by Hilal Ahmed
The BMMA’s strident opposition to triple talaq and the UCC also find resonance in this ruling. The court has asked the Parliament to make a Muslim divorce law, and the issue of the UCC is clearly separated from it. This legal clarity is actually employed by the BMMA to make a case for a progressive Muslim family law. In a public letter, the BMMA makes it clear that the judgement is not an end in itself. It is argued:
The Supreme Court setting aside triple talaq in its judgement [. . .] was a historical step forward in Muslim women’s struggle for gender justice in marriage and family matters [. . .] The Parliament must live up to its duty of passing a Muslim Family Law just as they passed the Hindu Marriage Act, 1955 and Hindu Succession Act, 1956. Justice for Indian Muslim women can be enabled either through amendments to the Shariat Application Act, 1937 as well as the Dissolution of Muslim Marriages Act, 1939 or a completely new enactment of Muslim personal law. BMMA has [. . .] prepared a draft Muslim Family Law based on Quranic tenets concerning age of marriage, mehr, talaq, polygamy, maintenance, custody of children, etc. These are in consonance with the Constitution of India. This government must now listen to the voices of progressive Muslim women [. . .] the government and [the] Opposition [must] stop politicizing the issue and ensure a balanced and comprehensive law.14
The most enthusiastic response to the judgement came from the government. The government welcomed the judgement and assured Muslim women that a new law would be enacted to ban triple talaq. Following this commitment, the Muslim Women (Protection of Rights on Marriage) Bill, 2017, was introduced in the Lok Sabha in December 2017. The statement of object of the bill says:
In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.15
Box 2: What is the Shah Bano case?
Shah Bano, a sixty-two-year-old Muslim woman and mother of five, was divorced by her husband, a lawyer, Mohammad Ahmad Khan, in 1978. She filed a case against her ex-husband for maintenance (AIR 1985 SC 945). In 1985, the Supreme Court ruled in her favour and underlined the need for a common civil law in the country. The Supreme Court held that if the divorced wife is able to maintain herself, the husband’s liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Code of Criminal Procedure. This judgement created a stir in the country. The AIMPLB and other Muslim organizations launched a nationwide agitation against the Supreme Court ruling and the protection of Muslim personal law and shariat. Finally, the then Rajiv Gandhi government introduced a bill in the Parliament against this judgement. The new law, the Muslim Women (Protection of Rights on Divorce) Act, 1986, overturned the Supreme Court verdict.
Let’s punish Muslim men!
It is important to note that the Supreme Court judgement does not clarify the nature of offence if triple talaq is practised by a man. However, the 2017 bill proposed to make the declaration of talaq a cognizable and non-bailable crime. It is important to note that in the case of a cognizable offence, a police officer may arrest an accused person without any warrant.
Hence, if a husband is alleged to have pronounced triple talaq, he may be arrested by the police. Furthermore, the husband can be imprisoned for up to three years along with a fine. The Muslim woman, against whom talaq is practised, is given a right to claim subsistence allowance from her husband for herself and her dependant children. This allowance will be decided by a first-class magistrate. The woman is also entitled to seek custody of her minor children.
The Congress supported the bill with a few amendments. However, it was severely opposed by the Opposition parties, such as the RJD, the All India Itehadul Muslimeen, the Biju Janata Dal, the AIADMK and the Indian Union Muslim League. The Lok Sabha passed the bill on 28 December 2017.
The debate on the bill introduces us to a few inherent technical problems. Two important issues need to be underlined here. First, it is clear from the Supreme Court judgement that if a person pronounces the word ‘talaq’ three times with an intention to divorce his wife, it would not affect the status of the marriage. It means they would remain husband and wife in legal terms.
But the bill intends to make the uttering of the word ‘talaq’ a punishable offence, for which a Muslim man may receive a jail term. The question arises: If the marriage, as a civic contract, cannot be broken by the husband even though he says talaq three times, how could this act be treated as a non-bailable crime strictly in legal terms? This is what Sushmita Dev said in the debate on the bill in the Lok Sabha:
This Bill is effectively bringing a matter like divorce, which is generally in the domain of civil jurisdiction, into the domain of criminal jurisdiction. That means, now, it is going to be a criminal offence and the logic behind that, as per the Statement of Objects and Reasons, is that it will act as a deterrent [. . .] if you make it a cognizable offence and a non-bailable offence and you are giving women the right of subsistence allowance, how she will ensure she gets this subsistence allowance and who is going to give it to her [. . .] When you criminalize something like this, will it alienate the Muslim community more than it already has? [. . .] Will you [. . .] ensure that this bill will not open up abuse of this law against Muslim men in the country in the name of protecting Muslim women?16
Secondly, the bill is based on the premise that Muslims constitute a single religious community and the practice of triple talaq is the only social problem they face. Unlike the Supreme Court judgement, the bill does not clarify that the custom of triple talaq is prevalent only among the Hanafi Sunni Muslims.
