndia, SyedShahabuddin, and submitted by the AIMPLB to the Supreme Court, argued that the Muslim Personal Lawalloweda reasonablequantum of maintenance, though the period was limited to three months of Iddat.26"The essencelies in that Mata has no connotation of recurrence maintenancehas".2"Thus, as absolvingthe husbandof all responsibilities towards his wife, the crusaders of Islam insisted that the *divorceed woman could claimmaintenance from her paternalfamily ratherthan from her former husband. Though a large number of Muslim organisationswereinvolvedin whippingup fundamentalistsentiments, the campaign 46

failed to gain popular support in the first phase of the movement which focused on the issuesof maintenancerights for women. The movementgained momentum towards the end of 1985whenthe focus of the debate was shifted from the relativelyminor issues of maintenance rights for women to the muchlargerissue of the statusof the Muslini minority and its right to exist as a religious community in a secular society. A crucial issue was how the judgment should be linked to the Islamic framework. For the ulema there was no ambiguity that the acceptance of the provisions of the CriminalProcedureCode would affect the practice of Islam. For the politicians, however, crucialissue was how the practhe tice of Islamcould be linkedto the assumption of community. Because the leadership in this movementwas dominatedby conservative leaders, the relationship between Islamicidentity and communitywas atriculated in an essentiallyreligiousdiscourse.A joint statementof six Muslin organisations fused the religious and political link by expressingthe fear that "forces inimical to the Muslim community shall use this judgment as the thin end of the wedge for securing the extinction of the Muslim Personal Law and its substitutionby a common civil code".28Thus in the second phase of the campaigncommunityidentity had takenon a reality which was expressed in an idiom drawingheavily on religious symbols. This processof communitydefinitionhad important political repercussions.In April 1985, G M Banatwala,a Muslim Leaguemember from Kerala, introduced a private bill in parliamentto ensurethe continuanceof the regimeof Personal Law.29 "The talk of the uniformcivil code is an attack on the traditional spirit of tolerance and secular ideals'30MinatullahRehmani,secretaryof the All India Muslim Personal Law Board, explicitly demanded that the government should nullify the judgment by reiterating its commitment to uphold the Muslim Personal Law. Echoing Rajiv Gandhi's discourses on national integration and secularism,Rehmaniarguedthat "national integrationand secularismwould be strengthened when every religious denomination feels religiouslysecureand satisfied".3' The AIMPLB warned the governmentthat "it would be unwiseand againstthe interestsof nationalunity to arousefearsand apprehensions and to create a sense of religious

in the Muslim p5ersonal Law".34 'Muslim Personal Law is in danger','Shariahis our religiousright, we will die to protectit, were some of the slogans that helped to mobilise Muslimsat numerouspublic meetingsheld in the course of the Shariah week launched in October 1985.35 The campaign. culminated in the observation of the All India Shariah Day, which was markedby street corner meetings and demonstrations to condemn the Supreme Court's trespass into a field out of bounds for it. Syed Shahabuddin,a key figurein the campaign, gave expressionto the common perception that the judgment had inflamed Muslim passions because the Supreme Court had called for a common civil code mentioned in Article 14 and had thus "arrogatedto itself the function of the legislature'.36 One of the most striking aspects of the movement was the unity displayed by the principalprotagonistsof religious identity, who wereotherwise opposed to each other on fundamentaldoctrinal matters.37 These were the Jamaat-i-Islami,founded in 1941 by Abul Ala Mawdudidi createa stateand to society based upon Islamic identity; the Jamaiyat-al-ulema connectedwith the Daral-uloom at Deoband and the All India MuslimPersonal LawBoard, establishedin 1974. The basic aim of these groups after independence has been to oppose any change in the PersonalLaw arguingthat it will be only "the first step in the direction of erasing enemy symbol -of a separate Muslim culture in India".38 The symbolic focus on MuslimPersonalLaw provided the public setting in which it became necessary to underplaythe differencesin doctrine in order to safeguard Personal Law, the only permanent guaranteefor the preservation of Muslim identity. Moreover, though the perceptionsof the significantissues concerning the status of the minority were not identical,they did overlapinsofaras keeping intact the sanctity of the law was concerned.39 Regional and class divisions were underplayed, because the ulema, the members the MuslimPersonalLawBoard of and the leadersof the Muslim Leaguecame from different regions to participate in actions in defence of issues concerningthe. came supposedIslamicidentity.Perceptions to be expressed by a shared vocabulary emphasising symbols of Shariah and Muslim Personal Law as the emblem of Muslim identity. insecurity".32 Thereis no doubt that many urban-based From city streets afid mosques, the Muslim groups were apprehensivethat the maulvis and communal-mindedpoliticians verdicton the Shah Bano case violated the harpedon the fear that the SupremeCourt basic canons of Islam, a fear reinforcedby verdict was "a death warrant of Muslim the AIMPLB agitation which stirred the emotions by an obfuscation of the central identityin Hindu India".33 Sidetracking issue of Muslim women'srights, the move- issue of women's rights and instead an ment concentrated attention on the im- emphasis on minority rights. This process needto protectthe MuslimPersonal of transfer and displacement profoundly perative in Law.Muslimorganisations UttarPradesh, affected the political discourse, because it AndhraPradeshand Kerala raisedmisgivings regardingminority status Bihar,Kashmir, were pressedinto service by the clergy and and minorityspace in a secularsociety.The conservative leadersto rouseMuslimmasses discourse of maintenancemoved out from against what they dubbed as "interference the law courts to the public setting, where Economic and Political Weekly January 7, 1989

