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

Secularism and Sovereignty

The Shah Bano case led to an abuse of secular ideals to gain political power. An unforeseen and perhaps unavoidable discrepancy in the creation of the Indian Constitution was the maintenance of Muslim personal laws. The secular state both “keeps religion apart from the state for the sake of religious liberty…” and “ensures equality of free citizenship.”67 The Indian government demands not just tolerance and coexistence, but respect for and acknowledgement of all religions, the two largest being Hinduism and Islam. Religious politicization demands the need for an aggressive secularism to balance the power of the federal government. “Culture nationalism…calls for the erasure of all specific identities and demands the constitution of a culturally homogenous nation,” which could not work for India.68 Secular nations cannot allow religion to distort their commitment to egalitarianism, and yet the Shah Bano controversy threatened India’s tradition of religious tolerance, and raised the question of how a secular nation should treat a religious minority that threatens national sovereignty.

Indian secularism mandates national respect for all religions, and yet tolerance of traditional inequalities, even those propagated by citizens who proclaim moral righteousness, is unacceptable and yet common in certain religious communities. “By insisting that on some matters Muslims should be exempt from the requirements of secularism, Muslim and government leaders progressively eroded the very secularism on which the security of Muslims depended in a Hindu-majority country.”69 Any law that affects the religious practices of a community would appear to that community as non-secular. By politicizing religion, the line between church and state became blurred, weakening the commitment to secularism and threatening the validity of the Indian Constitution.

Secularism facilitates governmental ability to meet the evolving needs of all its citizens equally. Laws should be considered legitimate just so long as they have the goal of preserving the rights of citizens without regard to the religious practices of those citizens. Arguing, in his judgment in Shah Bano, “the religion professed by a spouse or by the spouses has no place” in determining the legal requirement for maintenance, Chief Justice Chandrachud adhered to the secular intentions of the constitution.70 Political stability depends upon equal application of the law to all citizens. The maintenance of communal identities hinders the survival of an Indian identity, and devalues the meaning of citizenship.

There is an important difference between a state that is tolerant and a state that is secular. While the goal of secularism is to respect religious identity while protecting the equal rights of citizenship, “to tolerate is to refrain form interfering in the affairs of any individual or group, however disagreeable or morally repugnant, even though one has the power to do so.”71 By applying the CrPC, the court prevented conservative Muslim men 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.”72 Application of what was a secular criminal code ensured objectivity and was designed to protect religious rights. Secularism demands that people are treated as equal individual citizens of India and not as cogs in a machine of religiosity, and even allows them to abstain from the practice of any religion.73 Difficulty arises when a religious identified group is in the majority and holds political power, and the Shah Bano controversy exemplified the need for “a balance between the rights of individuals, the interests of collective entities, and the interests of the state.”74 Shah Bano’s rights as an Indian citizen and the egalitarian, democratic ideals of the Indian constitution were subordinated to the religiosity of an aggressive interest group.

Communalists made religion a threat to Indian democracy. Their opportunistic demands were destructive to the premise of religious tolerance, and made religion seem inadaptable to life in a modern society. Because the fundamentalist interpretation of “religion decrees subservience to authority, non-negotiable dogma, and a willingness to bear any sacrifice and pay any price in pursuit of paradise in the world beyond time” Muslim extremists abandoned their investment in progressive democracy.75 In the letter she dictated renouncing the Supreme Court ruling in her favor, Shah Bano expressed remorse about unwittingly injuring the Muslims of India by following the constitution rather than the Shariat.76 Due to the violent divisions promoted by escalating communalism, she was unable to survive as both a devout Muslim and a practicing democrat. Exploiting the secularism that enabled them to maintain their personal laws and hence their religious identity, the AIMPLB sacrificed Indian democratic values for political power.

