Among the plethora of discourses and debates involving Muslim and Islamic issues globally, it is unfortunate that India rarely receives regular mentions. The focus on Muslim-majority countries has allowed publics and policymakers, especially in the West, to ignore a country where, even though Islam is a minority-religion, there are 190 million Muslims. This means India has the third-largest Muslim national population in the world, behind only Indonesia, with 225 million Muslims, and Pakistan, with 207 million Muslims. Any global discussions on the issues and problems affecting and emanating from Muslim populations, therefore, must include India. The Indian Subcontinent is home to a rich variety of religions in addition to Islam, from ancient Jain and Hindu traditions to the relatively young faith of the Sikhs. Each religious community’s development, thus, is tied to the deep history of the region.

Religious formations in India, including that of Indian Islam today, are profoundly influenced by the intricate histories of the greater Subcontinent before and after independence and Partition. Partition continues to be a self-conscious lens through which India, along with Pakistan and Bangladesh, interprets policy. This self-consciousness includes the way Indians have dealt with the issue of law. India maintains a hybrid legal system that includes civil, common, and personal laws throughout the country, with Islamic Law applying to Muslims in personal matters (marriage, divorce, inheritance). Understanding the intricate histories of the Subcontinent is vital, for the status of Indian Muslims today has been shaped by both community-specific developments and larger historical turns that Muslims and Islam were then subsumed in.

The Interference of Colonial Non-Interference

The Subcontinent experienced a wide variety of colonial encounters with European powers, but the defining colonial experience was with the British. The first colonial period, during 1757–1858, is known historiographically as Company rule in India, referring to the dominions of the East India Company, a joint-stock company given Royal Charter to trade in the Far East. After the Rebellion of 1857, the Company was dissolved and control of its dominions was assumed directly by the British Government on behalf of the Crown. This second colonial period, during 1858–1947, is known historiographically as the British Raj.

The British Raj in 1909, which then included Burma. Red: British India. Pink: Nominally sovereign but British-administered. Yellow: Vassal princely states.

During both Company and Crown rule, British authorities increasingly sought to ease native sentiments against their rule through a policy of non-interference, allowing local communities to maintain control over internal communal affairs via personal laws. This policy, however, eventually morphed from non-interfering maintenance to encouraging and incentivizing personal law consolidation, which, ironically, became its own form of interference. Before the British, vast bodies of differing literatures existed pertaining to Hindu and Islamic legal traditions. The consistency of their usage and daily value, however, was never evenly established or compelled until the British became involved.

At the behest of the authorities, British legal scholars began aiding natives in deciding which literatures and traditions made sense to include in the consolidation of personal laws. This is why the body of legal literatures and common law developed in the colonial period has been most accurately referred to by scholars as Anglo-Hindu and Anglo-Mohammedan, rather than just Hindu and Islamic. The peculiarity of the Hindu personal laws is that they also applied to Sikhs, Jains, and Buddhists. The colonial involvement compelled a consolidation of legal frameworks and communal control that, although not without some foundations before the colonial encounter, became more defined and stringent because of colonial intervention. This intervention, therefore, has a clear legacy in the maintenance of personal laws, Islamic and otherwise, in contemporary India, even and especially after independence and Partition in 1947.

The Muddled Ideologies of Partition

Partition, in all of its complexity and grotesquery, is a subject that shall remain historiographically convoluted and endlessly debated. However, there is one particular aspect of Partition that is possible to clarify here and necessarily so. The maintenance of consolidated personal laws from the colonial period into independence and Partition seems at odds with what were otherwise secularist leaderships and motivations during Partition, including on the Muslim League/Pakistan Movement side, which was led at the time by Muhammad Ali Jinnah.

Jinnah was an avowed secularist who imagined Pakistan as a secular, Muslim-majority homeland. It is Jinnah’s central role in Pakistan’s founding that has, thus, created a particular historiography, especially among Pakistani secularists, that a secular Pakistan was real and then subsequently lost. However, the broader history reveals different facts that have bearing on both modern Pakistan and India, which is that Jinnah’s involvement was accidental and incidental.

For much of the 1920s and 1930s, Jinnah was in the socio-political wilderness, uninvolved with independence movement activities. The increasingly key figure during this time for many Indian Muslims, and the ideological father of Pakistan, was Muhammad Iqbal. Iqbal was no secularist and advocated for a Divine Law nomocracy based on Muslim religious identity. It is only because Iqbal knew that he was physically fading in the mid-1930s that he called upon Jinnah to return to the public sphere and assume leadership of the Muslim League and broader Pakistan Movement.

