Shah Bano 2.0

INDIA IS currently experiencing its Shah Bano 2.0 moment, with the hijab controversy rearing its ugly head. That landmark case marked the beginning of the battle of Muslim women against Muslim Personal Law (MPL), when, in April 1978, 62-year-old Shah Bano filed a case in the civil court against her divorced husband and advocate from Indore, Mohammad Ahmed Khan—whom she had married in 1932 and had five children with—demanding maintenance from him under the Code of Criminal Procedure (CrPC). The case was filed after Khan had asked her to move out, to a residence separate from that of his second wife and himself. Khan argued in court that he was only required to support Shah Bano and her children during the iddat, that is, the waiting period a woman must observe after the death of her husband or her divorce before she could marry another man. The length of the iddat is usually three months after either of the two instances. In case the woman is pregnant, the period extends to childbirth. Khan’s argument was supported by the All India Muslim Personal Law Board (AIMPLB) which contended that courts could not take the liberty of interfering in matters laid out under MPL, adding that it would violate the Muslim Personal Law (Shariat) Application Act, 1937. The board said that according to the Act, the courts were to make decisions on matters of divorce, maintenance and other family issues based on Shariat. The Supreme Court ruling in 1985 held that CrPC, 1973, which applies to all Indian citizens regardless of religion, could apply in this case. Upholding the decision of the high court, then Chief Justice of India (CJI) YV Chandrachud ordered maintenance to Shah Bano under CrPC, even hiking the sum from a paltry ₹ 185 per month. The case was considered a milestone, with the ruling emphasising the need for a Uniform Civil Code (UCC) and gender equality irrespective of the individual religion professed by an appellant. “The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion,” the CJI had held. What followed, though, was a shameful showcasing of political pusillanimity, minority appeasement and gross gender injustice, with the then Congress Government of Rajiv Gandhi overturning the ruling by passing a new law in Parliament called the Muslim Women (Protection of Rights on Divorce) Act, 1986 which said that maintenance need be provided only during the iddat and if the woman could not support herself or her children, the Waqf Board had to provide for her and her children. Shah Bano’s lawyer, Danial Latifi, challenged the validity of the Act but to no avail. Subsequently, Shah Bano withdrew her case. A momentous battle for the equality and dignity of Muslim women, especially in the case of marriage, was lost to ensure political gains.

Rajiv Gandhi had succumbed to pressure on the floor of Parliament. The country witnessed spectacles like Arif Mohammad Khan being fielded one day by Congress to support the legislation and then, later, ZR Ansari to oppose it. That incident saw the ‘progressives’, Congress and the Left on the same side. It also saw Congress changing gears on a UCC. The Constituent Assembly (CA) had debated it, and because of resistance from the Muslim representatives in the CA, had decided not to have a UCC while noting at the same time that it was a desirable objective for the country. And the subject was then placed under the Directive Principles of the Constitution.

Congress’ changed stance saw the Bharatiya Janata Party’s (BJP) old complaint—that secularism as practised in India was not genuine but an appeasement of hardliners belonging to a particular community and indulgence of retrograde practices in the name of communal amity—gain resonance. The Central political narrative was never going to be the same again. Pseudo-secularism, minority appeasement, issues that were being raised for a while but failed to find traction among the public, found new momentum. Before BJP adopted the Ram Janmabhoomi resolution at Palampur, it was UCC that helped BJP expand its existing constituencies, find new ones, and acquire acceptability for its political viewpoint.

In the hijab case, Congress has voluntarily endorsed the stand taken by conservatives. There was stealth in handling its changing position on the Shah Bano case. Not now. Ironically, this is happening at a time when the Muslim community itself is divided on the issue

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Once Congress changed gears on UCC in 1985-86, others quickly followed. UCC was part of the progressive discourse only till then. The ‘progressives’ and ‘liberals’ began to find ever new excuses to ensure protracted delay and digression on the subject. “The time is not ripe”; “support for the UCC should come from within the community”; and “there has to be consultation with the community”—such excuses became common. Recall, however, that when the Hindu laws were codified by the CA, there was no such consultation within the community or any question of waiting for the “right time”. The decision was taken by BR Ambedkar and Jawaharlal Nehru in the CA. But after the Shah Bano judgment, a new angle was also added by the ‘progressives’—in keeping with the global discourse on multiculturalism, they argued that the UCC was a matter of choice, an issue of privacy, and so on. Such jargon was deployed only to defend their changed position.

