In the legislative history of Independent India, July 2019 will be known more for several bad legislations, even while few more of worse legislations are about to be enacted. Most of these bills have been rushed through quite hurriedly in the two houses which have got numerically depleted and feeble opposition.
Of these, the RTI Amendment Act, Unlawful Activities (Prevention) Amendment Bill, and the Muslim Women (Protection of Rights on Marriage) Act, particularly appear to be legislations in vengeance. The last-mentioned invalidates as well as criminalises instant triple talaq (ITT) with up to three years jail term for the Muslim men found guilty. The amendments introduced in the RTI take away all the reasonable ways in which citizens were empowered and the governments were made accountable. This is for everybody to foresee that the second one is going to be misused by the governments of the day more against the pro-people social activists. The third one is ludicrous too, in the sense that the pronouncement of ITT stands invalidated by the law. Now the issue is that when a ‘crime’ is deemed to have not happened, then what is the justification of penalty with imprisonment up to three years? The entire world will mock us for this kind of law and jurisprudence.
The ITT is prevalent among only one sub-sect (maslak), Hanafi, of the Sunni sect of Muslims, though they happen to be a majority among India’s Muslims.
Ever since Nehru led government had legislated the Hindu Marriage Act 1956, a section of society has been harbouring a deep grievance as to why did it ‘spare’ gender reform among Muslims.
In 1986, when the Rajiv Gandhi led government overturned the Supreme Court verdict in favour of Shah Bano (1916-1992) through legislation snatching away her right to maintenance, the grievance got renewed and reinforced. This was done under the pressure of the clergy who had stoked conservatism in the worst possible ways taking recourse to street mobilizations. Notably, the grievance was not limited to the Hindu Right-wing.
It also needs to be added here that Ali Miyan Nadvi (1914-1999), the then chief of the AIMPLB, clearly narrates, rather ”confesses” in his Urdu memoir (1988), Kaarwaan-e-Zindagi (vol. 3, chapter 4, pages, 134-135, 157) as to how did he mislead and prevail upon Rajiv Gandhi, the then Prime Minister, to upturn the Supreme Court verdict through a retrogressive legislation.
Reading Nadvi with Nicholas Nugent, in his book, Rajiv Gandhi: Son of a Dynasty (BBC Books, 1990, p. 187) reveals a lot:
“…a decision had been taken by the Congress High Command in early 1986 to ‘play the Hindu card’ in the same way that the Muslim Women’s bill had been an attempt to ‘play the Muslim card’. …Ayodhya was supposed to be a package deal…. a tit for tat for the Muslim Women’s bill. …Rajiv played a key role in carrying out the Hindu side of the package deal by such actions as arranging that pictures of Hindus worshipping at the newly unlocked shrine be shown on [Doordarshan] television”.
Shah Bano, married in 1932, and separated from her husband in 1975 was the 62 –years-old wife of a well-off advocate in Indore, when she approached the court in April 1978 for maintenance. This is a lesser-known but quite pertinent fact that she was pronounced instant triple talaq inside the Indore court only after the judge, in course of hearing, said that even under the Muslim Personal Law, she was entitled for maintenance. This piece of history is pertinent for many reasons including for being at the core of the notion of maintenance of a divorced Muslim woman in India.
The tragedy with Tuesday’s legislation (July 30, 2019) is that it does not say even a word on maintenance, much as the regime is blinded by majoritarian vengeance. The Muslim women potentially remain as hapless and helpless as ever: as was Shah Bano, as are so many Hindu women abandoned by their husbands. Maintenance also will be deterrence against ITT. The Bill introduced in December 2017 did have this provision: “A Muslim woman against whom talaq has been declared is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be decided by a First Class Magistrate”. One fails to understand why it has been deleted from the final enactment of the legislation on July 30, 2019.
Asaduddin Owaisi, the AIMIM president, articulated all the flaws of this legislation quite brilliantly, inside the Lok Sabha, but he too did not say anything on maintenance. He has been playing populism with the clergy. In February 2018, the 26th plenary session of the AIMPLB was hosted by Owaisi in Hyderabad. Just a week earlier, the AIMPLB spokesperson in Lucknow had promised to bring about a model nikahnama wherein the groom will take a vow not to ever pronounce ITT. The AIMPLB, quite shamelessly reneged on that.
Unlike the Shah Bano Case (1986), the AIMPLB had made itself a party in the Shayra Bano case —in which the 35 year old woman from Uttarakhand approached the Supreme Court in 2016, demanding ITT pronounced by her husband be declared null and void. The Supreme Court delivered its verdict in August 2017. Here, the AIMPLB had on oath said that rather than the Court, this should be resolved through legislation in Parliament. Yet, the AIMPLB did not bother to prepare even a draft bill. Re-playing 1986, they resorted to street mobilizations and remained as stubborn on introducing reforms.
The AIMPLB even while admitting that the ITT is an innovation (bida’t), un-Quranic, hence not inimical to Islam, refuses to admit and popularise few pertinent historical facts: it was the second caliph Umar who, only in just one specific case, had validated ITT, that too with corporal punishment to the man; the ITT was subsequently invalidated by the fourth caliph Ali. How did this un-Quranic bida’t re-appear in practice again? Why should a bida’t be regarded as shariat? This remains a mystery.
While Indian society and polity underwent fast-paced communalization in the 1980s, whereby the majoritarianism derived its fodder and such misdeeds of the liberal-centrist regimes discredited Indian ‘secularism’ which came to be seen as undue favours to the Muslim regressive forces.
Sadly, even the citadels of modern education such as the Aligarh Muslim University (AMU) and Jamia Millia Islamia –JMI- (with many claiming to be modern feminists) have also failed quite miserably in reaching out to the Muslim masses and freeing them from the clutches of the religious reactionaries. By now, enough of modern educated middle classes have emerged even among the otherwise marginalised Muslims. They shall have to play their roles. Better late than never!
Sections of media clapping over this legislation should pay more attention to the brazen manner in which the RTI Act is being diluted. Communal violence and mob lynching of Muslims are far more carnivorous. To deter this, no promising, appreciable bill is being drafted and introduced. All these amply reveal the ill intentions and motives of the government.
Lastly, the wrongs of the liberal-centrist forces and of majoritarian reactionaries would never add up to become right. The Muslim Women (Protection of Rights on Marriage) Act 2019 too shall have to be amended as soon as better sense would prevail on enough legislators.
Note: Its slightly abridged version was published in the Economic Times, August 1, 2019; Hindi rendering published on the same day in Rashtriya Sahara, Delhi.
(Professor Mohammad Sajjad of AMU has published, Muslim Politics in Bihar: Changing Contours, Routledge, 2014, 2018 reprint.)