Book Extract: Mangling meaning and intent

Title: Memoirs of a Maverick: The First Fifty Years (1941–1991)

Author: Mani Shankar Aiyar

Publisher: Juggernaut

Pages: 400

Price: Rs 899 (paperback)

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In April 1985, the Supreme Court awarded maintenance to a divorced Muslim woman, Shah Bano, under the vagrancy provisions of the Criminal Procedure Code, overruling the processes of divorce settlement provided for in the shariat, or Muslim Personal Law.

To almost everyone in the country, it appeared self-evident that if an aged woman is abandoned by her uncaring husband, it follows that the husband must be brought to account. That ‘obvious’ conclusion has clouded all discussion on the steps Rajiv Gandhi took to resolve the conundrum with which he was faced.

These steps essentially involved long personal discussions with individuals and groups who were agitated (one way or the other) by the subject, including Muslim MPs who spoke eloquently and forcefully over a six-month period in Parliament on the subject, such as the polar opposites Arif Mohammad Khan and Z.R. Ansari; leaders of the Opposition, particularly the leader in the Lok Sabha, Madhu Dandavate; civil society activists of different persuasions; feminist groups; jurists of eminence, beginning with the highly reputed law minister Asoke Sen; students, journalists, opinion makers and a miscellany of others.

RG’s moves were not dictated by M.J. Akbar, as is often wrongly portrayed, but through a nationwide, objective appraisal of the situation. Above all, he deeply pondered the shariat provisions on marriage and divorce. Liberal and Hindutva opinion joined hands in portraying the shariat laws as barbaric remnants of desert existence in seventh- century Arabia that disregarded the rights of women, particularly divorced Muslim women.

The PM, on the other hand, came to the conclusion that the shariat in this regard was far from barbarous. The shariat in Islamic law made elaborate and equitable arrangements for the economic security of divorced Muslim women by devolving this responsibility on the male members of her family of birth.

If this were to fail, the relevant state’s Waqf Board was charged with maintaining the divorcee, at least until the woman got married again, which, one survey showed, happened in 78 per cent of the cases studied.

The fault lay not in the shariat per se but in the fact that only mullahs, muftis and maulanas could interpret the shariat and only petty local clerics were charged with implementing the provisions.

RG believed that the answer, therefore, did not lie in rejecting the shariat, but in incorporating its provisions in our jurisprudence, so that interpretation and implementation were placed in the hands of our civil courts.

To this end, the law minister in May 1986 introduced and had passed the Muslim Women (Protection of Rights on Divorce) Bill, which sought to bring within the ambit of India’s civil law the processes of maintenance decreed in the shariat, with the additional provision of the magistrate being authorised to ‘order’ the relevant state’s Waqf Board to look after divorced Muslim women who were neglected by the male members of their family of birth.

Critics described this as unwarranted ‘appeasement’ to garner minority votes. But this reconciliation of Muslim Personal Law and the nation’s civil law was accepted by hard-core Muslim MPs and the community as a whole, including Muslim clerics and theologians, as a solution that both respected the constitutional right of all Indians (both majority and minorities) to their respective personal laws and the humanitarian need to ensure that no woman was inhumanly abandoned to her fate.

Nevertheless, a renowned leftist Muslim lawyer and jurist, Daniyal Latifi, after the passage filed a writ petition in the Supreme Court in September 1986, four months after the passage of the Act, challenging its legitimacy. The 2001 judgment of the Supreme Court on this writ petition commended the former prime minister for giving effect to the 1985 Supreme Court judgment while meeting the concerns of the Muslim community.

In particular, the Supreme Court’s 2001 judgment held that no fundamental rights of divorced Muslim women had been abrogated by the Act of 1986.

Yet, Rajiv Gandhi has been portrayed—and continues to be portrayed—as pandering to backward-looking clerics to keep the Muslim vote bank with the Congress (‘minority appeasement’).

RG remarked to me in passing: “Where was the electoral advantage to me in all this? I knew I would be losing many of those who had supported me until then and giving an impetus to those who opposed me. I still went ahead to preserve the secular ethos of our nation.

"According to my opponents, half the electorate—women, whether Muslim or non-Muslim—will vote against me for this. So will men of all other faiths. So too will those Muslim men who regard themselves as ‘modern’ or ‘liberal’. That leaves only Muslim clerics and the hidebound orthodox on my side. So who am I appeasing?”

That perhaps best explains his rationale. What remains unexplained is why he restricted his views to personal asides instead of making them the core of a blistering attack on those who bitterly opposed him (which, in effect, was virtually everybody). Had I been his press advisor or spokesman, that is what I would have advised.