questionswereraisedabout the futureof the Muslim Personal LawY0 The emphasis on identity was furtherreinforced by the enthusiasticsupport extended by Hindu organisations to the Shah Bano judgment. In the minds of many Muslims, this scenariocreatedthe fear that a change of personallaw was being demanded by the detractors the community.The of petition by Shahnaz Sheikh, a Muslim woman from Bombay, challenging the validity of the Muslim Personal Law under Article 14and the Shah Bano judgmentwas interpreted vestedinterestsas an attempt by by the Indianstateto impose a uniformcivil code.4' To counter such an interventionary threat,the cry of 'Islamin danger'was raised from within the community to mobilise Muslims against 'outside protection' of Muslim women.

1X1
Amidst growingcontroversies, Indian the governmentdecided to seize the initiative. Its intervention basedon the assumption was that most Muslims resented the Supreme Court verdict,viewingit as a threatto their religious identity. But the Muslim community was divided on the issue. Large numbers of Muslims saw no conflict between the Supreme Court verdict and the Islamicprinciples.More significantly,large numbersof Muslimwomenwereunaffected by the fundamentalisttide. Many of them supported the demand for maintenance rights provided under the Criminal ProcedureCode.42Initially,many women were no doubt unawareof the maintenanceissue, but the blitz against the Supreme Court judgmentmade them consciousof the issues involved in the debate. Muslim women's groupsin Kerala,WestBengal, Bombayand Delhi reaffirmed the right of an indigent womanto be supportedby her husband,and deridedthe mullahs for turningreligioninto an instrumentof injustice.Muslim women in Calcutta,Trivandrum, Patnaand Bombay condemned the AIMPLB call for a bandh to mark the Shariat Day on October 4, 1985.43 The formation of the Committee for the Protectionof the Rightsof Muslim Women in Calcutta, Trivandrumand Delhi gave organised expression such sentiments. to The committee organised public meetings and conventions differentparts of the country in to highlighttheissueof women'srights,submitted memoranda to the prime minister emphasisingthe need to protect all sections of the minorities,particularlywomen."4 Its chief concern was to safeguard the rights guaranteedby the Indian constitution. An important part of the committee's efforts was to locate Muslim women within the socialdomain and in the contextof the community of womnen. was pointed out that It thoughlawsrelatingto marriageand divorce frompart of the civil law, maintenancewas included in criminal law to prent a divorced woman from becominga destitute. Moreover,Section 125 of the CrPC was a Economic and Political Weekly

