This entrenchment of communal identities is aimed at suppressing the caste fault-lines present in both communities. The suppression of caste fault-lines is necessary to hold on to the privileges accumulated under the Brahmanical-Saiyyadvadi social order. Thus, the demand for UCC helps the BrahamanvadiSavarna to consolidate its dominance over the Bahujan under the garb of Hindu identity and the opposition to the UCC helps the SaiyyadvadiAshrafiya to consolidate its dominance over the Pasmanda under the garb of a monolithic Muslim identity. Pasmanda is the social category which includes SC, ST and OBC who converted to Islam and are now dubbed as Muslims. 

The UCC is not the exclusive issue used to construct this binary of the Hindu versus the Muslim. It is deployed in combination with various other cultural symbols which mark out the caste ridden diverse populace into two hostile groups.
The most prominent among them are Aligarh Muslim University and the Banaras Hindu University (Muslim modernity versus Hindu modernity), Muslim MadarssaEducation and Hindu Sarasvati Education (Muslim culture versus Hindu culture), the Muslim League andthe Hindu Mahasabha (Muslim Politics versus Hindu Politics), Muslim Personal Law versus Hindu Personal Law, Muslim Secularists and Hindu Secularists (Jinnah versus Gandhi), Muslim Fundamentalist and Hindu Fundamentalists (Iqbal versus Savarkar), the Muslim Liberal and the Hindu Liberal (MaulanaAbulKalam Azad versus PanditJawaharLal Nehru) and so on and so forth.

All these oppositional symbols can be ontologically understood by replacing the expression ‘Muslim’ by ‘Ashrafiya’ & ‘Hindu’ by ‘Savarna’. Similarly, the question of UCC can be understood within the dialectic of religious identity formation and the invisibalization of the caste identity and the need for their continuous reproduction through these hostile binaries.

The function of creating false binaries is performed as much by the secular, liberal and modern Ashrafiya-Savarna as by the priestly Ashrafiya-Savarna. In fact, the former often provides, with uncanny regularity, a momentum to the secular-communal bandwagon by invoking the symbol and then reprimanding their kith and kin on the other side of the pool.

When the Savarna demands the UCC by objecting to Triple Talaq or Polygamy permitted by Muslim Personal Law, the Ashrafiya ridicules Hindu Personal Law by pointing out that incidents of polygamy are higher among Hindus compared to Muslims or Hindus leave their women in the lurch without divorcing them due to stringent norms of divorce! The secular, liberal & modern Ashrafiya is better placed to achieve this result due to the superiority of his intellectual capital over the priestly Ashrafiya. It is no coincidence, then, that in the history of Indian subcontinent, the height of communal polarisation was achieved during the reign of Mr. Jinnah & Gandhi over Indian politics, both ofwhom had an impeccable track record of being secular-liberal leaders of their respective caste groups.

The Muslim League of Jinnah effectively killed the democratic aspirations of Abdul Qayyum Ansari in this process while the Congress of Gandhi substantially undermined the democratic space sought by Dr. Ambedkar.

In present times, this function is performed by leaders like SayedOwaisi and Subramanian Swamy. There is an inherent underlying unity in the apparent hostility of the two. Within the Gramcian frame of war of positions, both take a united position against Dalit-Bahujan-Pasmanda positions of material interests and seek to win the round by hook or by crook. It is often amusing to watch Ashrafiya intellectuals bat on the UCC while bowling to the Savarna in a playful display of bonhomie!      

However, the question of the protection and preservation of the patriarchal privileges of the Ashrafiya in the garb of existing personal law is only partially answered by the above analysis as this question goes to the very root of caste system.

As explained by Dr. Ambedkar in his paper titled “Castes In India: Their Mechanism, Genesis and Development”[1] patriarchy constitutes the core of the caste order.

Unlike hostile religious identity which is only a symptom of caste structure rather than the cause of it, patriarchy is the central pillar of the caste system itself. Therefore, the patriarchal privileges of Ashrafiya are not just protected under the garb of personal laws rather the garb of personal law itself is created by the patriarchal foundations of the Ashrafiya identity! Hence, patriarchy is the base on which Ashrafiya privileges are laid down and existing personal laws only partially support them. Naturally, Dr. Ambedkar underlines gender injustice in various forms as the chief mechanism of the origin of caste in India.