The same obfuscation and speciousness that governed the responses to the Shah Bano issue, and the call for the implementation of the UCC as a corollary to it, have now overtaken the hijab issue, reverberating in Karnataka today, as far as Congress, the Left/liberals and so-called ‘progressives’ are concerned.

ON FEBRUARY 11TH, Kavita Tewary—with a following of almost 18,000 on Twitter—posted a grainy black-and-white photograph of Muhammad Ali Jinnah, the founding father of Pakistan, posing with the women’s wing of the All India Muslim Students’ Federation. “None of them are seen wearing the hijab or burqua, which proves it is not mandatory in Islam as claimed very recently,” she observed.

From the 1950s to the 1970s, many of today’s Islamic nations of South Asia and West Asia, North Africa and elsewhere, under the influence of colonial Britain and France and later, the US, witnessed the same Westernising zeal across sectors: from infrastructure to education to popular culture to medicine to governance models, everything underwent transformation from the traditional to the modern. Women from conservative societies in these regions benefited the most, abandoning their hijab, entering universities in disciplines ranging from international studies to engineering and medicine. They kicked their heels high at parties, donned fashionable skirts, became air hostesses, participated in beauty pageants, accessorised with trending bags at outings and wore swimsuits to beaches. From Jordan to Morocco, from Egypt, Lebanon, Palestine, Iran and Iraq to Afghanistan, women in predominantly Islamic societies practised their religion without pegging it to the burqa, hijab or the chador. In the 1970s, the more daring in universities from Kabul to Beirut, from Amman to Cairo and Baghdad, even took to miniskirts, exposing calves and ankles and participating in sport like never before.

In 1953, Egyptian leader Gamal Abdel Nasser famously scoffed at the Muslim Brotherhood’s suggestion that the hijab be made mandatory for all women, with “Sir, I know you have a daughter in college and she doesn’t wear a headscarf. You cannot convince your daughter to wear it and you expect me to make 10 million women wear it?” But all that changed in the late 1970s after the revolution that overthrew the regime of Reza Shah Pahlavi in Persia and the events that followed. The developments in the Shia-led Islamic Republic of Iran, with the entrenched religious elite and clergy dictating religious and cultural mores, had a domino effect in Islamic societies. Across regions, the hijab, burqa and the chador returned centrestage, a flaunted showpiece of Islamic religion and culture.

GOING BY THE current support extended by Congress and the Left/liberal intellectuals and ‘progressives’ to those demanding hijab-wearing rights in schools and colleges, one would be forgiven for assuming that it was a controversy deliberately foisted on the Muslim community by the BJP government in Karnataka. This, notwithstanding the fact that like most other states in the country, many colleges have well-defined dress codes, as did the Government PU College for Girls in Udupi, the centre of the hijab storm. Students and parents (on their behalf) signed on to this in full agreement at the time of admission of their wards to the educational institution.

But there was an interesting backstory to these developments that needs to be told, especially to highlight how and why the Campus Front of India (CFI)—the student wing of the radical Islamic outfit Popular Front of India (PFI)—decided to intervene in the sensitive issue, to initiate, escalate and amplify the protests surrounding it, with just two months left for the annual examinations. In October last year, something seemingly unrelated had happened. There was an incident of rape on campus and the Akhil Bharatiya Vidyarthi Parishad (ABVP) took out a protest march in Udupi’s Manipal. Several girl students joined the march, including two students from the Government PU College for Girls, wearing the hijab. All those involved in the protest were marked absent for the day. The two girls were among those asked to leave their classrooms on December 27th, beginning an agitation that spread like wildfire to Kundapura taluk and other parts of the state.

The protesting i students were noticed by CFI, which then entered the picture. According to reports, CFI subsequently ‘convinced’ the girls to join. This set the stage for the two girls to raise the CFI-engineered game to politicise the hijab, based on the argument that it was “an essential part” of professing the Islamic faith and, therefore, a violation of their constitutional right.