mildprovision.Underit a magistrate ask can a husbandto provideup to Rs 500 a month for maintenance of his wife, provided the husbandhas sufficient means and the wife is "unable to maintain herself'. What was lost in the heat of the controversywas the fact that Section 125 of the CrPC did not pertainto personal law but to vagrancyand preventionof destitution. The stirringsof protestby Muslimwomen werereinforcedby the voice of dissent from within the Muslim intelligentsia.Important sections of enlightenedand liberal Muslim opinion, drawnfrom the educated and professional classes, signed a memorandum demandingthe preservationof the right of a divorcedMuslim woman to claim maintenance from her former husband.45 The list of signatories includedseveralacademicians, writers, journalists, bureaucFats, poets, painters, theatre and film personalities. Likewise distinguished experts in, Shariah laws like M H Beg, Murtuza Fazal Ali. Beharul Islam, S A Mastfd, Danial Latifi and A G Noorani defended the rights of Muslimwomen. JusticeM H Beg, chairman of the Minorities Commission, stated that granting maintenance to Muslim women under Section 125 of the CrPC "did not interfere in any way with the Muslim Personal Law".46 And those pho say anythingto the contrary"neitherknow the Quran, nor the Muslim Personal Law nor equality nor justice, nor the obligation of the Indian citizen under the constitution". Asghar Ali Engineer,a Bombay-basedactivist for social reforms,summed up the case of those who favouredchange:"givingmore than what is stipulated by the jurists is no violation of the Shariah or the injunctions
of the Quran'.47

initiated several moves to assuage Muslim

feelings. Me-mbers the All India Muslim of Personal Law Board were summoned to Deihi for consultation. Ali Mian, the alim of the LucknowSeminary,Nadvatal-ulma, was assidously cultivated, while the prime minsiterfound timeto attendthe All-Momin conferenceand to assure his audience that the Muslim Personal Law will not be modified or altered.49In May 1986 the Muslim Women (Protection of Rights on Divorce) Bill, 1985 was introduced in parliament. The Bill condemned Muslim women to the statusof second class citizensby denying them the option to avail of Section 125 of the CrPC. It incorporatedthe argumentsof the AIMPLB and the Muslim League that a woman'snatal familyshould maintainher afterher divorceand not the husbandas she has ceased to be his wife. It provided that the inheritors of her property would be responsible for her maintenance in accordance with the property to be inherited, without fixing the amountof propertyto be inherited the divorced by woman. Significant provisionsof the bill introduced in parliament included:
Where a Muslim divorced woman is

Their forceful articulation refuted the claims of Muslim leaders that the community was unanimously opposedl to the SupremeCourt verdictin favour of maintenance. It also showed that the sentiments and feelin.gs aroused by the fundamentalist movement were not uniform or purely religious;they werecontingenton the social circumstancesof the community and were very greatlyinspiredby the fundamentalist movement.What startedas an expression of Muslimfeelingsand misgivingsacquired the shape of significant sentiments only as a resultof the intervention specificpolitical of processesand developmentsin the political arena. To begin with, the CongressPary and the governmentwelcomed the Supreme Court verdict granting maintenance to Muslim women.Arif MohammedKhan, ministerof state for home in the union cabiiet, said so. He had the backing of the overwhelming majority of the membersof parliamentincluding the prime ministerwho congratulated him for his "excellentspeech'"denouncing the BanatwalaBill in parliament.4 But the defeat of the CongressParty in the byelections in December 1985led the government to execute a volte face. Fearful of further electoral reverses,the government

unableto maintainherselfafter the period when approached of iddat, the magistrate, may make an order for the paymentof who wouldbe maintenance her relatives by on entitledto inheritherproperty herdeath to in according MuslimLawin Proportions whichthey would inherither property. is If any of such relatives unableto pay heror hershareon the groundof his or her not havingthe meansto pay the sharesof these relativesalso. But where a divorced woman has no or relatives any one of themhas not enough meansto pay the maintenance the other or
relatives who have been asked to pay the

shares of the defaulting relatives, the wouldorder StateWakfBoard the magistrate to pay the maintenance orderedby him on the sharesof the relatives who areunableto pay. The Muslim Women Bill was widely criticised. Even those Muslims who were dissatisfied with the Supreme Court judgA ment dis'approved. significant section of Muslims were of the view that a woman should have the option to be governed by their personal law or by the provisions of the civil code on maintenance.The right to maintenance was in consonance with the prevailing family laws in a number of Muslim countries which had modernised family laws. The right to maintenancewas available to women in Morocco, Thrkey, Iraq, Egypt, Libiya, Tunisia, Syria and Algeria. In sharp contrast Indian Muslim women were forced to depend on relatives and Wakf Boards for support. Howeverit is well known that the majority of Wakf Boards in UP and Bihar are either financially bankrupt or under the control of vested interests reluctant to provide maintenanceto divorcedwomen. As for the responsibilityof the natal family, the pro47