Both positions, in favourof and inopposition to the UCC are an outcome of an intuitive ‘higher caste’ consensus across religious categories rather than any pious allegiance to constitutional principles or Islamic tenets as they are made out to be. Neither the constitution mandates creation of the UCC nor does Islam oppose such a system as the very idea of UCC in practical terms is non-existent in both Constitutional & Islamic jurisprudence! The main reason for the demand for the UCC by the Savarnaand its opposition by Ashrafiya is due to the consolidation of communal identities by the invisibalizingof caste identities. Both functions go on to support caste order.  In any case, there need not be any real conflict between a secular uniform civil code and religious separate laws as the former can not come into being without accommodating the later. In fact, the existing secular uniform civil code in the form of Special Marriages Act performs the very same function although in a very biased and unscientific manner. 

Similarly, it is very much possible to develop a civil code without affecting the core values of Islam and cultural autonomies of ‘minorities within majorities’ if this question is approached from the vantage point of gender justice & justice to sexual minorities. If, however, the creation of a civil  code is to be utilised as hegemonic tool of dominant groups belonging to any category which is inherent in all exercises of law making, then such a possibility is impossible to imagine, and hence futile to explore. 

The Pasmanda identity, on the other hand, has emerged in opposition to minority politics as the later has failed to fulfill the aspirations of the former[2]. It is similar to the emergence of Bahujanidentity which was formed in opposition to majority politics for materially similar reasons. The Pasmanda identity is relatively young and  its arrival is and has been actively resisted by the Ashrafiya proponents of minority politics, in the present context by manufacturing an opposition to UCC.

Thus, the opposition to UCC through conservation of regressive laws and practices including Triple Talaq, Divorce without making sufficient provision for maintenance, Halala and polygamy along with the hegemonic symbols as discussed earlier continuously obstruct the articulation of Pasmanda concerns. It is evident that the UCC debate has no substantive objects to achieve apart from its role as consolidator of communal identities. Further, the question of gender justice can be addressed within the framework of existing personal laws provided that sincere efforts for reforming personal laws are made and the debate is not used to sustain the Hindu versus Muslim binary to sub-serve the Brahmanical-Saiyyadvadi agenda of a hierarchical social order.

Keeping this background in mind, the Pasmanda position on the UCC debateisrooted in ethical concerns of inter-sectionality. For this purpose I tentatively propose the following points for consideration by Pasmanda activists:
 

1. Codification of all Personal Laws without reference to communal identities
2. Incorporation of gender justice including justice to third gender as the guiding principle of all Personal Laws. In the immediate context it would mean undertaking the following reforms:

1. Abolition of Triple Talaq
2. Adoption of minimum waiting period of one year for any divorce to take effect
3. Compulsory provision for maintenance of women after divorce till remarriage or till the time she finds an independent means of sustenance
4. Abolition of Halala
5. Universal application of criminal provisions relating to bigamy/polygamy

3.  Recognition of inherent equality of genders on issues covered by Personal Laws
4. Legitimisationof  theAll India Women Personal Law Board
5. Legitimisation of the All India Pasmanda Personal Law Board
6. De-legitimisation of the All India Muslim Personal Law Board
7. Delegitimization of Madrassa’s and Mosques as the representative of Pasmanda concerns on the question of Personal Laws
8. Preparation of a Draft UCC after incorporating these concerns

Ever since the Shahbano fiasco, the Saiyyadvadi-Ashrafiya obsession with the Muslim Personal Law has significantly strengthened the Brahmanical position against a Dalit-Bahujan-Pasmanda discourse. The Pasmanda movement hopes to prevent a repeat of this by adopting the principle of gender justice in the field of personal laws. The Ashrafiya leadership both secular and priestly is singularly incapable of undertaking the agenda of reforms in personal laws as it would mean a loss of an important tool for the reproduction of Ashrafiya identity. Therefore, the Ashrafiya position that the call for reforms must come from within the Muslim community is nothing more than dilatory tactics adopted to please their Savarna kith and kin in order to safeguard their caste privileges.

For the Pasmanda, choking essential personal law reforms would mean delaying the arrival of their legitimate social, economic and political concerns which have been suppressed for centuries.
 