Conclusion

In a secular democracy, the state must intervene when a community does not extend equal rights to each member of that community. The government must utilize its power to force religious communities to treat each individual members of the community in accordance with the laws of the nation state, even if doing so weakens the communal identity. Religious practices can be maintained in a secular nation. However, with the Shah Bano controversy, communal groups sullied the traditions of religious tolerance and cultural diversity for which India is known by politicizing their extreme demands. In a vast political system like India’s, certain elements depend upon their religion as the basis for their social interactions, and on occasion, only through recognition of group rights can the needs of each individual within the group be met. With their involvement in the case of Shah Bano, religious communalists forced a needless contradiction between the personal religious practices of the individual and that individual’s adherence to the democratic principles of the Indian constitution.

Fundamentalism must yield to modernity because the regressive necessity of religious traditions negates the social progression necessary for democratic success. Religion and the individual become so intertwined that one cannot act without affecting the other, and neither can easily adapt to modern society. In an effort to moderate their judgment, the Supreme Court reconciled their ruling with the Qu’ran and in so doing left themselves open to criticism by Muslim fundamentalists for overstepping their bounds. Respect for religious laws cannot outweigh adherence to secular laws, and attempting to temper constitutional law through a filter of religiosity is unnecessary and detrimental to the unity of the nation. Personal laws that violate the constitution should not be allowed. A uniform civil code would rectify that problem. The Muslim community, like the entire country, contains both liberals and conservatives. Only when the law is applied equally to each citizen will secular democracy prevail.

It is the women in the Muslim religious community that are subjugated by personal law. Membership in a religious group should not negate one’s entitlement to justice, especially when that individual is involuntarily forced to endure subjugation, as was Shah Bano Begum. The sovereign state must intervene when a community does not extend the rights of citizenship to each member. The Indian government failed Muslim women by passing legislation that allowed the continuation of non-democratic practices within the Muslim community.

The sovereign state must utilize its power to ensure religious communities treat their individual members in accordance with the laws of the nation-state, even if doing so weakens the communal identity. Fundamentalists cannot exist successfully in a modern democracy, just as secular democracy cannot succeed by constantly yielding to communal demands. Communalism distorts secular ideals and individual rights in the name of political expediency. The Shah Bano controversy made tangible the concept that traditions of oppression should not be maintained, and to do so in the name of religion is not acceptable in a secular democracy.

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References

Agnihotri, Indu and Vina Mazumdar. “Changing Terms of Political Discourse: Women’s Movement in India, 1970’s-1990’s,” Economic and Political Weekly 30, no. 29 (July 1995): 1869-1878.

Engineer, Ali Ashgar, ed. The Shahbano Controversy. Hyderabad: Orient Longman, 1987.

Gani, H.A. Reform of Muslim Personal Law: The Shah Bano Controversy and The Muslim Women (Protection of Rights on Divorce) Act, 1986. New Delhi: Deep and Deep Publications, 1988.

Guha, Ramachandra. India After Gandhi: The History of the World’s Largest Democracy. New York: HarperCollins, 2007.

Hasan, Zoya, and Rita Menon. Unequal Citizens: A Study of Muslim Women in India. New Delhi: Oxford University Press, 2004.

Hasan, Zoya, E. Sridharan and R. Sudarshan, eds. India’s Living Constitution: Ideas, Practices, Controversies. London: Anthem Press, 2005.

Lateef, Shahida. Muslim Women in India: Political and Private Realities, 1890’s-1980’s. London: Zed Books Ltd., 1990.

Misra, Kalpana. “Indian Feminism and the Post-Colonial State.” Women and Politics 17, no. 4 (1997): 25-45.

Mody, Nawaz B. “The Press in India: The Shah Bano Judgment and Its Aftermath.” Asian Survey 27, no. 8 (August, 1987): 935-953.

Novlakha, Gautam. “Ruling Party’s Defense of Muslim Women’s Bill.” Social Scientist 14, no. 6 (June 1986): 55-58.

Pathak, Zakia and Rajeswari Sunder Rajan. “Shahbano.” Signs 14, no. 3 (Spring 1989): 558-582.