January 7, 1989

visions of the bill would give rise to tension between a woman and her own family in case she is forced to go to court to avail of her maintenancefrom them. The most contentious aspect of the legislation was the transfer the conceptof maintenancefrom of the purviewof criminaland civil law to the domain of Personal Law. As a result, Muslim women were removed from the social domain and relocated in the domain of the family where personal law would be given primacy over their rights as citizens. Women's organisations intervened to highlight gender identity and to safeguard the rights of women, whose identity often get subsumed in the larger issue of communityidentity. Besides restoringthe focus on women, their intevention exposed the subordinate unequalposition of women and within the family, i e, personal laws and in the public realm, (for example, Section 125 of the CrPC) that women cannot, avail because they supposedly threaten community identity. Among the leadingorganisations involved in mobilising public opinion were the All India Democratic Women's Association (AIDWA), NationalFederation Indian the of Women, and the Mahila Dakshata Samiti. Streetcornermeetings,protestmarchesand signature campaigns were organised to oppose the exclusion of Muslim Women fromthe purviewof the CriminalProcedure Code. Tenlakh signatures,including those of 2,00,000 Muslim women were submitted by the AIDWAto the prime ministerurging the governmentnot to appease fundamentalists.50 AIDWAalso organiseda rally The of womendrawnequally from the poor and middle strata from different parts of the country. Yet the government refused to recognisestrengthof Muslim opposition to the bill. Instead, the sensitivity of the minoritycommunityto any form of change in the Muslim Personal Law was assumed. No attemptwas made to reconcile the conhlictingclaims of minority identity and women'srights.

IV
Whydid the government surrender funto damentlistpressures?The most important was consideration the need to stemthe anger overtheShahBano verdict,whichwas losing the Congress Muslimvotes. Followingthe its Congress defeat in the by-elections in Assam, Bijnor, Kishanganj, Bolapur, Kedrappaand Baroda and the belief that everywhereMuslim vote had tipped the balancein favourof the opposition parties, important Congress leaders advised the primeministeragainstthe dangersof a confrontationwith the fundamentalists.Syed Shahabuddin's vicotry in a by-election was a sharpreminder that Congresswouldsuffer electoralreversesin other constituencies as well unless it regained Muslim support.5' The decision to bring the Muslim Women Bill was part of the strategy to reversethe rising tide against the Congress party's efforts to woo the Muslims. The interventionin favourof the fundamentalists was 48

a desperate bid to regain the Muslim 52 constituency. An important development that influenced the course of the political movement was the decision to concede the demand of the Hindu organisationsto open the Babri mosque-Ram Janam Bhoomi. In fact the decision to enact the Muslim Women Bill was a sequel to the communal pressures mounted by Hindu organisationsagitating for the reopeningof the Babri Masjid-Ram Janam Bhoomi temple in Ayodha. The templewas opened to devoteesamidstmuch fanfare on February 1, 1986. The opening of the temple wz,sa coup mastermindedby political authorities to appease and conciliatethe VishwaHindu Parishadand Ram Janam Bhoomi Mukti Samiti, who had organised powerfulmovementto pressurise a RajivGandhito accommodateHindu sentiments. The strategy employed by these organisations was blatantly communal: "How can Rajiv Gandhi ignore the Hindu vote bank which gave him such a massive majorityat the polls, far exceedingthe votes polled by his grandfather', asked the Hindu leaders?53 Muslim leaders from other side of the communal spectrum threatenedto boycott the CongresSif Babri mosque was not restoredto Muslims. The Muslim WomenBill was an effort to pacify ruffled Muslim sentiments over the reopening the disputedBabrimosqueand of the conservativeobjections to the Supreme Court verdict.54 this way the Indianstate In performed a balancing act of accommodating and according protection to all religionsand religioussentimentsunderthe umbrellaof multi-theocraticpluralismand an ideology of secularismthat encourages and protects all religions. It is noteworthythat the enactmentof the on MuslimWomenBill conferredlegitimacy the AIMPLB and the mullahs as the 'sole spokesman'of the community.The government scorned progressive opinion raised against the bill and refusedto withdrawthe bill on the dubious plea that it was framed in deferenceto the wishesof most Muslims. In actual fact, only conservative Muslim groupswereconsulted and they werepassed off as the representative opinion of the community. "All one can say at present", declaredan angry Danial Latifi, a Supreme Court lawyer and an activist of the Committee for the Protection of the Rights of Muslim Women" is that some Machiavelli seems to have masterminded this entire operation.That mastermindis not a friend of Islam, of the Muslimsor the Republicof India. The act that precededthe bill, of the recognitionof the so-calledAIMPLB as the college of cardinals of Indian Muslims, is not only against Islam, but is also the most flagrant exercise of the power drunk bureaucracy.. ."55Within the government, Arif MohammedKhanraisedthe bannerof revolt. He resigned from the union cabinet in protest against the government. His grudge was that the governmenthad given credence to the views of only the conservatives and ignored the secular and pro-