Pakistan’s early secularity, therefore, was an accidental and incidental veneer because of Jinnah’s late but pivotal involvement. It is perhaps no surprise, then, that Pakistan turned into what Iqbal imagined it to be. This religious-communal divide that was initially stirred up by Iqbal and manifested into Partition, therefore, also underpinned modern Indian policy concerns regarding Indian Muslims, primordially tying the concerns to the need for accommodating Islam as a faith. This disposition had major ramifications for debates among the key leaders of independent India. Their decisions would set the foundation for Indian policy for decades to come.

The Pandit, the Sardar, and the Maulana

There is much that can be discussed about Partition and decisions made in the ensuing years, but it suffices to focus on three key Indian leaders during that period. The first is Prime Minister Jawaharlal Nehru, commonly referred to with the title of Pandit, referencing his family lineage of Kashmiri Pandits (Brahmin scholars). The second is Vallabhbhai Patel, a Gujarati affectionately known by the title of Sardar (Chief), who simultaneously served as Deputy Prime Minister, Minister of Home Affairs, and Commander-in-Chief of the Armed Forces. Patel is a surname that further denotes a class of land-owning agricultural and merchant families. The third is Abul Kalam Azad, the most prominent Muslim to remain with India, who served as Minister of Education. Azad was a Maulana, a term given to degreed Muslim scholars in South Asia.

These backgrounds are highlighted to illustrate the diverse persuasions at work in the then-nascent Indian Government, a challenge on its own terms made more severe with Partition and the consequent chaos. All three men were members of the Indian National Congress (INC), the political party central to the independence struggle, and all equally detested the agitations of Jinnah, the Muslim League, and the Pakistan Movement. However, they differed on their approaches to Partition, personal laws, and policies toward Muslims that remained in India.

Patel is among the most misunderstood and misappropriated figures in Indian history. Some Indian Muslims and Leftists denounce him as anti-Muslim, while some Hindu Rightists celebrate him as a Hindu nationalist. Neither characterization is correct, with some of the misperception fueled by his fights with Azad. While Nehru and Azad still tried to accommodate Jinnah and the Muslim League as late as 1946, a year before Partition, Patel considered Partition then as an in-motion inevitability that might as well be embraced to prevent Parliamentary gridlock and civil war. This was why, in one heated exchange, Azad accused Patel of being more pro-Partition than Jinnah.

Azad’s perspective meant wanting the Government to enact policies that would incentivize Muslims to remain in India, a position on which he was joined by Nehru. Conversely, Patel’s blunt personality and hardened pragmatism meant that he saw the decision to remain with India as a matter of individual choice and loyalty, not something that was the responsibility of the Government to manage and pander to. These differences were exacerbated by differing perspectives on the broader role of government and economics, because while Patel, given his background, defended property rights and private enterprise, Nehru and Azad were fervently socialist in orientation.

Thus, the debate over personal laws was already inflected by these differences in background, philosophy, and personality. Furthermore, the three men had varied interpretations of what secularism in India would mean in actual law and policy, especially as it concerned a Uniform Civil Code (UCC). The Constitution of India, ratified in late 1949 and effected in early 1950, includes Article 44, which reads The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India. However, Article 44 created no mechanism nor explicit obligation to create a UCC. Nehru was the most unabashedly in favor of one, but he soon encountered opposition from both Patel and Azad, albeit for different reasons.

Azad, though a secularist himself, feared that an immediate UCC would be seen as an imposition on what was left of the Indian Muslim community, one still split over Partition and its place in India. He feared that an abrupt change would appear as an attack by the Hindu majority, potentially validating the arguments of those in the Pakistan Movement, who now led an adversarial state that might take advantage of unrest in India. Azad imagined a gradual, national process of UCC formation by merging the best aspects of various cultural and religious traditions.

In parallel, Patel opposed a UCC to avoid triggering unrest among conservative Hindus, who felt it was anti-Hindu and anti-Indian. Though Nehru was disappointed with the multi-pronged opposition to a definitive UCC, the compromise he embraced, via Patel, was to pass a series of laws in the 1950s known as the Hindu code bills. These were a comprehensive set of reforms to Hindu personal laws, which, per the colonial legacy, continued to apply to not just Hindus but anyone who was neither Muslim nor Christian. Furthermore, a separate Special Marriage Act was passed to allow citizens the option of civil marriage beyond the jurisdiction of any personal laws.

