The Shah Bano Controversy: A Case Study of Individual Rights, Religious Tolerance, and the Role of the Secular State

Communal Politics

The exploitation of religious confrontation as a political tool was not new in India. Used effectively by the British as a means of discouraging Indian national unity, religious nationalism was codified in 1935 with the passage of the Government of India Act which gave Hindus and Muslims separate political representatives and made religious identification the key to political power.23 Their focus on preservation of personal laws following the Shah Bano judgment became a means of unifying the Muslim community and gaining political strength to counter the Hindu majority. “Communal mobilization meant using Islam as a political adhesive between Muslim communities which would otherwise have little in common.”24 Political actors motivated by their desire for control transformed what should have been a compassion-driven judgment into an emotional battle of accusatory extremism.

Rather than a women’s rights issue, Shah Bano became a symbol for the discrepancy between the beliefs of Hindus and Muslims. Arguing that application of the CrPC to force Muslim men to pay maintenance to their wives interfered with the practice of Islam, Maulana Abdul Hasan Nadvi, the President of the AIMPLB, described preservation of the Shariat as “the most important problem for the Muslims of India.”25 The courts interpretation of the Qu’ran was portrayed as a violation of their constitutional right to religious freedom, with government threatening the Shariat and consequently the Muslim community. By presenting the issue as governmental activism to the detriment of Islam, Muslim fundamentalists invoked fear among many who had potentially favored further integration by inciting political mobilization along communal lines.

Syed Shahabuddin, leader of the conservative Janata party and newly elected Parliamentarian, opposed the judgment because he did not consider any facet of Indian government capable of properly applying the Shariat to the Muslim community.26 Shahabuddin accused the Supreme Court of showing “utter disregard for Muslim personal law.”27 The treatment of women became a distinguishing factor to promote communal solidarity, and conservatives rationalized the chauvinism through religious authoritarianism. The judgment “became a rallying point for a community afflicted by the siege mentality.”28 Muslim communalists like the Jamiyat-al-ulema-I-Hind portrayed adherence to the Shariat as vital to the preservation of the Muslim identity.29

Although the Shah Bano judgment could have been a great boon to the women’s movement in India, the violent division between the conservative AIMPLB and the RSS tainted the true issue. The court fulfilled its obligations, but Parliament responded fearing Muslim communal violence would threaten national security. Because the progressives could not “incite people to indulge in violence and become a threat to the internal security of the country,” the Rajiv Gandhi government opted for a speedy albeit backward solution. Feminists and both Hindu and Muslim progressives blamed Hindu communalists like the Rashtriya Swayamsevak Sangh for convoluting the issue of the uniform civil code.30

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Hindu extremists portrayed Muslim opposition to the judgment “as an example of the general backwardness of Muslims,” despite their own historical opposition to Article 44.31 In an Indian Telegraph interview of Arif Mohammad Khan, a Muslim parliamentarian who supported the Shah Bano judgment, Khan blamed Muslim conservative leaders who “were creating communalism and tension in society, which compelled the Government to bring in a measure which could diffuse the tension.”32 Despite his initial support of the Shah Bano judgment, in lieu of rising communal tension, Rajiv Gandhi bypassed an opportunity for social progression and sacrificed the individual rights of Shah Bano.

Allowing oppression of any member of a religious community weakens the entire community, and yet Muslim fundamentalists sacrificed the social needs of their citizens, exploiting Shah Bano to gain influence in the Rajiv Gandhi government. Group mobilization to gain political power forces recognition of the community, but makes it incumbent upon the community to extend those rights to each member. The actions of the AIMPLB represented the “flagrant exercise of a power-drunk autocracy,” flaunting their communalism as a political weapon.33 Rajiv Gandhi’s own electoral insecurities manifested in his response to communal interests. Where Nehru had sought to maintain national unity and make Indian Muslims feel secure, Rajiv Gandhi sought to placate Muslim fundamentalists and gain political security with his support of the Muslim Women Protection of Rights On Divorce Bill authored by A.K. Sen and presented to Parliament on February 19, 1986.34

Muslim Woman or Indian Citizen?

Public policy exists to meet the needs of all the citizens of the nation, and yet religious identity usurped the basic needs of an elderly citizen when Shah Bano’s duties as a Muslim interfered with her rights as an Indian citizen. Zoya Hasan, Chairperson of the Committee for the Protection of Rights of Muslim Women, speaking for the women’s movement, pointed out “in the guise of freedom of religion, Muslim women are being denied constitutional and human rights.”35 When communal identity conflicts with the duties of citizenship, it is that identity which must adapt. Personal laws necessitate the mutual exclusivity of the individual as both Muslim woman and Indian citizen, and in India it is only Muslims who are allowed to maintain personal laws.