gressive opinion in the community. The political considerations behind the Congressstrategywererevealedin the course of the debate on the bill in the Lok Sabha. A K Sen, law minister, defended the introductionof the new legislation by stating that it was" the consistent policy of the governmentthat in matters pertainingto a community priority would be given to the leadersof the community".56 This recognition of the so-called Muslim leadership meant that the government had no choice but to disregard viewof so manyMuslim the groups who had expressedtheir opposition to the bill.57A symbolicexpressionof their protest was highlighted on May 5, 1986, when a number of Muslim women, along with other membersand supportersof the AIDWA,chained themselvesto the gates of parliamentto protestagainst the passageof the bill in Lok Sabha.58 A fortnight earlier, a convention organised by the Committee for the Protection of Rights of Women emphatically castigated the bill as "retrograde measure undermining the consitutional guaranteesagainst discriminationon 59 grounds of religion and gender". The Congress Party insisted that government was constrainedto introducethe bill, because Section 125 of the CrPC was perceivedby Muslims as an interferencein their personallaw.60 "Wehave to treadvery carefullyfor Muslim PersonalLawis linked to the Muslim religionin the mindsof most Muslims. We might have our views, but we cannotdenythe perception the Muslims", of observed government spokesman.61In a similar vein, Arun Nehru, ministerof state for home and a confidanteof RajivGandhi duringthe period, reasoned:If the majority of Muslims feel that the bill is in their interest we cannot impose our views on them".62 This argument assumed that Muslims constituted a self-contained and monolithiccommunity,whose interestswere represented by the Muslim MPs and a section of the ulama. The most perniciousaspect of the controversywas the attempt by the governmentto defend the AIMPLB sponsored bill (which would clearly debilitate and deprive the Muslimcommunity)and lamentthe absence of reformisttendencies against Muslims at the same time. Contrastingthe importance of reform amongst Hindus and Muslims, Shiv Shankar,ministerof commerce, said: "I gave the example of various laws with referenceto the Hindu Code Bill ... that at that time Hindu community was prepared to accept the law. Whateverwe might say here, outside the situation is that [Muslim] people are not preparedto accept this."63 The sociallogic was unfoldedmoreexplicitly by K C Pant, minister of steel and mines: "We cannot depend only on the law for reforms.Society has to be ready for reform. of The well-springs that reformhaveto come fromwithinand then the law that havebeen aroused by a certain movement, they coincide and then the society moves forward.. . In Hindu society this processhas beengoing on for decades.It had beguna hundred years