 
(The author is Head, Glocal Law School, Glocal University-Saharanpur-UP)

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(This interview first published on Scroll.in in May 2015 is being republished here in view of the shrill campaign launched by the All India Muslim Personal Law Board and other Muslim bodies any any reform in Muslim Personal Law)

Former Dean of Delhi University’s Law Faculty and former Chairman of the National Commission for Minorities Prof Tahir Mahmood is an internationally recognised expert on Muslim Law. He speaks on the system of divorce among Muslims and how maulvis and the All India Muslim Personal Law Board have thwarted reforms that could have benefited the community. Excerpts from an interview:

In your book, Introduction to Muslim Law, you have written, 'In India Muslim law is applied as a part of the country’s civil law, and not as part of the Muslim religion. It does not enjoy any special status so as to be protected by the religious-liberty provisions of the Indian Constitution.' Are you saying Muslim Law is subject to changes?
Muslim Law, as also Hindu Law, Christian Law and Parsi Law have been chapters of Indian Family Law. They continue to be applied even now, subject to changes, amendments, alterations, deletions and abolitions made by the competent authority, that is, Parliament and the Supreme Court. There is absolutely nothing, not even a word, in the Indian Constitution protecting the personal law of any community, nor exempting it from the jurisdiction of Parliament or state Assemblies or any higher courts.

On the contrary, there is a specific provision in the Constitution giving power to Parliament and state Assemblies to amend and repeal existing laws or pass new laws in all those matters which were on August 15, 1947, governed by personal laws. This is Entry V in the Concurrent List.

But Muslim leaders and clerics insist that Muslim Personal Law is derived from the Quran and, therefore, cannot be altered.
Well, it is absolutely foolish to say any personal law is protected by the Constitution. None of the freedom of religion clauses in the Constitution, from Article 25 to Article 28, even remotely talks of personal law. On the contrary, an explanation in Article 25 says that freedom of religion will not preclude the state from introducing social reforms and enacting laws on subjects traditionally associated with religion.

Muslim Personal Law has changed in other countries, hasn’t it? Why are clerics in India so resistant to change?
I suppose this question is best asked to them. But ignorance, obstinacy, blind belief in religion and morbid religiosity are undoubtedly the factors.

Muslim Law is viewed to be tilted against women. The most evocative symbol of this view is triple talaq, namely, that Muslim men can divorce women by simply pronouncing talaq three times. You have rejected the concept of triple talaq, saying that it doesn’t adhere to the correct Islamic procedure. What is the correct procedure?
The law on this point is absolutely clear in the Quran. There are two verses in the Quran pertaining to talaq. One verse says, “Divorce is only twice.” The background to this verse was the social condition prevailing in the pre-Islamic period – husbands would divorce their wives temporarily, because every divorce was revocable till the iddat period [This corresponds to roughly three months, the expiry of which leads to couples separating]. They would divorce their wives, revoke it on the last day of iddat, enjoy them for some time and again divorce. Basically, they kept playing hide and seek with wives all their lives.

To stop this devilish practice, the Quran declared that a person can revoke his divorce only once. This means if the husband divorces his wife the second time in his life, the marriage is instantly dissolved. She will not remain his wife, iddat or no iddat.

The other Quranic verse says a person can’t divorce his wife unless there is an arbitration or reconciliation process, which requires representations from both sides. The maulvis have assumed the power of deciding that the first verse is Quranic law and the other is just Quranic morality, not law. Who has authorised them to make this distinction? The Quran does not speak of law and morality. Whatever the Quran says is Quranic.

So how did this practice of triple talaq come to India and why is it entrenched in India?
It was there everywhere. But, other than India, it has been reformed elsewhere. Islam didn’t introduce this practice of triple talaq. Islam, on the contrary, tried to stop this, as I have already explained. But custom was deeply rooted and it continued thereafter.

Since triple talaq doesn’t have the Quranic sanction, would you say this practice should be banned in India?
Triple talaq has been banned all over the Muslim world. Why should India be sticking to this 7th century law?

I assume you must have spoken to the supporters of triple talaq and tried to make them see reason.
I have spoken to them enough. I don’t want to waste my time anymore. I can’t convince the fanatics. They will remain what they are.