One difficulty in assessing this period is that the arguments of each leader were valid in their own way. Azad’s accommodating position made sense for the short-term in light of Partition. Patel’s compromise was pragmatically transitional, while Nehru’s idealism for an immediate UCC made sense for the long-term. The legacy of the compromise is a mixed one. A UCC was not achieved, but liberal progress was made on a variety of social issues concerning the Hindu community. This was especially true with regards to Hindu women and what are legally termed Scheduled Castes and Scheduled Tribes (SCs and STs) and Other Backward Class (OBC), recognized groupings of historically disadvantaged populations. The negative legacy of this compromise, which lasts to this day, is that Muslim personal laws remain utterly unreformed and uncodified. This has left sections of the Muslim community, such as women, in profoundly regressive status.

Furthermore, it has allowed the Muslim community to occupy a peculiar socio-political space within Indian society, one that is, unfortunately but understandably, stigmatized and held in contempt by many non-Muslims as an undeserved gift of immunity from state interference and standards. The role of the INC in creating this status quo was and is not lost on those unhappy with this Muslim immunity. The unreformed state of the Muslim community, and the negative perception among others that it is the “pet” of the INC, were only made worse with time by the INC leadership. After Nehru, the leadership continued to consist of his descendants, who turned the INC into a political apparatus of the Nehru-Gandhi family.

Minority Politics and the Nehru-Gandhi Dynasty

Nehru died in office in mid-1964 and, following a brief interregnum, Indira Gandhi, his daughter, became Prime Minister at the beginning of 1966. Indira took the surname of her husband, Feroze, who has no relation to Mohandas K. Gandhi. The INC has, thus, been defined and dominated by members of the Nehru-Gandhi family and their close associates.

Indira was Prime Minister during 1966–77 and then again during 1980–4. Her time as Prime Minister proved controversial, as she increasingly centralized power not just on the national level but further within her own Secretariat, disempowering even the Union Council of Ministers. The growing opposition to her leadership, in both the Government and the wider public, led to splits within the INC and a consequently authoritarian period, known as the Emergency (1975–7). During the Emergency, Indira ruled by decree and quashed political opposition and the free press.

These internal upheavals and her own sense of insecurity led to the adoption of cynical electoral strategies, including appropriating the Muslim-minority community as a vote bank, since the Hindu-majority vote remained fragmented. Indira and her loyalists created a discourse that portrayed the INC as the sole entity capable of protecting the Muslim community against meddling forces. Beyond this discourse, these strategies did have serious institutional implications.

In 1973, the All India Muslim Personal Law Board (AIMPLB) was created, charged with protecting and advising on matters related to Muslim personal law. Although it remains a non-governmental organization, it was created under the auspices of Indira and has behaved like a quasi-governmental authority. Indira’s goal in its creation was to appease and embolden regressive Muslim leaders in exchange for them guaranteeing mobilizations of Muslim voters for the INC. These relationships only grew with time. In the run-up to the 1980 elections, Indira formally made an agreement with Syed Abdullah Bukhari, then the Shahi Imam of Delhi’s Jama Masjid, to deliver a program specifically for the Muslim community in exchange for electoral support.

Left and Right: Indira Gandhi and Rajiv Gandhi.

After Indira’s assassination in 1984, her son, Rajiv Gandhi, became Prime Minister and remained so until the end of 1989. The INC’s pandering to regressive Muslim constituencies continued under Rajiv, most notably with the 1985 Shah Bano case, known formally as Mohd. Ahmed Khan v. Shah Bano Begum. The case, argued before the Supreme Court of India, pitted Shah Bano, a Muslim mother of five, against her ex-husband, Mohammad Ahmed Khan. Khan had taken a second wife, divorced Bano, and evicted her and the children out of his house in 1978. Bano filed suit against her husband for the right to alimony, which he had denied. Khan defended himself using Muslim personal laws, arguing that having a second wife was legitimate to begin with and his use of Islamic Triple Talaq divorce, unilateral repudiation by invoking the word Talaq three times, eliminated further obligations to Bano.

The Court ruled in favor of Bano. It declared that even on Islamic grounds, she was entitled to alimony from Khan, but, ultimately, she was owed maintenance according to Section 125 of the Code of Criminal Procedure (CrPC), which refers to maintenance regardless of caste or religion. As the national source of criminal law, the CrPC stands above all personal laws. Facing pressure from some Muslim politicians and institutions like the AIMPLB, Rajiv and the INC passed The Muslim Women (Protection of Rights on Divorce) Act in 1986. This diluted the ruling in the Bano case by only requiring Muslim husbands to provide maintenance during Iddah, the Islamic 90-day period after divorce. Objective observers saw this for what it was, a perversion of Indian soft secularism to favor minority religious chauvinism for cynical, political calculations.

