When humanitarian causes have been sacrificed at the altar of dogma by the state it has only reinforced public perception about the sectarian nature of the government in power. The Rajiv Gandhi government’s setting aside of a Supreme Court judgment which had upheld the right of Shah Bano — a divorced 62-year-old woman with five children — to receive alimony from her husband was perceived as showing how fundamentalist organisations could influence the government stance on legal issues. It only led to widespread accusations of “appeasement”, empowering the opposition including the BJP. And rights activists criticised the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986 for restricting husbands’ responsibility for maintenance payments. They pointed out that considering the radical religious point of view in this case excluded Muslim women from the benefits of civil law.

The use of archaic religious laws has often been a potent instrument of perpetuating set-ups that subjugate sexual minorities. The National Commission for Women had to step in recently to help in bringing to book the 69-year-old rapist who had violated his 28-year-old daughter-in-law in June 2006. A local Muslim panchayat then instructed the woman to accept her father-in-law as her husband and declared her marriage null and void — a finding upheld by the Darul Uloom at Deoband.

The state once again faces the mammoth task of reconciling its liberal-democratic commitment to minority aspirations with its responsibility to patiently hear out religious perspectives on the issue. But historical precedents clearly suggest that giving in to the latter has only raised further political problems, thwarted progressive social change, and further repressed marginalised social groups. Moily and company will hopefully bear this is in mind while “examining” the high court judgement and charting out a future plan of action.

... contd.