Opinion Same-sex marriage: In attacking notions of love, the Jamiat-e-ulema-e-Hind propagates a narrative that is hostile to change

The Jamiat-e-ulema-e-Hind has a distinguished history of resisting imperialism. If only it would stop to consider whose company such small-mindedness puts them in now: The apartheid regime in South Africa that appealed to “historically accepted societal norms” when upholding the prohibition on interracial relationships and marriages; the slave owners who drew on morally accepted social hierarchies to dismiss the abolitionists’ challenge; or those opposed to the temple entry movement in India who made similar arguments about religious and cultural mores. As an organisation with a history of resistance to imperialism, the Jamiat would know that societal norms are often hegemonic and they do, in fact, keep changing organically, through the efforts of those on the margins, who wish to feel more included.

The Jamiat further complains that the “petitioners are seeking to dilute the concept of marriage, a stable institution, by introducing a free-floating system by introducing the concept of ‘same-sex marriage’”. This is a familiar complaint too, mostly made by those challenging various provisions of the sharia with respect to more informal marriages (muta or temporary marriage, etc) and unilateral divorces, in favour of a uniform civil code. Usually, those complainants are “on the other side”, and the Jamiat finds itself defending personal choices. The Jamiat vociferously, albeit unsuccessfully, defended “triple talaq”, arguing that marriage in Muslim Personal Law is akin to a contract, and not a sacrament, so it may be revoked at will. Others too defend these forms of marriage and divorce on various grounds that include the fact that evolving jurisprudence recognises (and supports) different forms of living arrangements and that relationships should not be standardised or overly regulated by the state. In some cases, the courts also rely on such jurisprudence ( in recognising live-in, or queer relationships, and other forms of “modern families”), while in certain others they choose to ignore it ( in “love jihad” cases, for example).

In this case, however, the Jamiat seems to be treating religious canon much like the current government treats the idea of national security. An idea that seeks to govern everything, and yet there is no engagement with historical contexts, or with radical and divergent ideas within a religious tradition. Canon (and national security) is safe only in the hands of the patriarchs. Unsurprisingly then, the application records:

“That every organised religion is bound to have certain principles attached. When a person enters into a religion or declares herself to be a follower of a religion, that person is expected to have a belief in the foundational norms of such a religion. A person who fails to follow such norms is considered a sinner in the religious paradigm. Any person who questions the well-established norms of a religion or demands the creation of a non-existing space within the religious norms and its teachings is, in fact, seeking to amend the religious norms. There cannot be an imposition of a radical non-religious worldview in established, inseparable and core principles of religions.”

This suggests that religious norms are hegemonic and universal, with no scope for alternative meanings. Such positions are completely oblivious to the very rich history of difference and dissent within Islam, or to the traditions of liberation theology. It proclaims that norms are what they are, and critical or alternative engagements are an imposition on the majority. This could have been the security police speaking to an “anti-national” protestor. The state (like the Jamiat) thinks little of the imposition of its own unreflective views on minorities. This is quite ironic with respect to the Jamiat because normally it does concern itself with minority rights, most specifically in cases where it is itself, in fact, the minority. It would take more self-awareness than it has been able to display at present to also accord the same rights to one’s own minorities.

There is an imagination of Semitic religions as being rule-bound and unbending. I have always found it odd that Muslims (when religious) are imagined as being standardised, mechanical beings, leading their lives as per daily fatwas, without the eclecticism of Hinduism, for instance, where everyone does as they please. This negates the reality of Muslim lives that negotiate, in much the same way as everyone else, with religion and with state, and with all other modes of power. They make these negotiations through critical engagement with theology and cultural Islam, but also sometimes by having faith, in knowing that bona fide actions do not make them outcasts, even when they fall outside the canonical law. Therefore, it is particularly disappointing to see the intervention application citing the Quran, and the Prophet (peace be upon him), in a decontextualised way, to attack notions of love, and in aid of power.

During the hijab case, some of us made arguments that relied on “freedom to choose”, and on “personal autonomy”. One particularly crude response to these arguments was: If you wish to dress in a particular way, do so at home, or at your religious schools, but not at public schools. We argued then that in order to properly exercise choice, an individual’s identity and personal autonomy has to be constructed holistically, and not demarcated into religious and secular spaces. It was not an instrumental argument: Some of us made it in good faith, actually believing in those ethics. I do hope that there would be enough young people who would object and intercede against the Jamiat’s own version of that very crude argument: If you want to be different, do it in your own non-religious space.

The writer is a lawyer practising in the Supreme Court