From Shahbano to Sachar

SHAHIDA LATEEF

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WHEN historians and political analysts look back at the period between the Supreme Court decision on the Shahbano case in April 1985 and the Sachar Committee Report in November 2006, they will need to evaluate the political and economic significance of events during that period on the country, the Muslim community, and Muslim women. These events challenged all three and continue to have profound political and economic consequences for Muslims. The underlying tensions that began with the loss of political power in the 19th century, and the country’s subsequent partition at independence in 1947, have never been dealt with adequately, either by the Indian state or by the sizable Muslim community that remained in India. The period then represents issues on a continuum for the Muslim community, before and after independence, issues of their status and its determinants, which are still in search of resolution.

As with partition and independence in 1947, the events between Shahbano and Sachar polarized the Indian polity and created fissures within the Muslim community. The polarization between the Hindu and Muslim communities has been sharpened by the rhetoric of Hindu right wing parties that have projected communal differences as reflecting adversarial economic and political interests. The divisions within the Muslim community between conservatives and liberals and between Muslim men and women, particularly in matters of marital and inheritance rights, has also grown and deepened in that period.

In the process, secular Indian laws that could be applied to all communities and invoked to assist Muslim women became a casualty in the aftermath of the critical Supreme Court judgment in 1985 when they were seen as precipitating the Shahbano crisis. Beginning with the rath yatra in 1984, Hindu right wing parties had been sharpening their anti-Muslim message with a view to politically consolidate the diverse Hindu community. The struggle of Muslim women to secure their rights and the Supreme Court judgment became a convenient handle to chastise the community as a whole, and the government for ostensibly ‘appeasing’ them through ‘pseudo-secular’ measures designed only to win Muslim votes.

 

The Hindu nationalist agenda, based on historical grievances going back to the 13th century, was driven by the electoral calculation that political power can be attained through a consolidation of the Hindu vote by banking on the potency of anti-Muslim propaganda. This has at times produced an equally irrational response from the so-called leaders of the Muslim community and from the All India Muslim Personal Law Board (AIMPLB). The board seeks to perpetuate Muslim personal law as defined by the 1937 Shariat Act pertaining to the inheritance rights of Muslim women and the 1939 Dissolution of Muslim Marriages Act on divorce. The board also favours a more literalist view, without the benefit of more nuanced interpretations current in several Muslim societies. This has brought it into direct conflict with the rights Muslim women are seeking in order to deal with the exigencies of the political and economic reality they face in modern societies.

Muslim women, therefore, find that they are under pressure both from the Hindu and the Muslim right. Subject to the political and economic attacks of the former, they find little political or economic support from the latter in their struggle to survive changes sweeping through India. Their small steps towards attaining the rights afforded them in the Quran or in the Indian Constitution have resulted in reverses for them and the community, both undermining their efforts and strengthening the determination of the Muslim right wing to resist changes in their legal status.

 

The Shahbano controversy was triggered by the attempt of Shahbano to obtain maintenance from her husband Mohammad Khan when he divorced her and remarried. The case wound its way through the Indian justice system to the Supreme Court in April 1985. The verdict awarded Shahbano maintenance under Criminal Procedure Code 125, a vagrancy clause of the Constitution. Chief Justice Chandrachud went further, exhorting the government to legislate a Uniform Civil Code under Article 44 of the Constitution. A firestorm erupted, as both the Hindu and Muslim right wing were ready for the verdict. The Muslims decried the ruling of the Chief Justice and demanded its recall, the Hindu right saw it as yet another opportunity to inflame public opinion against Muslims. Neither side was concerned with alleviating the position of indigent Muslim women.

The government, which initially appeared to support the Supreme Court judgement succumbed and introduced the Muslim Women (Protection of Rights in Divorce) Bill in 1986. The bill deprived Muslim women of the constitutional protection of Cr.pc125, leaving it to local judicial authorities to determine the woman’s case. The request for maintenance would be referred to the woman’s family and, if that failed, to the waqf boards or Muslim charitable institutions. It, however, left the option of court proceedings open to Muslim women, an expensive and time consuming option.

The bill went through despite widespread protests from a number of groups, including Muslim women’s groups. As a result of this almost year-long politically and socially intense debate and acrimonious wrangling over the provisions of the bill, Muslims and Hindus grew further apart.