The Ongoing Debate on Secularism and Law

As was true for Shah Bano, the Court has been assertive in its statements and rulings related to personal laws and a UCC. This has been especially true from the 1980s onward, after its authority and independence was restored following the harmful meddling done by Indira before and during the Emergency. The Court does not possess any enforcement mechanisms for its rulings, but it nonetheless has played an important role in declaring Constitutional protections for a wide variety of social and economic rights, beyond just the matter of Muslim personal law.

The edifice of the Supreme Court of India.

In 2015, the Court heard a case involving Christian personal law, which requires couples to undergo a judicial separation of two years before petitioning for mutual divorce. This differs from statutes in other laws, such as the Special Marriage Act, Hindu Marriage Act, and Parsi Marriage and Divorce Act, which only require a judicial separation of one year. Among other Justices displeased with the Government’s failure to create a UCC, Justice Vikramjit Sen stated during one hearing, “we have to stamp out religion from civil laws. It is very necessary. There are already too many problems.”

In August 2017, the Court made another landmark ruling in relation to Muslim personal law in Shayara Bano v. Union of India. Shayara Bano (no relation to Shah Bano), after years of abuse by her husband, was divorced by mail with a written Triple Talaq. The Court ruled that Triple Talaq, whether invoked in speech, writing, or electronic transmission, was unconstitutional. However, in its ruling, the Court still relied on invocations of the Quran, Hadith, and legislation in other countries that abolished Triple Talaq to make its point. It is unclear whether it was post-colonial inertia or rhetorical strategy that compelled the Court to still invoke interest group reasoning versus exclusively invoking Constitutional protection.

The incumbent Prime Minister of India, Narendra Modi.

In December 2017, the Lok Sabha, the lower house of the Parliament of India, passed The Muslim Women (Protection of Rights on Marriage) Bill, which made Triple Talaq illegal and punishable by up to three years of incarceration. The effort was spearheaded by incumbent Prime Minister Narendra Modi and his Bharatiya Janata Party (BJP/Indian People’s Party). Although some parties, including the Opposition INC and coalitional partners of the BJP, expressed concerns about the Bill being rushed, the INC did not oppose it at the final vote. It is apparent that with minority votes fracturing and the Hindu majority increasingly consolidating into a common voting bloc, the INC no longer has an interest in minority appeasement politics.

The challenge for the Bill remains, as it still has to pass the Rajya Sabha, the upper house, where the Opposition has greater numbers and the skepticism of the BJP’s own coalitional partners could imperil the Bill. Furthermore, it also remains to be seen whether the proclaimed commitment of Modi and the BJP leadership to a UCC manifests symmetrically within the Party. A UCC authored by BJP leadership will likely reflect upper caste Hindu norms and laws. Such a proposal may attract opposition from other BJP factions that have different cultural persuasions and, thus, different concerns regarding what a UCC should address.

Choosing Time for Indian Muslims

This long view of the grand historical turns is essential in understanding the complexities of the issues at stake, but it would be negligent to not acknowledge and factor in the agency and choices of Indian Muslims themselves. Notwithstanding the complexities of Partition and the machinations of the Nehru-Gandhi INC establishment, Indian Muslims have allowed themselves to be politically appropriated. Too many have chosen to comfortably dwell within minority communalism and socio-religious intransigence, delegitimizing critical Muslim voices and incentivizing the stigmatization and suspicion of Muslims by other Indians.

Left and Right: Muslim populations by totals and by percentage.

Whether by fear, complacency, or a misplaced sense of supremacy, Indian Muslims have led themselves into a trap. It is one they supposedly wanted to avoid as a minority community unavoidably tainted by Partition, even with prominent Muslim loyalists like Azad. Rather than voting on substantive policy issues and operating socio-politically based on contingent circumstances, Indian Muslims embraced a partisan shelter that, other than reinforcing their most regressive instincts, did nothing meaningful for them and is already moving on.

A now surging Hindu nationalist electorate feels little need to be concerned about Muslim priorities, contemptuous of the double standards and the defensive clientelism that Indian Muslims have engaged in. Many non-Muslim Indians, therefore, easily dismiss Muslims as not being truly vested in national concerns. Building new political relationships and engagements, based on substantive trust in broad-based policy matters, will take time, but it is something Indian Muslims, en masse, must begin immediately to preserve what is left of their standing. Most importantly, if a UCC is approved that alters the status of Muslim personal law, Indian Muslims must not react with agitations or militancy, for their status in the country might irrevocably be destroyed.