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Law and Religion in India and Beyond

Workshop report: “Religion, Civil Society and Personal (Family) Law Reform in Post-Colonial Nation-States: Interrogating Secularity in India and Beyond”

On 25 June, the Kolleg-Forschungsgruppe “Multiple Secularities – Beyond the West, Beyond Modernities” conducted the workshop “Religion, Civil Society and Personal (Family) Law Reform in Post-Colonial Nation-States: Interrogating Secularity in India and Beyond”, convened by Anindita Chakrabarti from IIT Kanpur. The workshop traced the changing frames of secularity in the context of governance of personal law in post-colonial nation-states. It focused on unpacking some of the recent as well as historical dynamics of judicial reform of personal law in India and other post-colonial countries to think through how the principle of secularity has been intertwined with the questions of authority, authenticity and governance. Taking India as the starting point of this sociological investigation, the workshop looked into other post-colonial contexts covering Sri Lanka, South Africa, and Indonesian cases.

In her introductory note, Anindita Chakrabarti (KFG “Multiple Secularities”/IIT Kanpur) highlighted that in the contemporary public discourse in India, there has been a definite shift from the guiding principle of secularity as ‘balancing religious diversity/multiculturalism’ to that of ‘subjection of religion to the rule of law’. Therefore, she emphasised how important it is to understand these contested meanings to make sense of the fate of the category of religion and its ‘other’ in post-colonial nation-states where they articulate and negotiate their space within the framework of constitutional rights, a reformist judiciary and civil society activism. The keynote address by Flavia Agnes (Lawyer, Author and Mumbai based activist) explored gender issues and the politics of women’s rights in India by analysing the current trends in the judicial reform of Muslim Personal Law in India.

By revisiting Narasu Appa Mali judgment in light of the Shayara Banu case, Anuj Bhuwania (Ambedkar University, Delhi), explored whether personal laws are subject to the Indian Constitution. The Indian Constitution, right from its inception, has been so interpreted as to place personal law beyond the Constitution. This position has been gradually modified, and only uncodified personal law is now seen as beyond judicial review. Various statutory personal law norms have been struck down as unconstitutional in recent decades. However, in two important recent decisions of the Indian Supreme Court, the judgements on the triple Talaq and on the access to the Sabarimala temple, long strides have been taken to minimise the Narasu precedent. The interpretation, in this case, declared all Muslim Personal Law in India as codified, taking a sweeping view of the 1937 Shariat Application Act. Either this expansive interpretation of the 1937 Act, Bhuwania argued, would lead to almost all personal law being deemed to be codified and thus subjected to the Constitution, and indirect death of the Narasu doctrine. Or, there would be a situation where Muslim Personal Law would be subjected to widespread constitutional challenges, while other personal laws would not meet similar fate. Both these consequences have important implications for the concept of secularity in the Indian context.

Suchandra Ghosh (KFG “Multiple Secularities”) focused on the Muslim Personal Law in the Indian context. Ghosh explored how legal pluralism operates through procedural and institutional cooperation and collocation between religious and civil institutions. In such context, the qazi, police, magistrate’s courts (in other contexts, women’s organisations) are aware of one another’s presence, and the solutions are sought to bear in mind this plural legal landscape with a focus on resolving personal disputes. Plurality is invoked at the normative level as well as in practice. The paper by Ghosh and Chakrabarti mapped the everyday process of adjudication wherein religion is entangled with the resolution of matrimonial and familial disputes. It was argued that these matters were as much the subjects of religious, ethical practice as they were matters of citizenship rights and ‘constitutional morality’.

Based on a study of legal adjudication of marriage and divorce across formal and informal arenas in contemporary Mumbai, Gopika Solanki (Carlton University, Ottawa) argued in her presentation that the shared adjudication model in which the state splits its adjudicative authority with religious groups and other societal sources in the regulation of marriage can potentially balance cultural rights and gender equality. The shared adjudication model facilitates diversity as it allows the construction of hybrid religious identities, creates gaps in solidified group boundaries, and makes institutional spaces for ongoing inter-societal dialogue.

Mujeebu Rahman’s work explored the secularity debate in India by examining the interrelationship between the authority of fatwa and the Muslim Personal Law from the context of much-discussed Malabar Muslim’s pious life. His ethnographic engagement with fatwas tried to depict this rich sharia experience of the region.