Thakur, Ramesh. “Ayodhya and the Politics of India’s Secularism: A Double-Standards Discourse.” Asian Survey 33, no. 7 (July, 1993): 645-664.

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Endnotes

1.) Ramachandra Guha, India After Gandhi, The History of the World’s Largest Democracy (New York: Harpercollins, 2007), 234.

2.) Guha, India After Gandhi, 234.

3.) Ibid.

4.) Guha, India After Gandhi, 247.

5.) Ibid., 235.

∗ The Rashtriya Swayamsevak Sangh, known as the RSS, along with other communal groups, was banned for a time following the assassination of Mahatma Gandhi by Nathuram Godse who opposed what he considered was Gandhi’s constant appeasement of the Muslims.

7.) Guha, India After Gandhi, 237.

8.) Ibid., 163.

9.) Supreme Court of India Criminal Appellate Jurisdiction, Criminal Appeal No. 103 Mohd. Ahmed Khan vs. Shah Bano Begum and others, 1981 ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 23.

10.) Shahida Lateef, Muslim Women in India (London: Zed Books, Ltd.), 192.

11.) Engineer, Supreme Court, 23.

12.) Ali Ashgar Engineer, The Shah Bano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 7.

13.) Supreme Court, Criminal Appeal No. 103, 25.

14.) Supreme Court, Criminal Appeal No. 103, 23.

15.) Ibid.

16.) Lateef, Muslim Women, 198.

17.) Engineer, Supreme Court, 25.

18.) V. R. Krishna Iyer to Rajiv Gandhi, 1986, in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 91

19.) P. Jaganmohan Reddy, “Shah Bano Verdict and Muslim Law,” in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad; Orient Longman, 1987), 45.

20.) Zakia Pathak and Rajeswari Sunder Rajan, “Shahbano,” Signs 14, no. 3 (Spring 1989): 561.

21.) H.A. Gani, Reform of Muslim Personal Law: The Shah Bano Controversy and The Muslim Women (Protection of Rights on Divorce) Act, 1986 (New Delhi: Deep and Deep Publications, 1988), 100.

22.) Nawaz B. Mody, “The Press in India, The Shah Bano Judgment and Its Aftermath,” Asian Survey 27, no. 8 (August 1987): 952

23.) Sunil Khilnani, “The Indian Constitution and Democracy,” in India’s Living Constitution: Ideas, Practices, Controversies, eds. Zoya Hasan, E. Sridharan, R. Sudarshan (London: Anthem Press, 2005), 67.

24.) Lateef, Muslim Women, 13.

25.) Maulana Asad Madani, “What Prominent Muslims Say: It is No Crime for Muslim Women to Raise Voice against Oppression,” in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 209

26.) Madhu Mehta to Indian Express, 1986 in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 228.

27.) Syed Shahabuddin, interview by Paromita Ukil, Ybaraj Ghimire, Lekha Dhar and Prashun Bhaumik, How Do Muslims View the Divorce Bill? in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 155.

28.) Gautam Novlakha, “Ruling Party’s Defence of Muslim Women’s Bill,” Social Scientist 14, no. 6 (June 1986), 1691.

29.) Neera Chandhoke, “Individual and Group Rights: A View From India,” in India’s Living Constitution: Ideas, Practices, Controversies, eds. Zoya Hasan, E. Sridharan, R. Sudarshan (London: Anthem Press, 2005), 230.

30.) J.S. Arora, Rajni Kothari, Ramdayal Munda, Tahir Mahmood, Asok Mitra, V. Anaimuthu, Iqbal Masud, Madhu Kishwar, Gursharan Singh, Balraj Puri, Kaifi Azmi, “Convention on Communalism and the Threat to Diversity,” Economic and Political Weekly 21, no. 43 (October 25, 1986): 133

31.) Misra, “Indian Feminism,” 33.

32.) Arif Mohammad Khan, interview by Seema Mustafa, “The Muslim Women’s Bill,” in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 125.

