By Umair Azmi
The liberal silence has, thankfully, been broken. If equality between the genders is impossible within the realm of Muslim law, irrespective of the interpretation that is followed.
This is no cause for outrage or shock. Unless there is an alarming lack of the ability to think, this conclusion should be plainly obvious. For instance, no honest interpretation of the Quran can establish the equivalence of the portions inherited by the male and female child. Muslims would surely say in their defense that the inequality in inheritance does not necessary imply injustice. A more holistic view should also consider the gender-specific rights and responsibilities. However, such arguments are very unlikely to cut ice in a liberal framework. The obvious – and seemingly reasonable – response would be that arguments are unnecessarily being made on a matter that can be analysed objectively. To quote from the article:
“Fact: A liberal country should guarantee equality to women. Fact: A cornerstone of such equality is the provision of equal rights to divorce and inheritance. Fact: There is no tradition in Islamic law allowing anything close to equality in these respects. Conclusion: The only way India can guarantee equal rights to Muslim women is by foregoing religious personal laws in favour of a secular law.”
This line of argumentation is based on the premise that the dictates of liberalism are beyond question and must be accepted as such.
For the sake of argument, let us accept the reasoning at face value – “A liberal country should guarantee equality to women.” Do laws that are considered fair by liberals meet this standard? Since many laws are based on the physical differences between the genders and the historical injustices accorded to Indian women (laws related to rape, dowry, domestic violence, sexual harassment) they remain out of the debate.
Consider the Hindu Succession Act (1956) which is generally considered a progressive enactment. Section 15(2) causes the property inherited by a female from her parents or husband to be inherited by the parents’ or husband’s heirs rather than her own – in effect, making her part trustee, part owner. No such restriction is specified for males. Even the 2005 amendment, which provided inheritance rights to females in agricultural land, left this provision untouched. Yet one does not hear from about this inequality.
Section 125 CrPC has provisions for a male to be directed to pay maintenance to his spouse and children but does not require the same for females. Surely to equate this differentiation with injustice would be a lame argument. Yet if the objective notion of equality were to be applied, this section of the law would be found to violate it.
What does this show? First: liberal laws are not necessarily based on mathematical notions of equality. Second: justice is not necessarily dependent on “equality”, even in an “enlightened, liberal discourse”. There are certain ideological beliefs that go into understanding the notion of justice. Notions of mathematical equality cannot be applied in a vacuum.
Just as CrPC 125 would be considered just within the liberal framework, a Muslim – based on his/her ideology which specifies differentiated rights and responsibilities for the genders – would consider the unequal shares in inheritance as just. It is absolutely legitimate for a liberal to not agree with this ideological foundation and to call for a law free from religious foundations in a democratic setup, but to apply a test for acceptability that even “liberal” and “progressive” legislations do not conform to is intellectually dishonest.
The above arguments in no way constitute a case for the continuance of Muslim (or any other) personal law. That is not the intent of this article. The intent is merely to show the shallowness of a discourse whose arguments are based on the blind acceptance of some “liberal” axioms.
An argument for the abolition of Muslim personal law must, in the interest of fairness, engage with the ideological underpinnings of Muslim law, even if the sole purpose for engagement is its rebuttal. Not doing so betrays at best, a patronising attitude, and at worst, contempt. Such an approach, instead of taking the discourse forward, slams the door shut on further discussion.
The author is an engineer, with a Masters degree in Computer Science, from the Indian Institute of Science, Bangalore