From the 1950s to the 1970s, many of today’s Islamic nations witnessed a westernising zeal: from infrastructure to education to popular culture. Women benefited the most, abandoning their hijab, entering universities in disciplines ranging from international studies to engineering and medicine

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The flames of protest, fanned by CFI, spread like wildfire to other colleges. PFI, the parent body, adopting its usual modus operandi, sought the support of ‘progressives’ for the agitation. In no time, Congress, which would have preferred ambiguity, decided to take a stand, with party general secretary and its main face in Uttar Pradesh (UP), Priyanka Gandhi Vadra, promptly tweeting that it was entirely the prerogative of a woman what to wear, whether a hijab or a bikini. That ridiculous tweet exposed publicly that Congress had little or no knowledge of the issue at hand simmering in Karnataka and/or was wantonly choosing to misinterpret the protest as one against a blanket hijab ban across the country for all Muslim women. The latter was intended, presumably, to resonate among minority voters in UP where elections are currently on. Little wonder, since the party’s first family has steadfastly refused to take any sage advice from old timers, that Congress faces extinction in the politically potent state and has never come close to the Lok Sabha majority mark since the Shah Bano case of 1985. Priyanka Gandhi’s tweet came soon after Karnataka’s Congress strongman and former Chief Minister Siddaramaiah decided to support PFI’s position on the hijab controversy.

Now, the lawyers representing the pro-hijab students in court—Kapil Sibal (Rajya Sabha MP), Devadatt Kamat (chairman of the legal committee for the UP polls), both have been pro-choice and pro-privacy in their positions, as part of their apparently progressive worldview—are arguing that the imposition of a ban on the hijab in schools/colleges goes against all that is progressive. Kamat went to the extent of claiming that wearing the hijab falls under the right to privacy as recognised under Article 21 of the Constitution, despite knowing that the same Constitution also places reasonable restrictions on the exercise of that right. This is virtually Shah Bano redux, in politically motivated responses. Progressives who would have otherwise interpreted the hijab, burqa, chador and other such overtly religious identity-linked items of clothing as oppressive symbols of patriarchy that seek to control women’s agency over their own bodies and minds have now chosen to go silent or use the same lexicon used in the Shah Bano case to brazenly pander to the ulema and other hardliners.

From one government college in Udipi, the hijab controversy has now taken on a momentum of its own and spread across the country, from Karnataka to UP to Madhya Pradesh (MP) to Uttarakhand, besides provoking reactions from the US and the 57-nation Organisation of Islamic Cooperation (OIC). The US Ambassador-at-Large for International Religious Freedom (IRF), Rashad Hussain, tweeted this a few days ago: “Religious freedom includes the ability to choose one’s religious attire. The Indian state of Karnataka should not determine the permissibility of religious clothing. Hijab bans in schools violate religious freedom and stigmatize and marginalize women and girls.” The General Secretariat of the Organisation of Islamic Cooperation expressed “deep concern over recent public calls for the genocide of Muslims in Hindu Parliaments, harassment of Muslim women on social media and the banning from schools of female Muslim students wearing the hijab…” Both were rebuffed firmly by the Government for voicing their opinion on an issue that was fundamentally domestic.

Pushkar Singh Dhami has promised that a Uniform Civil Code would be implemented in Uttarakhand if he returned to power. That flowed from the realisation that no consultations with the Hindu community prefaced the codifying of Hindu laws by the likes of Nehru

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“The OIC continues to be hijacked by vested interests to further nefarious propaganda against India. As a result, it has only harmed its own reputation,” said Arindam Bagchi, spokesperson for the Ministry of External Affairs.

The matter has also taken on myriad layers of concern as it spread across the country. As with the Shah Bano issue, the hijab controversy has triggered renewed debate on the need for the UCC. Earlier this week, Uttarakhand Chief Minister and the face of BJP in the hill state, Pushkar Singh Dhami, promised that the UCC would be implemented in the state if he was returned to power. That itself flowed from the realisation that no consultations with the Hindu community prefaced the codifying of Hindu laws by the likes of Nehru although an aggressive argument is being forwarded by the ‘progressives’ for years about how the Muslim community has to be on board fully through consultations for implementing a common civil code.