 

In order to counteract the effectiveness of the Hindu right propaganda and to counterbalance the Muslim Women’s Bill, the Congress government first allowed the Babri Masjid, a mosque in Ayodhya long claimed by Hindus as the birth place of Lord Ram, to be opened to Hindu worshippers, and subsequently allowed the shilanyas or the laying of ‘holy bricks’ for the possible construction of a temple at a future date. The period between the passage of the Muslim Women’s Bill in 1986 and the destruction of the mosque in December 1992 was one of rising communal tensions. The Muslim community formed the Babri Masjid Action Committee to try and save the structure. As in the earlier struggle against the Muslim Women’s Bill, the Hindu right wing attempted to mobilize Hindus on a purely anti-Muslim agenda.

While agitation for the establishment of a temple in place of the Babri Masjid had preceded the Shahbano case, it gathered momentum in its wake, eventually leading to the destruction of the mosque. The aftermath produced the desired result: Hindu-Muslim strife escalated all over the country. The Muslim underground mafia in Maharashtra where there had been targeted killing of Muslims, bombed the Bombay Stock Exchange in what was considered revenge action. The Ayodhya demolition and its aftermath was a triumph for the political strategy of the Hindu right wing of sharply demarcating Hindu interests from those of the Muslims not just politically but socially and economically. It eroded the common ground that had existed between the communities within the construct of a secular Indian state, wherein justice and common citizenship would impartially guide their lives.

 

In February 2002, the Babri Masjid incident once again muddied Indian politics when a train compartment carrying Hindu activists returning from Ayodhya caught fire at Godhra in Gujarat resulting in the death of 50 people, allegedly by Muslims. This was followed by widespread killings, looting and rape of Muslims throughout the state, even as the state authorities stood aside. The riots spread to other parts of the country, particularly to neighbouring Maharashtra. As Muslim workers at the textile mills and docks were targeted, the economies of those states was paralyzed. Despite the actions of several NGOs, and the efforts of the Supreme Court to hold the Gujarat government responsible, justice for the almost 2,000 killed over many months remains elusive.

The cumulative effects of these events on the Muslim community cannot be immediately gauged. But there appear to be changes that are both positive and negative. On the positive side Muslim communities appear to have come of age realizing, almost for the first time since independence, that there were no saviours the community could turn to. There were no political parties, state or national government to uphold their rights. They would have to chart their own course in politics just as they had learnt to be self-reliant in employment after partition. On the negative side the community has been retreating from or fearing the Indian polity, being let down by a Muslim leadership bent on ignoring the very real problems of Muslim women.

 

It is in this context that the Justice Rajinder Sachar Committee, appointed by the Congress coalition government in 2005 to evaluate the position of the Muslim community on a variety of economic and social issues, must be viewed. The committee’s report1 compares the Muslim community’s progress since independence to that of other socio-religious communities. The committee provides a detailed and compelling account of the demographic, social and economic position of the Muslim community. Both the data and analysis constitute an indictment of the community and of successive governments since 1947, particularly with regard to education and economic opportunities available to the Muslim community.

The report dispels oft repeated myths regarding Muslims:

* that Muslims will surpass Hindus in population; they won’t.

* that Muslims preferred madrasa education; they don’t.

* that Muslim women are particularly disadvantaged; they aren’t.

* that Muslims are ‘appeased’; they are in fact discriminated by government and are relatively poor.

By focusing on the differential status of Muslims belonging to different states and castes, the Report demolishes the myth of a homogenous community. This acknowledged, it found that Muslims were disproportionately disadvantaged in the allocation of resources and hiring practices by both the government and the private sector. The committee argues that Muslims ‘carry a double burden of being labelled as "anti-national" and as being "appeased" at the same time,’ noting that the alleged appeasement has not resulted in the desired level of socio-economic development of the community.2

Demographically, Muslims constitute 13.4% of the Indian population, averaging a population growth of 2.7% per annum against an average of 2.1% for the Hindu community. However, Muslim population growth declined between 1991 and 2001 in most states and the Muslim share of the population is projected to stabilize at between 18-19% by 2100. Muslims enjoy relatively favourable sex ratios and lower levels of infant mortality irrespective of income levels, indicative of a lack of apparent discrimination between sexes.

 

The literacy rates among Muslims in 2001 was 59.1%, much lower than the national average of 64.8%. However, the literacy rate for Muslim women at 50% is comparable to those of Indian women as a whole. Muslim literacy levels tend to mirror regional trends. Kerala, Karnataka, Maharashtra, Andhra Pradesh and Tamil Nadu, have consistently led the rest of the country in literacy and this is true of Muslims as well. Even as Jharkhand, Chhattisgarh and Orissa are now noted for higher literacy rates for Muslims, they lag behind in Delhi, U.P., Bihar, Haryana and Madhya Pradesh.