Economic and Political Weekly January 7, 1989

It is undeniablethat the government erred in acceptingthe demand for a legislationof These argumentsare significant because questionable constitutionality one which againstMuslimwomenin relatheyexposedthe contradictions Congress- discriminates of style secularism, which in effect, stifled tion to other women. Moreover, the bill reformin the name of 'protecting'minority revealeda major flaw in the pluralisttheory interests.It served an even more important of secularism,which functions, in practice, function in the complex structureof Con- as multi-theocraticsecularismor state progress politics. The responsibility of the tection of all religions and priority of Muslim Women Bill was transferredto the religioussentimentoverall other considera4 The judgment also stated that according to the When the bill was tions. Finally,it is unfruitfulto interpret Muslimfundamentalists. its interpretation of the law, dowry is not eventsconnected with the enactment of the introduced on February 27, the prime the amount payable on divorce, but the minister defended it on the ground that Muslim Women Bill as a simple expression money fixed on consideration of marriage Section 125 of the CrPC did not provide of so-calledMuslimfeelings.ManyMuslims and endorsed in the marriage document. adequateprotectionto women and that the supportedthe ulema'sinterpretationof the Ibid, p 31. 5 Ibid, p 1. proposed bill "would give her much more situation;manyothersdid not, becausetheir 6 Muslim India, May 1985. than was available under Sections 125 and understanding of the situation did not conflict with their interests understanding 7 Shahida Lateef, The status and Role of or 127 of the CrPC"'.65 Womenin Minority Community: The Case By May 1986, the governmentjettisoned of cultural identity. Eventsdiscussedin this papersuggestthat this position in favour of the less harmful of Muslims in India; Research Project, Indian Council of Social Science Research, wayof panderingto communalismby argu- there was no cohesive articulation of a New Delhi, 1978, pp 84-85, unpublished. ing that the bill was broughtin deferenceto Muslimidentity;in fact, the constructionof 8 Ibid. the wishes of the Musiim community. The Muslim identity has remained,as always,a 9 "It is significant that despite centuries of massive outcry against the bill forced the product of specific political processes. An Muslim rule in the community did not Congressto rework its defence by shifting explanationof the success of certainmoveaccept the Shariah as the basis of law. the blame on to the Muslims. "Indeed, it ments in articulating a minority identity Womens' rights in the Shariat were almost wouldnot be an exaggeration say that on should, therefore, take into account the to never compiled with or enforced, and even no issue since the imposition of the internal changesin the politicalarena,wheregreater their right to divorce and widow remarriage emergencyin June 1975 has there been a attentionis being given to the accommodasuffered" notes Shahida Lateef. Ibid, greater measure of agreement among tion of the 'Hindu interests'to be counterpp 84-85. balancedby recognisingthe religio-cultural educated Indians than on this. It is in10 The basis of these enactments was the open concievable that Rajiv Gandhi and his identity of the minorities. approach adopted by Thikey and Egypt, advisors have not been aware of this rewhich amalgamated the different schools of Notes action", opined Girilal Jain, the influential jurisprudence to introduce laws that editor of Times of India. Indeed, they were 1 For a discussion of the role of sociofavoured women. fully awareof the political repercussionsof 11 On this point see Indira Jai Singh, 'Politics political factors in the formation of identity appeasing Muslim fundamentalism. Conof Personal Law', The Lawyers Collective, see, Peter Van Der Deer, 'God Must be February 1986. sequently,the ruling party tried to wash its Liberated:A Hindu Liberation Movement 12 Gail Minault, The Khilafat Movement: hands off the bill by taking recourseto the in Ayodhya, Modern Asian Studies, April Religious Symbolism and Political 1987, Sandria Frietag, 'Sacred Symbol as theorythat Muslimsperceivedthe Supreme a Mobilising Ideology: The North Indian Mobilisation, Delhi, 1982 Court verdict as a threat to their religious 13 Imtiaz Ahmad, Modernisation and Social Search for a Hindu Community', Comidentity.This theory enabled the Congress Change among Muslims in India, Manohar parative Studies in History and Society, leadersto delink the party from fundamen1983, Chapter Introduction. No 22,1980. Sandria Frietag, 'Ambiguous talistMuslimsby giving the impressionthat 14 Maxine Rodinson, Marxism and the Public Arenas and Coherent Personal "thegovernmentwas not reallyin tune with Muslim World, Orient Longman, Delhi, Practice: Kanpur Muslims 1913-1931' in the provisionsof the bill but had no choice 1980, p 152. Katherine Ewing (ed), Shariat and in the matter because the perception of 15 'The Judgement' in Engineer (ed), The Ambiguity in South Asian Islam, Oxford Muslims was very different".66 University Press, 1988. Shah Bano Controversy, pp 25-26. The subtle shifts in emphasis could not 2 On this aspect see Chris Bayly, 'Pre-History 16 Ibid, p 28. alterthe fact that governmentwas anxious to mollify the fundamentalists.This is most strikinglyrevealedin the haste with which GUARANTEED HAND DELIVERY SERVICE the legislation was enacted. The opinion of the law ministry was ignored. The legal "GET THEBEST SERVICE THELOWEST AT PRICE"' adviserto the law ministryhad categorically Dear Reader, statedthat the SupremeCourt had correctly We are glad to inform you that we have very recently opened our interpreted the law. The law secretary's in KRISHNA BOOK CENTRE your locality at 34, WORLDTRADECENTRE, advice was even more emphatic: the bill to Cuffe Parade, Colaba Bombay-400 005. amend sections 125 and 127 of the CrPC We are glad to invite you to subscribe for Indian as well as foreign should be opposed.67 Assurance given by newspapers, magazines, journals and periodicals through us. the primeministerof holding wide-ranging consultations were not honoured. Equally, L,P.Yadav the promiseto bringout a background paper L. P. Book stall on MuslimPersonalLawwas not fulfilled.58 20, B. S. Marg And the pleading of the opposition parties Near S.B.I not to hustle through the bill was ignored. Bombay 400 023 What is worse the groundswell of opposiTelephone-216562 tion within the ruling party was stifled by a governmentwhip in parliamnentt.
itself. "'4 Economic and Political Weekly, January 7, 1989 49