What arguments did they cite to you for insisting on continuing with triple talaq?
These people say they are not competent to understand the Quran. They say they are bound by the interpretation of the Quran by this or that Imam who lived in the first 100 years of Islam’s advent. Just as the Constitution is what the Supreme Court of India says it is, the Quran is what Imam Abu Hanifa (699-767 CE) or Imam Shaefi (767-820 CE) said it was. It doesn’t matter to them that the Quran at the outset asks the reader to go deep into its meanings and decide it for himself. Nor does it matter to them that the revered Imams cautioned people against following them blindly. Read the Quran and decide for yourself, they said. Unfortunately, we in India are going in the contrary direction.

Islam enables couples to divorce without having to go to the court. Do you think it leads to exploitation of women, even though not taking recourse to the legal system is inexpensive?
There is a concept of divorce by mutual consent that is embedded in modern law. The policy behind [it] is that if both the husband and wife want to divorce through mutual consent, the court isn’t allowed to probe their decision. Similarly, Prophet Mohammad wanted couples who thought their marriage had broken beyond repair to walk away from it, either together or alone, by following the prescribed procedure. This procedure is separate for men and women, and there is also one by which couples can divorce through mutual consent. Prophet Mohammad didn’t want such couples to go to courts.

Under Islamic law, is it possible for couples to stipulate in the marriage agreement that the wife shall have the right to dissolve the marriage by her own action?
Yes, it is called contractual divorce.

But do wives have equal rights to divorce under Islamic Law?
Wives have equal rights through khula, which is the counterpart of talaq by men. Khula is divorce at the behest of women. She can tell her husband that she does not want to live with him. The husband can’t even ask her why. Khula is her decision. So if the husband agrees to give divorce, it is well and good. The only thing he can ask for is that he wouldn’t pay her mehr or dower. It is possible the husband might not listen to her and agree to divorce her. In that case, the woman can go to the qazi to have khula enforced.

But muftis say that if the husband doesn’t agree to divorce her, then the wife has to stay with him.
Rubbish, the law has already been interpreted by the Supreme Court of Pakistan that in khula the decisive voice is that of the wife.

So is the woman’s right to divorce equal to that of the man in Islamic Law?
Almost equal. In fact, the wife has more powers than the husband, who can divorce through the process of talaq only. The wife has khula, contractual divorce, and, on top of it, the power of faskh, by which she can approach the court for divorce on a ground or allegation and prove it. These grounds have been codified in India, through the Dissolution of Muslim Marriages Act, 1939. In contrast to faskh, khula is unilateral.

Under Islamic law, is maintenance to a divorced woman after the iddat period recognised?
Yes, it is. I have been asking the maulvis to cite me any verse from the Quran or any Hadith [tradition of the Prophet] that says paying maintenance after iddat is haram [forbidden]. The Quran says maintenance has to be paid to the divorced woman during the iddat period. Since she can’t remarry during iddat, maintenance for this period is mandatory. After the expiry of iddat, in the Arabic society during the Quranic days, the woman used to get remarried immediately.

The correct interpretation of the law is that maintenance up to the iddat period is mandatory, but if she gets remarried then the liability is of her new husband. Otherwise the maintenance continues. So maintenance during iddat is the minimum period, not maximum.

But are there examples of husbands paying maintenance to their divorced wives beyond the iddat period in earlier centuries?
Under the law of contractual divorce heavy amounts were paid even in early times. This is known as mata or compensation for arbitrated divorce.

Why did the Shah Bano case then trigger such a controversy?
The Shah Bano case wasn’t on Muslim Law. The simple issue before the Supreme Court Bench was whether the CrPC [Code of Criminal Procedure] law is applicable to Muslim divorcees. The Bench should have simply said, yes, it is applicable. Instead of saying that, the Bench tried to prove that the law is in accordance with the Quran, conveying the wrong impression that the Bench was reinterpreting the holy text. Then in its judgement, as it always happens, the Bench ended with a lament for the Uniform Civil Code.

What is your position on the Uniform Civil Code?
If the UCC means modern Hindu law, then I’d say no. In fact, 99% of people use the UCC as a synonym or euphemism for modern Hindu law. The minority communities, not Muslims alone, will never accept it. The lady sitting there [in his drawing room, where the interview was conducted] is a Christian. Can you ask her not to go to the church to get married, that she should instead do so under Hindu Law, with pheras and all?

