Amid the existential crises of Indian Muslims after Partition, the constitutional assurances given to the collective identity was vital in ameliorating the fears of the Muslim community. While individual freedoms are tenable while interpreting the constitution, recognition of the collective identity of the Muslim community by the way of State protection for colonial era Muslim Personal Law and special powers for minority institutions helped integrate Muslims in the fledgling Nation.
When the Nehru government feverously pushed the agenda of codification Hindu Code, Muslims were spared. Nehru was of the opinion that Muslims being an embittered minority, the State shall not force changes in Personal Law and; instead support all Community-led reform movements. His was a prudent political act to forestall militant Community mobilization.
As pointed out by Muhamed Qasim Zaman, Muslims in Indian subcontinent were aware of the colonial nature of the Muslim Personal Law and an undercurrent of reform was prevalent among the Faithful. It was Ashraf Ali Thanawi who fiercely endorsed flexibility and contemporary changes in Muslim Personal Law to shake off imperialist connotation of Muslim Laws. Scholars like Justice Ameer Ali, Asaf A. Fayzee, and Muhammed Ismail Sahib were aware of the legal changes in contemporary Muslim communities and the vested interests of Colonial powers in feudalizing legal cannon of Islam. The Muslim Shariat Act of 1937 and Marriage Dissolution Act of 1939 were in fact nascent steps towards gradual progression towards modernization and codification of Muslim law in the Subcontinent.
According to Zoya Hassan, the political insecurity after Partition led to an abrupt halt to the codification of Muslim Law and, instead, the identity fears of the Community manifested in their staunch support to Colonial era Personal Laws. It was viewed as final concession to Indian Muslims hence to be safeguarded at any cost. Modernization and codification were relegated to backburner for the protection of limited constitutional rights. Narendra Subramanian has documented the role of Personal Laws in the formation of Muslim identity in India.
Era of Community-Led Internal Reforms
The relative immunity from State intervention expedited internal reform in the community. The jolt of reality in independent India accentuated the pace of internal reforms. Staring at the bleak reality of Indian Muslims, Community leaders, cutting across various factions, supported internal reforms in varying degrees. Women education was promoted. Women visibility in formal and informal sectors was motivated. Hadeeth literature was studied to reform existing Muslim canonical laws.
The general reading of Indian Muslims as a monolithic community often glosses over the vibrant diversity underlying the regional differences in Islam. In South Indian Muslims, due to historical reasons, internal reforms were at meteoric rise whereas the North Indian counterpart took a lackadaisical approach. While elite upper caste Muslims sensed opportunity in the scarce crumbs the new republic threw to them, other marginalized sections of the society soon appropriated internal reform thanks to evolving situations.
Secular education got wider acceptance among the Community. Madrassas and Maktabs, established exclusively for religious education, showed promising interest in integrating school education. Many states enacted laws with the consensus of the Community. The induced reforms with the blessings of community were making substantial strides in reforming the community. And with Shah Bano all hell broke loose.
The Shah Bano issues of 1980s changed the course of Muslim reform movements. The conservative and reactionary clergy tightened their grip on the Community. Progressive sections were relegated into irrelevance. Major concession by Rajiv Gandhi government to the conservative section by overruling the then Supreme Court verdict proved fatal for the progress of the Community.
Rise of Hindutva Politics and Increasing Legal Conservatism among Muslims
The failure of Janata Government initially laid the foundation for Hindutva politics. Later, Mandal politics inflamed religious passion and Kamandal politics surrounding Babari Masjid only hastened the growth of right wing Hindutva politics. They questioned the alleged minority appeasement politics. Major war cry of BJP was to end state protection to Muslim Personal Law. According to BJP, the existence of separate civil laws for Muslims is against the unity of nation and demands the implementation of Uniform Civil Code.
Along with recurring communal tensions, the waning political importance as a key vote bank pushed the Community into defense. This had a debilitating impact on the orientation of the Community. While political changes of Muslim community are well-documented, the question of how it perpetuates legal conservatism needs keen attention. Afraid of Hindutva attacks on Muslimness, a general trend of dogmatic loyalty towards Muslim Personal Law could be seen.
After 2014, when Modi captured Delhi for the first time in Indian electoral politics without Muslim support, a sense of obscurantism has overwhelmed the Community. The Hindutva rhetoric denigrating the honorable partnership of Muslims with the Republic has raised existential threats among the faithful. Citizenship controversies further alienated the Muslims. Muslims generally are suspicious of Hindutva hidden agendas of undermining constitutional support in their future nation with majoritarian zeal.
Even Muslims are not averse to the idea of reforming the religious laws as happened in many other Islamic countries. But the fear of Hindutva has practically stalled Community-led internal reforms. While BJP heralds Triple Talaq Bill as a milestone in ensuring justice for Muslim women, the Community was scornful of the act while the practice is increasingly condemned by the faithful. Making a civil act a criminal offense which invokes imprisonment, the Community has serious reservation about the ulterior motives of the BJP in forcing changes in Muslim laws. Gazala Wahab has discussed the dilemma among Muslims in supporting reforms pushed by BJP.
Religious identities are calling shots these days instead of caste loyalties. Muslim community should be encouraged to take internal reforms without State compulsion. Civil society, religious role and educated sections have to play bigger roles in reforming the Colonial era Muslim Personal Laws. But, imposition of State-led top-down approach will hurt the pace of internal reforms of Muslim community. Reforms should be the outcome of Community-led process. The State shall merely aid the reform and every effort to shove down changes ought to have adverse results.
Mujeeb Jaihoon is a UAE-based Indian author whose books include ‘The Cool Breeze From Hind’ and ‘Slogans of the Sage’. He could be reached at firstname.lastname@example.org.