The Shah Bano case brought back to the surface “contradictions generated by the constitutional guarantee of equality and non-discrimination for women and the continued applicability of personal law.”36 In their study on Muslim women in India, Zoya Hasan and Ritu Menon indicated that by not enforcing equality, the government facilitates inequality. Women’s advocates considered the continued absence of a uniform civil code to represent “state inaction which institutionalizes discrimination through religious personal laws.”37 The Muslim Women’s Bill, designed to placate Muslim communalists, placed maintenance for Muslim divorcees outside the purview of the CrPC. By codifying their subjugation, the bill was a cruel step backward for Muslim women and the women’s movement, making it almost impossible for divorcees to receive maintenance from a spouse unwilling to fulfill his legal obligations.

The bill limited the payment of maintenance upon divorce to the period of iddat, approximately three months, as well as repayment of mehr, or dowry.38 On the occasion the woman remained unable to support herself, responsibility for her care went to her relatives and failing that, to the State Wakf board. Wakf boards, however, were not guaranteed sources of support. They existed only in large cities, and not funded by the government subsist upon philanthropic donations from within the Muslim community. Additionally, only by obtaining the signed consent of her husband could a women petition the court under Section 125 of the CrPC.39

In his ruling, Chief Justice Chandrachud addressed the need for social reform in the Muslim community. Through its application of the CrPC to Shah Bano, the court sought to elevate the status of a population within Indian society whom had been “traditionally subjected to unjust treatment,” putting pressure on the Muslim community to justify the role of Muslim women in society.40 Social progression was treated as a threat to Islam, and preservation of religious identity was used to couch a multitude of non-democratic practices, namely the unequal treatment of women. The ruling threatened the embedded subjugation of women in the Muslim community, which “glorified the lot of Indian women by making a virtue of their required patience, self-denial and chastity.”41 Shah Bano was forced into destitution by the personal laws of the Muslim community and the government had the responsibility to protect her as an Indian citizen. Due to electoral politics, the Indian government did not fulfill that role.

The Muslim Women’s Bill exploited the traditions of tolerance and coexistence cultivated by Gandhi and Nehru. The Shariat represented the “structured disempowerment of Muslim women.”42 Article 44 of the Indian constitution ascribes the need for a uniform civil code as a means of ensuring the equal application of the law to the many and diverse sections of Indian society.43 The Muslim Women’s Bill reinforced a sectarian division upon the Indian women’s community. Communalism won, not Shah Bano, and not the women of India. The rights of women could not compete with those who claimed to speak for all of Islam, and would oppress the weak in the name of God or Allah. In a letter which she signed with only a thumbprint renouncing the Supreme Court ruling in her favor, Shah Bano expressed remorse about unwittingly “going against the Shariat” by petitioning the court for maintenance.44

With the guidance of conservative Muslims from Indore, Shah Bano was led to believe that the CrPC interfered with the practice of Islam and therefore she could not accept it as a true Muslim woman.45 The AIMPLB forced a contradiction between the national and religious allegiances of Indian Muslim women. The Muslim Women’s Bill was a violation of Article 15 of the Indian constitution, which says “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them,” by taking away the right of the Muslim woman to claim her status as Indian citizen.46 In the face of religious fundamentalism, democracies cannot allow religious tolerance to inhibit the application of constitutionally endowed rights.

Invisible Women

According to conservatives, Muslim women are defined by their role as wife and mother. Regardless of their role however, it is the government’s job to protect each citizen as well as to preserve national sovereignty, and “Muslim women probably comprise the poorest and most disadvantaged group in the country.”47 Secular laws do not seek to displace religious identity, but religious identity must accede to the laws of the state in which the individual resides. Their forced dependence upon their husbands, their paternal family, or the Wakf Boards keeps Muslim women from claiming their rights as equal citizens. “The litigant who approached the lower courts was a poor female Muslim subject made painfully aware of being disadvantaged by her religion and her sex, and in need of economic assistance.”48 Despite being a Muslim woman, Shah Bano had the right to petition the court for maintenance as an Indian citizen, and yet she was attacked by Muslim fundamentalists for seeking justice through Indian law rather than the Shariat.49

For fundamentalists, the patriarchal domination of women became symbolic of community strength. “Islam, to the Indian Muslim, became a matter of group differentiation and group solidarity rather than a system of immutable customs.”50 So any change in Islamic law, even regarding marriage and divorce was seen as a threat to the entire Muslim community. Differing religious traditions among Muslim communities in India dictate the role played by the women within the community, and the role of women is an integral part of the larger Muslim identity. According to Muslim fundamentalists, the court was attempting to “force a Muslim Indian to be a good citizen and a bad Muslim” by upholding laws that contravene the Shariat.51

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Because Muslim women in India are defined by their sex, personal laws like the Shariat directly oppress women. India is divided by the “legal separation of private and public through the continuation of personal laws, even though they are in direct contradiction of the Fundamental Rights of citizens.”52 Muslim women have continually been forced to resist legislative changes from which they would benefit in deference to their religious convictions. Shah Bano eventually renounced her award, and in essence her citizenship, having been socially ostracized and targeted with demonstrations and protests within the Muslim community.