Secondly, Hindu Law is itself not a modern law – it is full of gender- and religion-based discrimination. For instance, if a married Hindu woman were to become a Sikh or Buddhist or Jain, she continues to enjoy all her rights against her husband. But if she were to become Muslim or Christian, she instantly loses all her civil rights. It is a bias of Himalayan proportions. Or if the husband wants to give his child in adoption to someone else, he needs the consent of his wife, provided she hasn’t converted to Islam or Christianity. If she has converted to Buddhism or Sikhism or Jainism, her consent is still mandatory.

Under the Hindu Succession Act, 1956, if a son becomes Muslim or Christian and he dies in the lifetime of his father, then whether the son’s children can inherit from their grandfather depends on whether they were born before or after their father’s conversion. This was enacted by Parliament of modern, secular India six years after the adoption of the Constitution of India. What is the fun in talking about the UCC?

What about that Muslim law which treats two female witnesses as equal to one male witness?
This is a non-existent provision which maulvis cite. It is a concoction. There is no Quranic sanction.

How come nobody attempts to address the anomalies that have crept into Muslim Law?
It has been answered by the state all over the world. India is the only exception.

How do we get out of this rut?
We can’t, as long as we have the minority syndrome. Bangladesh has 12% Hindu population, but Hindu Law there remains where it was on August 15, 1947. By contrast, Muslim Law has undergone changes in Bangladesh and Pakistan. In the subcontinent there is a minority syndrome, which is deepest here in India. The hold of maulvis over the community is so strong that there is absolutely no scope for reform of Muslim Law in any foreseeable future in India. For any reform, we will have to look at the judiciary, which has been introducing it through a circuitous way. The judiciary is the only hope.

Do you think the All India Muslim Personal Law Board has been an agent of change?
Frankly, I want the Board to be abolished. Its members are paranoid and they speak rubbish. Every time the Supreme Court delivers a judgement, the Board members say it is interfering with Shariat. They are doing disservice to the community. They have succeeded in making the community believe that Muslim Personal Law means the Quran and that there is no difference between the two, and that both are divine.

In my autobiography, Amid Gods and Lords, which was recently released, I have cited an anecdote. A maulvi and a pandit go to God and both complain that their communities don’t accept social reform. After a long argument, God counsels them to be patient with their community and that a time would come when they would accept reform. The pandit asks, “When would that time come?” God said, “Not in your lifetime.” Then the maulvi asked, “When would that time come for my community?” God said, “Not in my lifetime.”

Every sensible Hadith is declared false, every sensible verse of the Quran has been abrogated.

How do you abrogate a verse of the Quran?
I will give you an example. There is a verse in the Quran which says that every person who is dying must make a will in favour of his wife. There is also a verse fixing the wife’s share in the husband’s property. The maulvis say the verse relating to the husband’s will has been abrogated and the share of wife is just 12.5%. They quote a Hadith which says the wife’s share can’t be augmented even through the husband’s will. Whatever is convenient to men the maulvis say that is law.

I must tell you about a seminar in Chennai. It was on false Hadith. In one session there was a question, why do maulvis say Muslims shouldn’t keep dogs as pets? The maulvis cited a Hadith to back it, while others claimed that this particular Hadith was a concocted one.

I was chairing the session. There was an hour of discussion. Several reasons were cited, the principal one being that the dog is a dirty animal, etc. At the end of the discussion, I gave my opinion: “Dog is the only animal bestowed by God with common sense. But maulvis can’t tolerate common sense. That’s the only reason why they don’t want dogs to be kept as pets.”

Ajaz Ashraf is a journalist from Delhi. His novel, The Hour Before Dawn, published by HarperCollins, is available in bookstores.

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Even as the Muslim Personal Law Board continues with an archaic, rigid and untenable view on triple talaq,  Sabrangindia reproduces an article by legal expert and jurist Tahir Mahmood that exposes the argument

Image: AFP

“The Supreme Court cannot test the validity of Muslim law on the touchstone of fundamental rights guaranteed by the Constitution since it is not a State-made law.” This is what former Chief Justice Aziz Ahmadi’s lawyer-son Huzefa Ahmadi has reportedly told the court the other day. The constitutional tenability of his contention needs to be examined in its proper perspective.
 