The issue of a hijab ban in schools and colleges has also triggered a debate within the Muslim community and without on whether the headscarf, an incredibly gender-repressive religious garb, is essential to the practice of the religion. Clerics have dug up Quranic injunctions to insist that it is mandatory just like the five prescribed pillars of Islam— Shahada (faith), Salah (prayer), Zakat (alms giving), Sawm (fasting) and Hajj (pilgrimage to Mecca). But the history of the hijab in Islam in predominantly Muslim nations such as Iran, which impacted a whole host of other Muslim countries, tells a completely different story. Prominent members of the community, such as Kerala governor Arif Mohammad Khan, who stood firmly against Congress’ subterfuge in the Shah Bano case decades ago, maintain that the hijab is not mandatory under Islam, elucidating this with instances from the history of Turkey in the time of Kemal Atatürk, when the hijab was banned (its political resurgence is evident in Recep Tayyip Erdogan’s Turkey today) and from Tunisia. Public schools and government buildings in Kosovo have banned headscarves and religious covering since 2009, Azerbaijan since 2010, Tunisia since 1981 (partially lifted in 2011), and Turkey (ban gradually lifted). These are the only Muslim-majority countries that have banned the burqa in public spaces. In Muslim states like Lebanon, Morocco and Tunisia, there have been reported cases of discrimination against hijabi students, which is seen in the context of political Islam or of fundamentalism against a secular government.

The larger issue is that even if it is an essential element of Islam, and therefore clears the test of essential practice laid down by the Shirur Mutt case, the ruling in that 1954 case held that the term religion will cover all rituals and practices “integral to a religion” and that all of these can be regulated. The same argument was used in the Sabarimala case where the contention was that it was an essential practice for all those who reposed faith in the deity at Sabarimala. Yet, the Supreme Court had said no.

A strange cocktail of arguments has emerged in support of the hijab in schools since last December, ranging from the completely new concerns of privacy rights violation, fundamentalist arguments insisting that it is ‘essential’ for the practice of Islam sanctioned by Quran, and that very familiar trope: the whole thing has been engineered by BJP as part of its plan to impose the domination of Hindus over minorities. Supporters of the hijab were, ironically, unwilling to even accept the interim order of the High Court of Karnataka on the contentious issue although it was clearly established that the parents of the girls had agreed to enrol them after signing an agreement that laid down the prescribed uniform for students. That they had done so despite the hijab being an ‘essential part’ of the Islamic faith for all these years appears to have raised no concern whatsoever.

What followed the Shah Bano judgment was shameful political pusillanimity, minority appeasement and gender injustice, with the Rajiv Gandhi government overturning the ruling by passing a new law. A momentous battle for the equality and dignity of Muslim women was lost to ensure political gains

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Thus far, the issue seems to be playing out according to a predetermined script. But there are still three or four moving parts, imponderables in this drama. One, given the bellicose manner in which the argument that the hijab is a must for practising Islam has been pursued, the intent of pushing the envelope is clear. Two, this open belligerence has found support from Congress to the conservative clergy. In the Shah Bano case, the support was an afterthought, driven mainly by political considerations and apprehensions. In the hijab case, however, Congress has voluntarily endorsed the stand taken by the ulemas and conservatives. There was more than an element of stealth while handling the party’s changing position on the Shah Bano issue, best demonstrated by the title of the 1986 law—Muslim Women (Protection of Rights on Divorce) Act—to cover up the actual intent of obfuscating and subverting that very thing, values enshrined in the Constitution. In the hijab case, however, one can see many mainstream political parties coming out openly to insist that hijab is a right. Ironically, this is happening at a time when the community itself is divided on the issue. This support from the mainstream parties displays an indulgence towards the new aggression of the community, thus marking the crossing of another red line, entering new and potentially dangerous territory.

Equally important to note is the spate of people coming out in saffron scarves and stoles in reaction to the hijab controversy. It is unlikely that this was spontaneous. But now, there is an effort to put saffron and hijab on the same footing. This comes at a time when saffron has been reduced to a pejorative—for the liberals, the colour is an ugly demonstration of religious militancy. It has got less to do with aesthetics and more to do with their political perspective. But the bhagwa has found widespread sanction. This is just the beginning. Especially since, unlike the last time when it took years for people to grasp the import of the Shah Bano case and its aftermath—the message of appeasement and pseudo-secularism—the ground is fertile this time round. Additionally, BJP is not a force just in Karnataka but all over India. There is a larger constituency today which is far more receptive to its message than was the case in 1985. This time, it is unlikely to be a silent acquiescing in Muslim aggression, backed by the cynical patronage of progressives.

About The Author

PR Ramesh