Contrary to popular perception only 3% of Muslim school goers are enrolled in madrasas, often the only avenue available since access to government schools, roads and other infrastructure is missing in the case of Muslim villages and areas. Poverty rates among Muslims are therefore higher in both rural and urban areas. Tellingly, the report notes that unemployment rates among Muslim graduates is highest among all socio-religious communities.

 

The adverse economic status of the Muslim community is partly due to the under-representation of Muslim women in the workplace, 25% as against 44% for others, and this is even lower in urban areas. However, Muslim women tend to predominantly work from home (70%).

The report notes that since so many Muslims are self-employed, their need for access to credit is great. Yet this is not reflected in their participation in programmes supported by the Small Industries Development Bank of India or the National Bank for Agricultural and Rural Development, institutions particularly directed to assisting small entrepreneurs. Even credit flow from the National Minorities Development Financial Corporation has remained inadequate.

The lack of representation is also reflected in government employment at all levels and in all states, with West Bengal showing the worst record. While, according to the National Sample Survey, 40.7% of the Muslim population fall into the Other Backward Class, and constitute 15.7% of all OBCs, they do not reap the benefits that accrue to Hindu OBCs.

In the area of employment, discrimination and the adverse effects of globalization appears to combine with the lack of bargaining power for workers, and the lack of access to credit for self-employed workers affects community members adversely. Moreover, low political representation compounds their ability to be heard in government forums. Voter lists that exclude Muslims and the reservation of majority Muslim areas for SC candidates further contribute to the lack of empowerment. Nevertheless, the committee did not favour reservations except when they were need-based or for dalit Muslims. It further argued that no reservations would be necessary if unequal access and discrimination was removed, or if there was better implementation of existing policies and programmes.

After the findings of the Sachar Committee, the National Commission for Minorities identified five areas in which government programmes could make a difference: education, employment, bank credit, physical, social infrastructure and recruitment procedures.3 These include setting up schools in Muslim localities alongside enhanced credit facilities and marketing support to help self-employed workers and public investment in infrastructure. These measures would fall within the 15 point programme already launched by government to focus on the poor since 15% of those targeted are minorities.

 

The present government is to be commended for commissioning the report on the Muslim community, despite attacks from the Hindu right wing accusing them of pandering to the community. Earlier governments challenged by the Shahbano case and subsequent events fumbled by not supporting the Supreme Court decision on Shahbano, not mounting a robust defence of the Constitution, and by not defending the principle of secularism or affirmative action when it came under attack as ‘pseudo secularism’ or ‘appeasement’ of minorities.

Nor did successive governments publicly challenge the Hindu right wing attempts to drive a wedge between communities. They did not even refute the oft-repeated assertion that Muslims were responsible for not allowing a uniform civil code to be passed in Parliament. Through their silence, secular parties ceded ground to an absorption of anti-Muslim propaganda. The entire exercise undertaken by the Sachar Committee would not have been necessary had governments been able to ensure economic opportunities for all citizens through governance and impartial justice. Even after the report there is cynicism regarding implementation of its recommendations.

 

After the Gujarat massacre, Muslim civil society groups have moved away from relying on the main political parties which are driven by their own agenda during election years. A sign of the realpolitik is apparent in Godhra where the BJP has 19 members in a civic body that also has 18 independent, rather than politically affiliated, Muslim council members. There has also been a rejection of efforts to found a Muslim party in U.P., preferring instead to pick candidates from different parties after assessing their potential for the community.4

Despite efforts made by the Gujarat government, before and since the killing of Muslims in 2002, to marginalize Muslims and declare that Muslim refugees ‘do not form an integral part of Gujarati society and politics’, the community resisted attempts by right wing parties to provoke communal incidents in the pre-election period. The apathy of the state has left the field open to NGOs. An Islamic Relief Committee is buying the land on which refugee camps have been constructed. A group of NGOs also organized a Convention of the Internally Displaced in Gujarat. The Election Commission too recognized the need for the refugees to be registered to vote, and enabled them to acquire voter-identification cards.5

 