In October 2015 a Supreme Court Bench was hearing arguments in the case of Prakash v Phulwati in which gender discrimination under the Hindu Succession Act 1956 had been challenged for its constitutional validity. As the lawyer opposing the challenge argued that similar discriminations under Muslim law had been allowed by the courts to stay, the Bench directed that a PIL be registered suo motu for the consideration of that matter by an appropriate bench to be constituted by the Chief Justice.
 
In a bid to preempt any further proceeding in the matter, the Maharashtra unit of the Jamiat-ul-Ulama has now filed a petition in the court arguing that non-statutory Muslim law is outside the ambit of fundamental rights. Huzefa has made the contention referred to above as the petitioner’s lawyer.       
 
In Part III of the Constitution guaranteeing fundamental rights Article 13 says that any past or future law made by the State, as also any custom and usage, going against its provisions would be void. As it does not specifically mention personal laws, there has been a controversy whether this prefatory declaration in Part III covers also the personal laws [which are claimed to be something different from custom and usage].

All religious communities in India are governed by their respective personal laws which, with the sole exception of Muslim law, are now found in legislative enactments.  While these codified personal laws can be seen as State-made laws, for the uncodified Muslim law it is claimed by the community leaders that not being a “State-made law” it is beyond the scope of Part III.

The contention is clearly erroneous. The uncodified Muslim law is in force in India not as part of Muslim religion [as Muslim religious leaders presume] but because of its recognition by state legislation, mainly the Muslim Personal Law (Shariat) Application Act 1937. Particular chapters of Muslim law are protected by specific provisions of several other statutes – law of gifts by the Transfer of Property Act 1882, of wills by the Indian Succession Act 1925 of dower by the Dowry Prohibition Act 1961, and so on.

Jurisprudentially, no difference can be made between a personal law incorporated in some legislative enactments and another applied by the courts under the authority conferred by some other legislative enactments.

Even if it is presumed that personal laws are covered by the fundamental right to religious freedom under Article 25 of the Constitution, that Article itself emphatically says that this right will not prevent the State from introducing social reforms. In any case the Constitution does not exempt any personal law from the legislative powers of the State – on the contrary it specifically puts all personal law matters, without exempting any community, within the competence of Parliament and state legislatures [Schedule VII, List III, entry 5].  Further, all personal laws are administered in the country by State courts and nothing in the Constitution exempts any of them from the higher courts’ power of judicial review.

I am not saying that Muslim law should not be retained in force and  have always loudly said that the State cannot repeal Muslim law without first repealing the four Hindu law Acts enacted by Parliament in 1955-56 [ignoring the civil laws of marriage and succession which were already available as a secular option].  My stand that if the personal law system is to be abandoned in favour of a common law the lead must come from the majority community was cited in the Shah Bano case (1985) with a rider “lead or no lead the State must act.”

The Muslim law claimed to be of “divine” origin is practised in India in an awfully distorted way going in a direction diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet who was indeed one of the greatest social reformers in human history.

Disagreeing with it, I maintain my considered opinion that repealing the traditional Muslim law while retaining the modern Hindu law – which also, like the former, is replete with religious and gender discriminations — will be repugnant to the Constitution.    

The Muslim law claimed to be of “divine” origin is practised in India in an awfully distorted way going in a direction diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet who was indeed one of the greatest social reformers in human history. For sixty-eight years since independence religious leaders have succeeded in preventing any legislative reform. In the absence of any corrective legislation the apex court of the country has cautiously tried to retrieve the original principles of Muslim law and apply them in their true letter and spirit. Religious leaders always deprecate such rulings too, sometimes in words bordering on contempt of court. 

Those who claim immunity for Muslim personal law from the jurisdiction of the country’s apex court must read the writing on the wall and let it remain in force as a matter of state policy, without questioning its judicial interpretations. Invoking the Constitution for its protection is an utterly unwise move which may prove fatal for its continuation in force.  

(The writer is Professor of Eminence & Honorary Chairman, Institute of Advanced Legal Studies, Amity University, former Chairman, National Minorities Commission, former Member, National Human Rights Commission and the Law Commission of India)
 

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