The government did not wait for the approval of the Rajya Sabha and promulgated the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, on 19 September 2018. The ordinance, as expected, relied entirely on the draft bill presented by the government in the Lok Sabha. Defining triple talaq as a cognizable offence, the ordinance upholds the provision that the accused may get up to three years imprisonment, with a fine.
Nevertheless, the ordinance has three specific features. First, in order to qualify the nature of triple talaq as a punishable act, it makes a few new provisions. Triple talaq will only be recognized as a cognizable offence if information about it is given by the woman against whom talaq is practised. Moreover, if the pronouncement of talaq is reported by any person related to the women by blood or marriage, that would also be considered an offence.17 Second, the accused husband may be granted bail. However, it depends on the discretion of the magistrate. If the woman agrees and the magistrate is satisfied, a person accused of triple talaq may be release on parole.18 Third, if the woman is of the opinion that the offence of triple talaq may not happen in the future, she may approach the court to stop legal proceedings and settle the dispute. However, the terms and conditions of this dispute resolution will only be determined by the magistrate.19
It is obvious that the recent legislative initiatives to ban triple talaq—the bill and the ordinance—are full of contradictions. Apart from the legal inconsistencies, these moves clearly reaffirm the assumptions about Muslims, which we have noted in the first section. Let us conclude this chapter by highlighting two aspects of the politics of triple talaq.
First, the manner in which Muslim men are envisaged in these debates is highly problematic. The government seems to endorse the view that the protection of the rights of Muslim women can only be possible if Muslim men are punished—as if Muslim women do not consider themselves Muslims at all and their only objective is to protect their marriages! The issues raised by the BMMA and other Muslim women organizations, such as the ec
onomic empowerment of women and having an egalitarian and gender-just Islamic family law in India, are virtually ignored.
Second, the government has given a new lease of life to the ulema class in the country in a very interesting manner. Unlike the Rajiv Gandhi government, which relied entirely on the AIMPLB for drafting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Modi government is very critical of the Muslim religious elite. However, the negative image of the AIMPLB has been tactically used to publicize the positive attitude of the government towards Muslim women. This undue recognition given to the AIMPLB has strengthened the media perception of Islamic clergy. The ulema have successfully carved out a space for themselves as decisive interpreters of religious texts.
8
The New Muslim Elite
Thinking the unthinkable!
I wanted a role for myself in politics . . . I approached a few political parties, including the Congress. I met some senior party leaders. I was thoroughly disillusioned: Missing was the dynamism and a sense of direction. There was little there except lust of power. And then the unthinkable happened. I had a chance meeting with Modi. He greeted me warmly and invited me to join him if I was interested in his project of nation-building.1
These were the sentiments expressed by Syed Zafar Islam in an article titled ‘A Birthday Card to the PM’. Islam explains the causes that led him to join Modi’s BJP—a party which is often projected as being anti-Muslim. His narrative of struggle, however, is slightly different.
He tells us that after spending considerable time in the Aligarh Muslim University (AMU) and IIM Ahmedabad as a student, he worked in the financial sector. He went on to become a managing director with Deutsche Bank. This successful career in the banking sector did not satisfy him. As a politically conscious Muslim individual, Islam approached many political parties to carve out a meaningful space for himself in politics. According to him, the so-called netas disillusioned him completely.
And, finally, as he puts it, ‘the unthinkable happened’—he met Narendra Modi! Islam found a great dynamism in Modi. He also realized there were a number of remarkable similarities he shared with him—they both came from humble backgrounds, had struggled a lot and both of them had ‘a sense of direction’.
And the rest, as they say, is history. Islam is one of the national spokespersons of the BJP today.
Islam’s self-portrayal as a pro-Modi Muslim representative certainly reflects a few political necessities, which virtually all BJP leaders adhere to these days. However, there is an element of truth in his story. He represents an aspirational member of the Muslim middle class—a product of the post-1990 liberalization era—who is not satisfied with the existing forms of Islamic religiosities as well as the established idioms of Muslim politics. The presence of this aspirational class of Muslims has not yet been recognized in public discourse, but its increasing influence on contemporary Muslim politics cannot be underestimated.
Terms such as ‘Muslim middle class’ or ‘Muslim elites’ somehow go against the present-day sense of political correctness. We are forced to imagine Indian Muslims either as victims or as a global threat to the nation.
The narrative of Muslim victimhood, which emerged as an official explanation after the publication of the Sachar report, is invoked by the so-called secular elite to represent themselves as guardians of Muslim interests.2 On the other hand, Hindutva politics relies on global Islamic terrorism to present India’s Muslims as a potential threat. The class distinction among Muslims is not in the least bit important for them.
