The Quran, along with the Sunnah and Hadith, constitute the primary sources of the Islamic Law (Sharia) which governs the lives of the members of the Muslim community. The tremendous amount of reliance placed on these sources makes it pertinent to ensure that these texts are understood, interpreted and followed in a manner that is not only non-discriminatory but also enriching for all of its followers. While the polysemic nature of Classical Arabic used in Quran itself makes it difficult for Muslims to agree upon a single interpretation of the Quran, the divide of opinion upon what should be the most appropriate or ultimate interpretation is also exacerbated by the social cognition of the person interpreting the Quran. This is to suggest that any discursive discrimination flowing against women via the medium of the sacred texts necessarily happens on two closely connected levels- linguistic and cognitive.
It goes without saying then that undoing this discrimination also needs to happen on both the levels in order to ensure that Muslim women are able to at least have, what Amina Wadud describes as an ‘input in the basic paradigms of what it means to be a Muslim’. This brief case study uses this understanding of the dual aspects of discursive discrimination to look at how far India has been able to successfully address, or even acknowledge, the problem of disenfranchisement of its Muslim women through its governance.
THE DISCOMFORT AROUND STATE INTERVENTION
Currently, India’s Muslim population is governed by Muslim Personal Law, which is based on the Shariat (Islamic Law) which in turn, is based on the Quran, Hadith, Sunnah and juristic opinions, rulings and interventions. The simple fact that the law is largely based upon a text in a language that majority of Indian Muslims do not understand should ring an alarm about how wrongly the entire situation can go. This is not to suggest that the Personal Law is unfit for application in India, but to point out at the huge chasm of understanding that exists between those who can understand the language and meaning of the sacred texts (and therefore be eligible for becoming active participants in the process of law-making) vis-a-vis those who don’t (therefore, those who are deprived of any agency in these processes). Under such circumstances where only a few have access to the law that is going to be used to govern all, the rights of the general population (of Indian Muslims) are left to the understanding of authorities who may or may not care to actually use their knowledge to the best use.
Muslim women’s rights in Islam have always been a tricky subject to discuss in India. Since Muslims are governed by the Muslim Personal Law, any attempt of the state to intervene in the application of Personal Law, even if it is for the sake of giving Muslim women their Islamic rights, is seen as an attack on the right of the Muslim community to self-governance. The 1985 Supreme Court decision in the Shah Bano case remains a glaring example of this outrage. When the Supreme Court held that the provisions of Section 125 CrPC were applicable to Muslim women as well (despite what Muslim Personal Law may state), Muslim opposition was so sharp that it led to the Rajiv Gandhi government passing the Muslim Women (Protection on Divorce Act, 1986, just to nullify the Shah Bano decision and reimpose Muslim Personal Law on divorced Muslim women.
With the Hindu Nationalist party, BJP coming to power in 2014, this fear of state intervention is multiplied in the Muslim community, with the rights of the Indian Muslim women holding a very precarious ground. While on one hand, the Muslim scholarship (and religious authority) seeks to retain oppressive interpretations and laws, on the other hand, the Hindu Nationalist government is bent on ‘liberating’ Muslim women through state interference.
This state interference, in its most recent form, has criminalized Muslim men who announce the triple talaq to spend up to 3 years in prison, while his wife is left Islamically divorced, but legally married. Such interference completely overlooks the processes of discursive discrimination that are at the root of denying Muslim women their rights. The issue of Triple Talaq, for instance, can be understood as an instance of Discursive Discrimination where the Quranic divorce called talaq that has to be announced at three different periods of time with some gaps and considerations was allowed to become a practice where a man could get rid of his wife by pronouncing ‘talaq, talaq, talaq’ at once.
IS THE JUDICIARY HELPING?
The judiciary, when it tries to undo discriminatory laws that affect Muslim women, has to deal with two hurdles that radically limit their understanding of the issue at hand-
- Its lack of knowledge of Islamic scriptures, Arabic, interpretative processes, and how discursive discriminations flows into Islamic Law therefrom.
- Its lack of ‘understanding of the complex and multifaceted lives and customs of the Muslim community.
Moreover, the fact that the Judiciary has its obligations to endorse one interpretation and also has a tendency to take the ‘essential practice’ test to decide on religious matters, goes against the very flexible re-imagining of Islam that has been responsible for reshaping ideas about a woman’s place in Islam. If the problem is indeed discursive discrimination, merely reversing ( or cancelling) the provisions of the law without also exploring the language and discourse structure as well the power dynamics that are perpetuating Islamic laws antithetical to women’s rights, is not enough.