ago. As a result of that and the efforts of so many tall leaders of this country the Hindu society has been able to regenerate

of Communalism', Modern Asian Studies, No 19, 1985, Talal Asad, 'Anthropological Conceptions of Religion: Reflections on Geertz', Man, No 18, 1983 and Paul Brass, Language, Religion and Politics in North India, Cambridge University Press, 1974, Chapter Introduction. 3 For details see 'The Judgement' by C J Chandrachud in Asghar Ali Engineer, The Shah Bano Controversy, Orient Longman, 1987.

17 Indian Express. March 15, 1986. 18 Mushirul Hasan, 'Indian Muslims since Independence:In Searchof Integrationand Identity'. Third World Quarterly, April 1988, p 830. This is almost four times The figure of the 1970s. 19 Ibid, p 830. 20 Issues of Muslim India provide information on the economic condition of the Muslims. 21 RasheeduddinKhan, 'Minority Segments in Indian Polity: Muslim Situation and the Plight of Urdu'. Economic and Political Weekly, September 2, 1978, 1514-15. 22 Mushirul Hasan, 'Indian Muslims since Independence, pp 833-34. 23 WalledCity Riots: A Report on the Police and Communal Violence in Delhi Peoples Union for Democratic Rights, May 19-24 1987, Delhi, 1987, p 1. 24 'The Judgement' in Engineer (ed), Shah Bano Controversy, p 23. 25 Ibid, see first para of the judgment. 26 Muslim India, June 1985. 27 Ibid. 28 Muslim India, May 1985, p 195. 29 The Bill introduced by G M Banatwala sought to modify Article 44 of the constitution to exempt Muslims from its purview. This was aimed against the advice contained in the judgment that government should facilitate a uniform civil code. 30 G M Banatwala statement in parliament. Muslim India, May 1985, p 202. 31 Indian Express, October 7, 1985. 32 Statesman, October 27, 1985. 33 The Telegraph, March 8, 1986. 34 Indian Express, November 15, 1985. 35 The flutter caused by the Supreme Court judgment and the concerted pressure mounted by the Muslim Personal Law lobby forced Shah Bano to issue a statement that the verdict be withdrawn. The retraction made sevenmonths after the verdictwas the consequenceof the sustainedpressureof the fundamentalists combined with the threat of social ostracism. The Telegraph November 22, 1985. 36 Shahabuddin claimed that the judgment had 'injured Muslim feelings because the Supreme Court had tried to interpret the Holy Quran, in doing which it had usurped the role of a social reformer and violated the basic rules of the Shariat. Statesman, October 1, 1985. 37 A recent work on the subject is by M S Agwani, Islamic Fundamentalism in India, Chandigarh, 1986. 38 Jammat-i-Islamistatement quoted in Brass, Language, Religion and Politics, p 220. 39 An All India Muslim Personal Law Board was set up in December 1974 to momenter and resist any changes that might be brought about in the Shariat. 40 An analysis of the many discourses-legal, religious,political and feminist-that Shah Bano was drawn into and the process of discursivedisplacement that directly affects the formation of female identity is discussed by Z Pathak and R Sunderrajan in a paptr on Shah Bano presented at the Indian Association for Womens Studies, Third National Conference, Chandigarh, December, 1986.