These contradictory depictions of Muslims in India do not allow us to pay close attention to the internal configuration of Muslim communities, especially the formation of a new middle class. This chapter tries to address this intellectual apathy by asking two specific questions. First, is it possible to think of a class among the Muslims of India purely in economic terms? Second, how does this class influence Muslim identity in general and Muslim politics in particular?
The Muslim class structure
Pioneering research conducted by Sanjeer Alam introduces us to the complex economic profile of Muslims in contemporary India. His findings are based on the National Sample Survey (NSS) that collects information, among other things, on the educational status of individuals and their employment situation.3 On the basis of this analysis, three features of the Muslim class structure may be identified.
First, it is found that that globalization has not yet fully restructured class configuration among Muslims in India. The majority of Muslims either work as casual workers or they are engaged in self-employment. Only a few Muslims (around 19 per cent) are engaged in what are called regular salaried jobs. Although this economic unevenness is not entirely specific to Muslims (among the SCs/STs, the proportion of casual workers is very high in comparison to those holding regular salaried jobs), liberalization has affected them most. This is what the Sachar Committee also identifies. The report notes:
Displacement from traditional occupations has contributed to Muslims being deprived of their means of livelihood and has led to economic backwardness. Despite the economic boom being talked about in India, today one finds that Muslims in India have had to bear the brunt of the so called ‘competitive’ forces unleashed by liberalization. Internal and external liberalization has brought with it considerable costs in terms of unemployment and displacement of workers who have lost their jobs to competitive companies that import products. Muslims, by and large, are engaged in the unorganized sector of the economy which rarely enjoys protection of any kind and therefore the adverse impact of liberalization has been more acute for them. The traditional occupations of Muslims, in industries such as silk and sericulture, hand and power looms, the leather industry, automobile repairing, garment making, have borne the brunt of liberalization [. . .] The artisans that survive have to face problems related to infrastructure (e.g., expensive power), expensive raw materials (due to lack of subsidies), and non-availability of credit and absence of marketing support.4
However, the process of globalization can also be interpreted very differently. It is also possible to infer from the same set of data that the above-mentioned 19 per cent of Muslims, who earn regular salaries, are in an advantageous position in comparison to poor, self-employed Muslims and casual workers. In such a scenario, one needs to unpack the category of ‘salaried class’ to avoid simplistic conclusions. After all, ‘regular salary’ does not necessarily contribute to the economic upward mobility of an individual. There is a possibility that a self-employed person may earn more than a salaried person.
So now let us examine the second feature of the Muslim class structure. The salaried job may be classified into white-collar jobs and other jobs. (This classification is not entirely arbitrary, the NSS also uses it.) Certain positions held—such as managers, executives, technical and other professionals, administrators, teachers, clerks—may be treated as white-collar jobs. These forms of employment signify the relatively higher earnings of an individual as well as his/her social status as part of the educated elite.
NSSO data shows that Muslims face disadvantages in accessing white-collar occupations. Even educated Muslims find it difficult to utilize their degrees in the job market. Yet, around 6 per cent of the total Muslim male workforce (aged twenty-five to sixty years) manages to enter into this elite class. The standard definition of Muslim marginalization does not apply to them simply because of their class background. Interestingly, caste differences among these educated, white-collar job-holding Muslims is rather insignificant—more than half of them come from upper castes, while the rest belong to Muslim OBCs.
Muslim presence in the banking sector is a good example to substantiate this point. In a recent study, it has been found that Muslims constitute around 3 per cent of the directors and senior executives—sixty-two of the 2324 executives—among the BSE 500 companies.5 Obviously, this number may be used to underline the marginalization of Muslims. But this also reflects a kin
d of serious class disparity between common Muslims and the Muslim economic elite.
And this brings us to the third feature of the Muslim class structure. There is a minority of Muslim businessmen, landowners and traders who still have an important role to play in the internal makings of the power hierarchy. Although we do not have adequate data or any systematic study to demonstrate the exact status of this economic class, the extraordinary class divides among Muslims across the country is self-evident.
Table 1: Occupational distribution by socio-religious communities, 2011–12
Source: Sanjeer Alam’s calculation from the raw data file of the National Sample Survey, 68th Round, 2011–12 (Alam, 2016)
Note: Figures pertain to male workers aged 25–50 years
Table 2: Educational attainment and access to white-collar jobs by socio-religious communities (2011–12)
Source: Sanjeer Alam’s calculation from the raw data file of the National Sample Survey, 68th Round, 2011–12 (Alam 2016)
Note: Figures pertain to individuals aged 25–50 years
Who is the Muslim elite?