The landmark Supreme Court judgment in the Shah Bano case in 1985, changed the course of Arif Mohammad Khan’s political career. Khan, a minister of state in the Rajiv Gandhi government, had passionately defended the judgment in the Parliament. However, when Rajiv Gandhi changed his position on the subject — under pressure from his ministers — and gave in to the Muslim Personal Law Board’s (MPLB) campaign against the judgment. The MPLB managed to get the Muslim Women (Protection of Rights on Divorce) Act was passed.
The young minister, then in his 30s, resigned in protest.
Thirty one years after the controversy, Khan feels that not much has been done to ensure that people do not see a conflict between freedom of religion and enactment of laws that ensure gender justice and equality. Instead, Khan feels that after the Shah Bano case, a section of Indian women have been deprived of their just benefits on grounds of religion, and communal forces have stalled the process of moving towards a common civil law. Excerpts from an interview with Khan.
Thirty-one years after the Shah Bano case and the controversy over personal laws versus secular law, where do we stand in terms of implementing a Uniform Civil Code?
We are nowhere close to implementing a Uniform Civil Code; in fact, in the course of time, we have only moved in the opposite direction. According to the Directive Principles of State Policy, Article 44, the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India .The founding fathers were acutely aware that we need to do lot of groundwork, like providing education and imparting a sturdy sense of security. Because it is only a well informed and confident populace that can save itself from becoming victim of the slogans like “religion in danger” and can move forward to realise the constitutional dreams into reality.
In the case of Shah Bano, we laid the foundation for separate criminal laws. We should not forget that the Shah Bano case was decided under a provision of criminal law and when we agreed to the demand of Muslim Personal Law Board (MPLB), we effectively deprived a section of Indian women on the grounds of religion from the benefits of section 125 of CrPC.
In this matter education is of vital importance as it is essential to ensure that people do not see a conflict between the freedom of religion and enactment of laws that ensure gender justice and equality. The equality of marital rights and obligations are in harmony with the higher ethical teachings of all religions. But unfortunately the governments somehow have not been able to address these issues.
In the Shah Bano case, how did the conflict arise between the Criminal Procedure Code and the Muslim personal laws?
There was absolutely no conflict between the Shah Bano case and the Muslim Personal Law. Personal Laws are essentially of civil nature, whereas the Shah Bano case was decided under section 125 of Criminal Procedure Code which deals with the prevention of social vagrancy and destitution. The law of social justice steps in where the normal laws are found inadequate.
Section 125 does not deal with marital rights or right of maintenance. It deals with cases where someone has deserted a close dependent like father, mother, son, daughter or wife and the deserted person has no means to sustain herself. The law provides that such deserted person can approach the court and court may order a small amount as maintenance allowance. The words are important, it is not maintenance, which is decided in accordance with one’s financial standing. Instead, it is maintenance allowance which is a bare minimum amount that is essential to keep her body and soul together.
From the religious viewpoint, Islam or for that matter any other religion, feeding a hungry person is something of utmost religious merit. But the Personal Law Board was saying that any such provision would violate the letter and spirit of Muslim Law. They have every right to their viewpoint, but to invoke state power to impose their opinion on others was a serious breach of both the liberal and secular spirit of the Indian Constitution.
Secondly, it must not be lost sight of that the Constitution guarantees freedom of religion to each person and not to the communities and it does not accept any self-appointed group as the sole spokesman of any religion. In fact, the moment you give such recognition to one group, you deny freedom of religion to all others who do not agree with the understanding and interpretation by this group. I think this was the basic mistake which we committed in 1986, when we ignored the opinion of many leading Muslim scholars and accepted the views of the MPLB as the basis for the legislation to overturn the Supreme Court judgment.
You defended the SC judgement in the Parliament, one that the government turned its back on later.
When I spoke, I spoke for a principle, for a constitutional ideal, a moral ideal. It was not a personal issue; it didn’t affect me personally. But I felt strongly about it. Shah Bano was a poor old woman, who was first deserted by her lawyer husband after three decades of marriage and when she approached the court under section 125 of CrPC, he resorted to triple divorce. Shah Bano was no crusader for women’s rights, but she needed that money to sustain herself.
The speech in Parliament was well received, and Sri Rajiv Gandhi, who was a modern, forward-looking person who always encouraged me a great deal, wrote me a sweet letter saying that it was a brilliant performance and was appreciated by many. But the MPLB people did not agree and they constantly asserted that the Supreme Court decision amounted to interference in religion and was a threat to the distinct religious identity of the Muslim community.
What made Rajiv Gandhi change his mind?
I know the kind of person he [Gandhi] was, he would have never done this. But the MPLB launched a vicious movement and used the language of violence and threat. Then there were senior Congress leaders like Sri Narasimha Rao and ND Tiwari who rightly thought that the Congress party could not take the responsibility for social reform among the Muslims, particularly when senior women leaders like Mrs Najma Heptulla and Mrs Abida Ahmad had thrown their weight behind the MPLB.
To be fair, Rajivji was left with little choice in the matter. But we must give credit the higher courts for having interpreted the law in accordance with the wordings of the law and not in accordance with the speeches made in Parliament. This interpretation surely defeated the purpose and objective of the MPLB.
And the Muslim Women (Protection of Rights on Divorce) Act, 1986, was passed.
Yes. This law was enthusiastically welcomed by the Muslim Personal Law Board. In fact, in his autobiography, the then Chairman of the Board claimed that every provision of the law was discussed in detail by him, and his team with the Prime Minister and the Law Minister. But later when the higher courts started giving their decisions that went against the standpoint of the Board, they panicked and the Board Chairman declared that the whole agitation finally proved to be a case of digging a mountain and finding a mouse!