overtonesas his Congressrival was the secretaryof the Jamait-ul-ulema and a memberof the DeobandSchool. But in spite of such impeccablecredentialsthe Copgress candidate defeated a wide was by margin. The Kishanganjverdict strengt.hened fundamentalist the lobbyclamouringforan amendment Section125of the of CrPCto exclude Muslims fromits purview. The pricethat the leaders the anti-Shah of Banoagitationand the 'representatives' 43 'The Telegraph, October 3, 1985. of the Muslimcommunitydemandedwas a 44 Memorandums Committeefor Protecby tion of Rights Muslim of bill in parliament negatethe verdict submitted Women to and to prime minister on February24 and thusfortifythe Muslim Personal Lawfrom encorachment the courts. by March1, 1986,Mainstream, March 1986. 8, 52 For an analysis of the sequence ot, 45 'Stir within Muslim intelligentsia, developments leading to the decisionto Mainstream, March 8, 1988. 46 Statesman, April 27, 1985. Women seeNeerja bringin the Muslim Bill, 47 The Telegraph, September 1, 1985. Chowdhary, 'The Political Fallout', 48 At firstthe primeminister encouraged Arif Statesman, April 18, 19, 20, 1986 and MohammadKhanto openly supportthe 'Muslim Women Bill: A Trail of Errors' judgment to denounce mullahs and the who Statesman, April 28, 1986. weretryingto whipup an agitationon the 53 Statesman,April 20, 1986. issue. A few weeks later Rajiv Gandhi 54 Statesman, April 28, 1986. allowedanother ministerZia-ur-Rehman 55 Sunday, June 8-14, 1986. Ansarito speakout in defenceof mullahs. 56 The Telegraph, May 15, 1988. twoeventsas partof an attemptto impose a uniformcivil code. 42 Thisassessment basedon the experience is of womens organisations engaged in Muslimwomenon the issue.It mobilising wasevident fromtheenthusiastic participation of Muslimwomenfrom all classesin the publicmeetings,ralliesand signature campaigns organisedin the courseof the debateon Shah Bano issue.
Times of India, May 14, 1986. 49 The Telegraph, December 4, 1985. The

prime minister wenta stepfurther, stated he that the governmentwas not averse to reviewing law whichcame in conflict any withthepersonal of anyreligious law group. 50 AnnexureA, letterto the primeminister submittedby six womens organisations. New Delhi, 1986. 51 Shahabuddin electedby a margin 73 was of percentfromKishan Ganj.Onlya yearago he was defeated in the election from His Kanpur. tirelesscampaignagainstthe Shah Bano verdictgenerated considerable supportfor him. Fromthe veryoutsetthe campaign had acquired fundamentalist

57 Times of India, December 28, 1985. This recognition was implicit in the government decision to prepare the legislation in consultation with the ulema and AIMPLB. 58 Ibid. 59 The Telegraph, April 27, 1986. 60 Gautam Navlakha, Social Scientist,

June 1986.
61 The Telegraph, May 15, 1988.

62 Ibid. 63 Ibid. 64 Ibid.

65 66 67 68 The Telegraph, February 28, 1986. Times of India, May 14, 1986. Times of India, March 4, 1986. Times of India, March 4, 1986.

APPOINTMENTS MADRAS INSTITUTE DEVELOPMENT OF STUDIES

79, Second.Main Road, Gandhinagar, Adyar, Madras 600 020 The Madras Institute of Development Studies, a National Research Centre in the frameworkof the IndianCouncil of Socail tcience Research, is looking for social scientists, at different levels, capable of rigorous empirical and theoretical research with sensitivity to non-economic and historical dimensions of the development process particularlyin the field of ruraleconomy and society, industries, urban problems, social services and environment. Fellows and Senior Fellows (equivalent to Readers and Professors in the UGCscales) must be persons with outstanding academic qualifications and research publications. Senior Fellows must, in addition, be capable of taking active and effective part in the Institute's Ph.D. Programmeand providing broad intellectual leadership to its teaching and research activities. For Research Associateship (on UGC scales for Assistant Professors) only those who have obtained a Ph.D.or have submitted their thesis for the Ph.D. in any of the social sciences may apply. Those interested may please send to the Director of this Institute by 15 th February,1989, their bio-data (along with copies of 2 or 3 of their best works, and two referees well acquainted with their academic and research work) indicating the post for which they wish to be considered.

41 TheUrdupress,MuslimLeague,Jammati-Islamiand the AIMPLBinterpreted the 50

Economic and Political Weekly January 7, 1989