Without a uniform civil code, traditionally weaker citizens are forced to rely upon the generosity and social consciousness of those who hold the power, and rights for some citizens are treated as privileges able to be withheld from others. For Muslim women, personal laws “make it difficult to overtly diversify their role playing, while symbolically maintaining their traditional identity.”53 By applying the CrPC to requests for maintenance, the courts hoped to prevent those with power from “suppressing the rights of Muslim women under the cover of some religious decrees which are neither authentic nor consistent with the humanistic and rational spirit of Islam.”54 The Fundamental Rights endowed by the Indian Constitution extend to all citizens, and communalistic politics usurped governmental obligations to meet the basic needs of a destitute woman; Shah Bano’s duties as a Muslim interfered with her rights as an Indian citizen.55

The Shah Bano Factor

During the Shah Bano controversy, religious practices become a method of political organizing and a means of acquiring support for representatives of communal strength rather than true concerns affecting a majority of the community. After the judgment, Muslim communalists gained the upper hand in Indian politics by making the vital issue one of religious freedom rather than social equality. The Indian Government avoided the long-standing tension between secularism and religious communalism by enabling the continuation of personal laws that were discriminatory toward Muslim women with their support of the Muslim Women’s Bill.

There were several issues at stake, including “government’s appeasement of Muslim fundamentalists, denial of rights to Muslim women, damage done to secularism, danger to unity of the country,” and the basic needs of Shah Bano herself.56 In an interview, Rajiv Gandhi spoke of his concerns for the fears among the larger Muslim community about the disappearance of Islam in India. With their support for the Muslim Women’s Bill Congress-I surrendered their commitment to sustaining the Indian Constitution to the demands of Muslim communalists.57

Rajiv Gandhi became concerned when Syed Shahabuddin of the Janata Party, an outspoken member of the movement against the Shah Bano judgment, defeated Congress-I candidate Maulana Asrarul Quasimi in the 1986 mid-term elections. Despite his acknowledgment of a need “to break through what [had] become a vested interest,” Prime Minister Gandhi supported Muslim communalists and their demands with the Muslim Women’s Bill.58 Mr. Gandhi admitted that his support of the bill was a proactive response to the feelings of vulnerability among Muslims in India rather than to protect the rights of women. Women’s groups like the NFIW (National Federation of Indian Women) felt abandoned by the government, and the AIDWA (All India Democratic Women’s Association) “said the government had bartered away the right of women for electoral gains.”59 Prime Minister Gandhi’s appeasement of communal groups was a figurative slap in the face to the women’s groups who had felt the Shah Bano judgement was a step in the direction of equality for Muslim women.

Rather than following the path of Nehru, the Rajiv Gandhi government gave in to communalists who chose to obscure the issue of women’s rights with religious fanaticism, and national identity was thus a casualty of communal demands.60 When drafting the constitution, Nehru and Ambedkar exercised neutrality toward religion to assuage the tense vulnerability felt among religious minorities, mainly Muslims. They tried to create a state that could enforce secularism without violating the rights of religious communities, but failed to account for those who would sacrifice the individual members of their communities for political purposes. Sensing an opportunity for political victory, the AIMPLB utilized religion as a vehicle of political mobilization. “The Ulamas and the Muslim leadership [were] not interested in the genuine and burning problems of the Muslim masses but appeal[ed] to them on emotional issues by raising a cry of Islam and the divine Shariat in danger and thus notice [d] them as vote banks”61 Muslim fundamentalists like the AIMPLB and Janata invoked fear as a distraction from the true issues plaguing a majority of the Muslim community.

The passage of the Muslim Women’s Bill represented a triumph of communalism over individual rights. Although conservative spokesman Syed Shahabuddin claimed the bill would “safeguard the majority voice of the minority community,” it actually forced the application of the Shariat upon all Muslims, even those who had supported the Shah Bano judgment.62 In his rush to pacify the fundamentalist uproar, Rajiv Gandhi did not consult with Congress-I Muslim leaders, only with those who had originally opposed the judgment.63 Prime Minister Gandhi ignored the multitude of letters and petitions from women supporting the bill.64

Danial Latifi described the bill, directed at his client Shah Bano, as “obnoxious to Islamic principles”65 and State Minister for Home Affairs, Mr. Arif Mohammad Khan, a Muslim member of the Lok Sabha, resigned following the presentation of the Muslim Women’s Bill. Fear of losing political support led Congress-I to sacrifice their moderate constituents to placate Muslim extremists, thus protecting their personal electability and facilitating the continuation of retrogressive laws. “The Muslims had felt at the time of independence and soon after, that India [would] protect their system,” and if supporting distasteful legislation would maintain the status quo, Rajiv Gandhi was willing to suborn principle to political power.66 Governmental appeasement of Muslim extremism through the maintenance of non-democratic personal laws was thus disguised as secularism.Continued on Next Page »