Further, there is also the fear of the judges’ anti-Islamic biases being applied to the judgements. ‘The Chief Justice’s comments in the Shah Bano judgement are a case in point-
‘It is alleged that the “fatal point in Islam is the degradation of woman.” To the Prophet is ascribed the statement, hopefully wrongly that “Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore, treat your wives kindly.” . . . It is too well known that “A Mahomedan may have as many as four wives at the same time but not more.”’[i]
In this case, the Judges unwisely engaged in the exegesis of the Quran for a secular right that could have been decided exclusively on “other grounds, such as public policy or the state’s interest in ensuring women were not rendered destitute’’.[ii] Such comments coming from the judiciary not only hurt the sentiments of the Muslim community but also make them wary of the Supreme Court’s understanding and authority. In the long run, it reflects upon the Supreme Court’s inefficacy in handling religious matters and makes judicial intervention ineligible to, and unhelpful in addressing the main cause of contention (i.e., discursive discrimination against women).
WHAT ABOUT CONSTITUTIONAL SAFEGUARDS?
Under the Indian Constitution, Article 30 guarantees religious minorities (which includes Muslims) the right to establish and also administer their own educational institutions. Under this article, the minority educational institutes are also entitled to receive grants (in a non-discriminatory manner) from the government. However, despite these safeguards, the literacy rate among Muslims remains very low. While the entire picture is far from appreciable, Muslim women’s participation in education remain even lower than their male counterparts-
The literacy rate for Muslim women is 52%, in sharp contrast with the overall rate for Muslims which is 68.5%, according to the 2011 Census. Additionally, around 22% of Muslim women have never been enrolled in a formal education course.
“In a study carried out by the Delhi-based Hamdard Education Society, it has been suggested that of the estimated 35,000 Indian madrasas only between 8 to 10% are madrasas for girls. However, many Muslims remain unaware of or even surprised at the suggestion that girls’ madrasas exist, even if they are located in their own neighborhoods, which suggests that even the madrasa buildings are often, as it were, in purdah, hidden from public view.”[iii]
This sharp contrast in the attention given to Muslim women’s education vis-a-vis their male counterparts point not just towards the attitudes and circumstances inside the community, but also towards India’s failure in ensuring that the rights guaranteed under Article 30 reach Muslim women as well.
The fact that the madrasas are the places where Muslims can access resources to understand Islam and get educated makes it incumbent that Muslim women should be able access and benefit out of these state-funded educational spaces if they are to begin challenging the issues, they have so far been quietly accepting due to their lack of knowledge/ understanding.
It appears that the specific problem of discursive discrimination against Muslim women in India is invisible to the government of India. While the vulnerabilities of the Indian Muslim woman are somewhat understood, these problems have not been linked to discursive discrimination so far. Resultantly, the solutions offered by the state end up being quick fixes that don’t challenge the problem at its roots. In certain areas, such as Muslim women’s education, the government is turning a blind eye to the inconsistencies. While the state can do very little to challenge the aspects of discrimination that are rooted in the structure of language, it can very well commit to encouraging Muslim women’s education scholarship, include Muslims into policy-making and decision-making as a part of the judiciary and legislature’s functioning. It is hoped that these measures would be the first steps of a long journey that seeks to undo the discrimination against Muslim women through the medium of religious reinterpretation and state support.
[i] Khan v. Begum, (1985) 2 S.C.C. 556 (India)
Reprinted in Pg 79, Shah Bano and the Muslim Women Act A Decade On: The Right of the Divorced Muslim Woman to Mataa(Lucy Carroll ed., 1998).
[ii] Cyra Akila Choudhury, (Mis)Appropriated Liberty: Identity, Gender Justice and Muslim Personal Law Reform in India, (2008).
[iii] Winkelmann, Mareike. “‘Inside and Outside’ in a Girls’ Madrasa in New Delhi.” The Madrasa in Asia: Political Activism and Transnational Linkages, edited by Farish A. Noor et al., Amsterdam University Press, Amsterdam, 2008, pp. 105–122. JSTOR, www.jstor.org/stable/j.ctt46n10w.7
This article is authored by Afrah Asif, a second-year law student at NALSAR University of Law, Hyderabad.