Sharia and secular nation state; locating Muslim women’s rights.

Opini Diary – Farhana Ashique

 

 

As I find my article (titled: ‘Triple Talaq: Islam and secular contentions‘ published on Maktoob Media) being countered with a number of arguments made on various grounds, I am trying to engage with each in possible ways. I had attempted to point out the problems of political location of contemporary controversies around Triple Talaq.My concern was to foreground the authority of Islamic legal hermeneutics as far as Sharia is concerned. The counter put forth against my work is that I am less concerned about the ‘universalization of rights’ than I am for the ‘universalization of law’. As far as the idea of ‘rights’ is concerned, I find it problematic to postulate ‘right’ as a universal category over ‘law’. This is an entirely different long winded debate altogether. The problematics of human rights which is an oft taken for granted idea is discussed at length by various scholars like Talal Asad who potently criticizes the grand claim to universality by human rights discourse which paradoxically are already being vested in state/cooperate interests. The claim to universality is embodied in particularity and is established when financial/national interest are met. In the article I was only trying to show the often unexplored potentiality of a discourse circumscribed within the Islamic tradition that far precedes the advent of modern nation state and its paraphernalia of which Islam will always remain as an ‘undecipherable other’.

There is a criticism levelled that I have reduced the whole debate into a triple Talaq vs secularism binary and that this overlooks the dynamics of Islamic jurisprudence. It is crucially important to note that questioning the contemporary secular legal concerns doesn’t close the door to seeing an embodied diversity of Islamic legal ontology. Because of this, it’s important to locate contemporary contentions over Sharia rules clearly to its political context which I have attempted in the article. I am not saying Sharia rules are purely interpreted and imported from heaven as a readymade item to be consumed, but it’s clear in the conclusion of my article that the call given is one for grounding the whole discourse in the realm of Islamic legal framework.

The assertion that I have homogenized the Islamic jurisdictional practice is a blunt one in another way that, as I have not throughout the article displayed any capacity of being authoritative on the same nor have I passed any judgements on Fiqh like my allegers some of whom seem to be passing easy judgements on the Quran and its hermeneutics. Rather what I can do is only to talk about the right of interpretation and cultural autonomy of Muslims in a secular nation state.

On the question of ‘Freedom of religion’ one needs to be clear if they are talking about the freedom of practicing religion or interpreting religion. The space for sound interpretation of scriptures in consultation with well qualified ulama is violently denied even when one evokes ‘freedom of religion’ and erroneously deploy scores of articles from the constitution without understanding the intricacies of personal laws. By overlooking this cultural autonomy that is guaranteed by the constitution, one can blatantly reduce the complexities of Triple Talaq and flagrantly dislocate it from Sharia by cherry picking articles from the constitution which is deeply problematic for that I have given reference in the essay.

Now coming to the claim laid about the ‘already marginalized Muslim community and its basic problems’. As far as the social backwardness of a community is concerned, I feel most of the arguments are carefully designed in a way that puts Sharia/Islamic jurisprudence at stake. I think social backwardness needs to be understood as part of the general condition of Indian Muslim community with it’s historical background and should be solely the concern of the state. For the Muslims, when the backwardness is evoked, it is always formulated in relation to the Sharia debate, state here becomes immune, and the whole debate puts the heavy onus on Muslim ulama. What I have attempted in the article is to prove that the contentions with regards to the same also can be accommodated into a Islamic legal framework. So taking any social condition into account whenever a legal opinion is made should be understood as part of an ‘Islamic legal sensibility’.

Farhana Ashique is a graduate student of English Literature in Daulat Ram college Delhi University

Image credit:  Mohammed Tawsif Salam/Wikimedia Commons

 

 

 

 

 

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