This is an archive article published on October 13, 2016

Opinion Tread carefully

Personal law reform is desirable. But a consensual approach will be needed to take it forward.

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October 14, 2016 02:38 PM IST First published on: Oct 13, 2016 at 12:02 AM IST

The Centre filed an affidavit in the Supreme Court last week supporting Shayara Bano’s plea against the practices of talaq-e-bidat (instantaneous triple talaq), nikah halala (prohibition on remarriage with the divorced husband without consumating marriage with another man) and polygamy. It referred to constitutional principles like gender equality and secularism, and cited international covenants, religious practices and marital law prevalent in various Islamic countries to emphasise that the practices need to be re-looked at by the court. Shayara Bano’s petition challenges these practices as being violative of the fundamental rights guaranteed by the Constitution, particularly Articles 14, 15, 21 and 25, which are concerned with the right to equality, protection against discrimination on grounds of sex or religion, protection of life and personal liberty and freedom of religion respectively. A slew of progressive Muslims groups and secular bodies have also come out in support of Shayara Bano in the court.

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There is a strong case for reform of Muslim personal laws, but it needs to be pursued carefully and with the broad-based support of the community. In the Shayara Bano case, the Centre has held the view that the said practices are not an integral part of Islam. This could be taken to mean that they are subject to executive intervention. Yet, the way in which the debate has often been framed in the dominant narrative is disquieting, and stokes insecurity and fear in large sections of the minority community. Overlooking the vivid argument and disagreement even within Muslim groups on the subject of triple talaq, for instance, a neat opposition is painted between a conservative monolithic religion on the one hand and modern ideas of social and gender equality on the other. The conservatism espoused by sections of the clergy and the community has been held up as evidence of Muslim backwardness. The fact is, the call for reforms has periodically been raised from within the community, be it in the Shah Bano case in the 1980s or the Shayara Bano case now.

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Entrenched political interests tend to assume custodianship of community interests, feeding on real and imagined fears, and invite maximalist positions. Moreover, the pursuit of reform of Muslim personal laws has far too often been guided by the exigencies of electoral politics. In such a context, the onus of proving its good intentions is on the government. It needs to tread very carefully, while addressing the disquiet among sections of the Muslim community on a fraught question.