33.) Pathak and Rajan, “Shahbano,” 564.

34.) Engineer, Supreme Court, 23.

35.) Zoya Hasan, interview by Paromita Ukil, Yubaraj Ghmire, Lekha Dhar and Prashun Bhaumik, “How Do Muslims View The Divorce Bill?” in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 158.

36.) Kalpana Misra, “Indian Feminism and the Post-Colonial State,” Women and Politics 17, no. 4 (1997): 32.

37.) Hasan and Menon, Unequal Citizens, 243.

38.) Engineer, Supreme Court, 23.

39.) Ibid.

40.) Ibid.

41.) Lateef, Muslim Women, 10.

42.) Zoya Hasan and Ritu Menon, Unequal Citizens: A Study of Muslim Women in India (New Delhi: Oxford University Press, 2004), 242.

43.) Mody, “The Press in India,” 944.

44.) Shah Bano Begum, “Shah Bano’s Open Letter to Muslims,” in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 211.

45.) Begum, “Open Letter,” 211.

46.) Rajeev Bhargava, “India’s Secular Constitution,” in India’s Living Constitution: Ideas, Practices, Controversies, eds. Zoya Hasan, E. Sridharan, R. Sudarshan (London: Anthem Press, 2005), 112.

47.) Hasan and Menon, Unequal Citizens, 6.

48.) Pathak and Rajan, “Shahbano,” 571.

49.) Bhargava, “India’s Secular Constitution,” 112.

50.) Lateef, Muslim Women, 13.

51.) Syed Shahabuddin to Indian Express, 1986, “Uniform Civil Code,” in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 229.

52.) Hasan and Menon, Unequal Citizens, 244.

53.) Lateef, Muslim Women, 126

54.) Memorandum By Committee For Protection Of Rights Of Muslim Women, Mainstream, March 8, 1986, in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 219.

55.) Bhargava, “India’s Secular Constitution,” 112.

56.) Gautam Novlakha, “Ruling Party’s Defence of Muslim Women’s Bill,” 1691.

57.) Indu Agnihotri and Vina Mazumdar, “Changing Terms of Political Discourse: Women’s Movement in India, 1970-1990s,” Economic and Political Weekly 30, no. 29 (July 1995): 1873.

58.) Rajiv Gandhi, interview by M.J. Akbar, The Telegraph, March 12, 1986, in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 122.

59.) H.A. Gani, Reform of Muslim Personal Law, 100.

60.) Mody, “The Press in India,” 952.

61.) Irfan Engineer, “Leadership Exploiting Masses,” The Daily, December 25, 1985, in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 75.

62.) Syed Shahabuddin, interview by Paromita Ukil, Yubaraj Ghmire, Lekha Dhar and Prashun Bhaumjik, in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 155

63.) Seema Mustafa, “Behind the Veil,” in Ibid., 114.

64.) H.A. Gani, Reform of Muslim Personal Law, 35.

65.) Danial Latifi, “The Muslim Women Bill,” in Ibid., 103.

66.) Rajiv Gandhi, interview by M.J. Akbar, in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 123.

67.) Bhargava, “India’s Secular Constitution,” 22.

68.) Chandhoke, “Individual and Group Rights,” 217.

69.) Ramesh Thakur, “Ayodhya and the Politics of India’s Secularism: A Double-Standards Discourse,” Asian Survey 33, no. 7(July 1993): 649.

70.) Engineer, Supreme Court, 25.

71.) Bhargava, “India’s Secular Constitution,” 111.

72.) Memorandum By The Committee For Protection Of Rights Of Muslim Women, in The Shahbano Controversy, ed. Ali Ashgar Engineer (Hyderabad: Orient Longman, 1987), 219.

73.) Bhargava, “India’s Secular Constitution,” 108.

74.) Thakur, “Ayodhya,” 660.

75.) Ibid.

76.) Shah Bano Begum, “Shah Bano’s Open Letter to Muslims,” 211.