Unfortunately, the Muslim Personal Law Board continues to cling to the perceived symbols of identity such as the Shariat Act, while disregarding the impact of current economic, political and social conditions on the Muslim women. The conservative Muslim agitation against the Supreme Court judgment and the passage of the Muslim Women’s Bill, excluding them from certain constitutional provisions, was a remarkable achievement for a body ostensibly promoting the interests and Constitutional rights of the Muslim community! As it turns out, Muslim women have not been deterred by the impediments imposed by the 1986 act. Their use of the courts has met significant success, as demonstrated by Ali vs Sufaira in 1988. The judgment clarified that the unmistakable intent of the act was to protect the interests of divorced Muslim women,6 and that this was supported by the husband’s obligation on divorce, through mehr payments and maintenance as understood in Sharia law.7

In order to prevent further legal action by Muslim women, the AIMPLB endeavoured to come up with a standardized nikahnama form specifying the terms of the marriage contract. But since these were non-binding on the parties it was a futile effort. In 2005 the minority Muslim Shia, distancing itself from the AIMPLB, set up a separate All India Shia Personal Law Board (AISPLB). In 2006 it announced a new nikahnama form that was more protective of women’s rights even as it liberalized the grounds on which women could seek a divorce. These are seen as more protective of women’s rights than the Hanbali school of jurisprudence followed by the Deoband Darul Uloom.8 This also ignores the Shafi, Maliki, and Hanafi laws that were drawn upon when the 1937 and 1939 Shariat Acts were formulated.9

 

Muslim women have also been pro-active in establishing new organizations to represent them. In U.P. and Tamil Nadu, women have not only set up a personal law board, but also a mosque that caters exclusively to women. The All India Women’s Personal Law Board was established in 2005 to give alternative interpretations of the provisions of the Sharia with regard to inheritance, marriage, divorce and maintenance. In Tamil Nadu there has been considerable support for establishing a women’s jamaat and now this is to be extended to a women’s mosque where women would hold all the key positions.10

In December 2006, the Supreme Court directed state governments to formulate rules that would oblige all marriages to be registered. The AIMPLB opposed it while the AISPLB supported it, noting that it was in no way inconsistent with Muslim personal law. Registration would prevent child marriages, check illegal bigamy and polygamy, prevent marriages without the consent of the parties, enable women to claim their right to live in the matrimonial house and to seek maintenance, enable widows to claim inheritance, and deter trafficking in women.11

Though the last two decades have been politically difficult for the Muslim community and for Muslim women, there are signs of resilience in both, including signs of political maturity in the form of a judicious use of the vote and independence from the grasp of single party affiliations. Whereas previously political parties relied on well-connected Muslims in Muslim majority constituencies, there is now an effort by grassroots Muslim leaders to carve out and establish themselves on the basis of work and service. Women too have sought to create a space for themselves by forming organizations that challenge the mindless orthodoxy of Muslim conservatives and the AIMPLB by invoking the inherently individual rights bestowed on Muslims irrespective of gender to make their case.

 

In the end, while nothing can be done to reverse the events of the last twenty years, the seemingly myriad afflictions of the Muslim community and those of Muslim women are neither intractable nor irreversible. Better governance and political and criminal accountability should help bridge the gap between communities in economic and educational terms. Similarly, joint struggle by reform minded men and women within the community, for instance by publicizing the benefits of the special Marriages Act of 1964, should spur the legal and attitudinal changes in the community. In the end, only better governance at all levels and treating all citizens as Indians can erode the communal divide.

 

* Shahida Lateef is the author of Muslim Women in India – Political and Private Realities 1890s-1980s, Kali for Women, Delhi, 1990.

Footnotes:

1. Prime Minister’s High Level Committee, ‘Social, Economic and Educational Status of the Muslim Community of India – A Report’, Cabinet Secretariat, Government of India, November 2006. See also a symposium on the report in Economic and Political Weekly, 10 March 2007, pp. 828-845.

2. Ibid., pp. 11-12.

3. Hindustan Times, 28 March 2007.

4. Smita Gupta, ‘The Muslims of Uttar Pradesh’, Economic and Political Weekly, 9 June 2007, pp. 2143-2145.

5. Neera Chandhoke, et. al, Economic and Political Weekly, 27 October 2007, pp. 10-14.

6. D. Pearl and W. Menski, Muslim Family Law (third edition), Sweet and Maxwell, London, 1998, pp. 216-217.

7. Ibid., p. 222.

8. Economic and Political Weekly, 2 December 2006, p. 4928.

9. Shahida Lateef, Muslim Women in India, Kali for Women, Delhi, 1990, p.71.

10. Sunita Aron, Hindustan Times, 24 October 2007, p. 1.

11. Satya Prakash, Hindustan Times, 26 October 2007, p. 1.

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