Here it is important to note that according to MPLB, the liability of a Muslim husband expires at the end of iddat, that is three months after divorce has been pronounced. But Mr. Ashok Sen, the Law Minister, a great legal mind, had written in the draft “a reasonable and fair provision to be made and paid within the period of iddat”. The important word was “within” and not “for” the period of iddat. The Courts accordingly held that the law does not prescribe payment for the period of iddat, rather the law requires that the payment should be made within the period of iddat and the amount should be adequate enough to meet all her future needs. So the liability of the ex-husband was extended beyond the iddat period through the instrumentality of one-time payment.
Why did you resign?
I had to. After a 59-minute speech defending the SC decision, how could I have continued when it was being asserted in Parliament that the purpose of the legislation was to overturn the Supreme Court judgment? There was no moral ground for me to stay. Sri Rajiv Gandhi as usual was very kind and tried to make me change my decision. But I knew I had to. He was doing his duty, I was doing mine. I resigned, but I could see the pain in his eyes.
The movement by the MPLB, the tone and tenor of the language that was used by Board leaders and the subsequent legislation did a lot of harm and caused tremendous backlash. It revived the memories of separatist politics that resulted in the vivisection of India. In 1946, the demand was to partition the country based on separatist two nation theory. In 1986, the demand was to enact laws based on separate religious identity.
This backlash forced the government to look for something to offset the blowback and the Ayodhya became a handy ploy to divert the attention. In a sense, Shah Bano and Ayodhya became part of a deal where the former triggered the later.
Can you elaborate on the last statement?
The government had to divert the attention of the masses from the Shah Bano case. Anybody can check the records and find that when the application was moved for the opening of the gates of the disputed structure, the District Magistrate and Superintendent of Police personally appeared before the court and submitted that they can handle the law and order situation without the lock. The locking of the gate was not part of the original suit, it was ordered by the court at the instance of the local administration to help them maintain peace. Now the administration through their affidavit and oral submission were asking the court that the lock may be removed. The lock was removed and the rest is history.
Further, the event of unlocking was widely covered by Doordarshan who had sent their team to Ayodhya. Do not forget that during those days there were no private channels and Doordarshan was under government control.
The Personal Law Board did not make any strong protest after the unlocking in Ayodhya. On the contrary, if you read the autobiography of the Board Chairman, you will see that he has used very strong words to denounce the leaders of the Babri Masjid Action Committee. It is on the basis of these grounds that I believe that it was a deal between the government and Personal Law Board.
What are you views about recent movements such as the Bhartiya Muslim Mahila Andolan, their demands to ban triple talaq and polygamy and codify the Muslim personal law?
India is the only country in the world, where the Muslim man enjoys this special right of divorcing his wife instantly through three pronouncements of divorce. This right is not available to a Muslim man anywhere even in Muslim world. They have to go through some process of arbitration as prescribed in Quran. The divorce when executed strictly in accordance with the elaborate procedure laid down in Quran is described as “the most odious among permissible things”. How much more odious would it become when all procedures are jettisoned and three instant pronouncements are made to throw a woman out of her matrimonial home.
I feel that Muslim Mahila Andolan is absolutely justified to demand a ban on triple Talaq. Even Personal Board who uphold its legality admit that it is a sin and bad in religion. If it is a sin and bad in religion then why it should not be banned as it has been done in many other countries.
On the question of codification of Muslim laws, I feel it is a very legitimate demand. Today, in the absence of codification, the courts are forced to rely either on antiquated precedents which do not relate to the world in which we are living, or exercise their own discretion which is described by the clergy as interference in religion. Once the laws are codified then all the doubts and confusions would disappear and there will be very little scope for what is termed as interference.
In fact the Personal Law Board can use this as an opportunity to show that the Muslim law has the resilience and dynamism to meet the requirements of the twenty first century and can present their own draft that is sensitive to gender justice and present day requirements.
What do you think about the suggestion that the Hindu Code Bill might be the basis for the UCC, and its implications for gender justice?
It must be remembered that many provisions of the Hindu Code, such as the provision of divorce, prescription of monogamy and equal property rights for son and daughter were not part of the traditional Hindu law. Where have they come from? Obviously, the Hindu code has benefitted from other sources like the Judaic law or Muslim law. In fact we can say that Hindu Code is largely a modern legislation but it was labelled Hindu to assure the minorities that it would not apply to them against their wishes. The religion is a sensitive subject and government was keen to ensure that no one in country feels unduly concerned about the protection of their religious freedom.
Interestingly, we have on record an interview of Pandit Jawaharlal Nehru by Mrs. Taya Zinkin a British journalist. Mrs Zinkin asked him about the greatest achievement of his life and his reply was that “I was able to secure for my Hindu sisters, rights which were denied to them for centuries”. When asked about his greatest disappointment, Panditji said: “I could not do the same for my Muslim sisters.
I feel that laws alone cannot ensure gender justice or social reforms in any society. The real instrument is education particularly of women. Problems like polygamy and triple divorce would become negligible if we are able to educate our girls. Education will make them more aware and empowered and they would demand that if more than 1400 years ago, the marriage contract of the daughters of the Prophet stipulated that the husband cannot contract another marriage during the lifetime of the wife, why the same condition cannot be incorporated in their marriage contracts.
As Indians we do not fear diversity of faith, thought, custom and ritual, rather we embrace it, we cherish it and we celebrate it. But this diversity should not used as an instrument to deny gender justice to a section of Indian women. Our founding fathers viewed UCC as a measure of empowerment of Indian women and not a ploy to deny or curtail freedom of religion.