Farzana Haniffa (University of Cambridge) discussed Muslim Personal Law reforms in post-war Sri Lanka. Sri Lanka is in the middle of a keenly felt debate regarding reforming the Muslim Marriage and Divorce Act (MMDA). She explored the multiple ethical positions elucidating a wide variety of responses to an issue that is getting a lot of attention among the country’s Muslims. The manner in which Muslim men have been sexualised and how it fed into the current anti-Muslim hate sentiment have been emphasised in her work. The MMDA reform debate thereby gets inflected by a ‘stereotyping’ of Muslims. Haniffa argued that the reforms and the struggle for change are framed more and more as a process whereby Muslims have to be saved from their Muslim-ness.

Abdulkader Tayob (University of Cape Town) conferred about the discourse of Muslim Personal Law in South Africa’s political secularism. The recognition of Muslim Personal Law in the new Constitution galvanised a ‘Muslim’ discourse. It included irreconcilable conflicts that marked the debates and arguments within Muslim society. Some sections of Muslim society are still opposed to any form of legislation that would attempt to reconcile MPL and the Constitution. His paper concluded that religious discourse could not be easily simplified in one particular position. The state and its value may be matched by elements in the religious discourse, which, using Foucault, he called utopian. But these are assailed by heterotopic tendencies within religions that go beyond the state and nation. They are not entirely innocent of state and nation, but their interests extend in time and space beyond these. Close attention to these practices indicate compromises on the part of both the secular state and religion.

Mirjam Künkler: (KFG “Multiple Secularities”) explored the proposals for the Muslim family law reform in Indonesia, where Muslim family law is regulated according to the 1974 Marriage Law and the Compilation of Islamic law (KHI). After the country’s democratisation in 1998, various groups called for reforms of the KHI, not least to bring it in line with Indonesia’s constitutional and international human rights commitments. In the early 2000s, a research group inside the Ministry of Religious Affairs was convened to work on a so-called Counter-Draft, which proposed various changes to the law, including the prohibition of polygamy, the equalisation of divorce and inheritance, the raising of the minimum marriage age, and facilitation of inter-religious marriage. The presentation reviewed the drafting process and its aftermath, and spoke about wider implications for family law reform and the implementation of Islamic law in Indonesia, drawing inter alia on fieldwork with members of the drafting committee as well as Islamic court judges.

The workshop provided valuable case studies and theoretical investigations that could be of interest to the scholars of the law, religion and secularity. In his concluding remarks Justin Jones (Oxford University) pointed out the need to go beyond the high political/state narrative to more local practices and cultural lives of secularism/secularity in society. The crossing of disciplines in the presentations departing from political studies to sociology and anthropology and study of religions helped to raise interesting questions about Islamic and other community mediations of non-judicial and judicial actors.

The workshop brought to the fore long-term unavoidable entanglements: individual vs. community rights; legal universalism vs. legal pluralism; centralisation vs. decentralisation of law, that do not necessarily move towards a solution but remain engaged in conversation ongoing and ever-changing. Entanglement of state and secularism with the community means it is definitional of religion too. As Talal Asad and others have argued, secularism and religion are mutually constitutive. The workshop also underscored that the argument of interlegality, perhaps, richer than often emphasised.

The papers also showed that the state is involved not just in disciplining of religion or legitimizing particular types of religion, but making new kinds of religion. Examples include non-state foundations which have come into being and thrived in this new condition of secularity, for instance, Darul qazas, mahallu/mosque and fatwa committees, and Tauhid Jamaat in Sri Lanka, also consultant style firms that states rely upon as interlocutors between state and religion, for instance, MPLB in South Africa, state Islamic judiciary in Indonesia etc.  All of these examples are very different from an Asadian narrative of a privatised religion based on belief and constraint. Instead, they are socially and politically engaged in a far less boundaried way. How do these work as a process of secularisation and how do they speak to the cases that Asad and his colleagues who have worked on the Egyptian case envisaged? All give a sense of complexity and plurality and intermeshed fates of religion, state and secularism; also, how the secularity as a concept makes sense as an analytical framework for a comparative research plan that aims to examine the historical transformations of religions under conditions of modern structural differentiation.

Mujeebu Rahman K.C.