THE JUDICIAL DECISION THAT HAD A LASTING CONSEQUENCE ON SOCIETY

The Case that was the Undoing of a Great Political Party in India

Shah Bano was a Muslim woman who was married to Mohamad Ahmed Khan, an affluent and well-known advocate from Indore.  As luck would have it, she turned out to be a symbol in the constitutional struggle in a disorderly intersection of religious principles and individual rights as enshrined in a liberal democracy and the gendered perspective on the need to reform Muslim personal laws.  Some cases like Shah Bano tend to remain fresh in the annals of the country’s legal history and the citizens’ collective memory because of the ramifications of the judgments delivered in those cases.  The judgment delivered in this case by the apex court way back in 1985 reverberates in the courtrooms even today.  The Shah Bano case was a pivotal legal matter that had consequences for the rights of Muslim women. It raised important questions about their support on divorce and their rights as citizens. This case centred around Shah Bano’s request for financial support from her husband under Section 125 of the Code of Criminal Procedure. The case drew attention to the absence of clear rules regarding financial support in Muslim personal laws.  Moreover, this case underscored the clash between personal laws and the concept of a uniform civil code which aims to have a common set of rules governing personal matters of various faiths within the country irrespective of one’s religious beliefs. The case sparked a nationwide discussion about women’s rights and gender equality. It also prompted conversations about the necessity to address inequalities and protection of rights of Muslim women.  Apart from the legal consequences, this Supreme Court verdict had enormous political and social consequences that reverberate in the society even today.  It caused a public outcry as never before, with some parts of the society perceiving it as an intrusion by the State into the religious affairs while others regarded it as an essential step in securing women’s rights.

The Supreme Court of India last month had an occasion to deal with some part of this case once again.  In the process, it reinforced the position that a Muslim woman divorcee is entitled to maintenance from her husband even after divorce under Section 125 of the Code of Criminal Procedure. The Court emphatically observed while delivering the judgment that it is not a charity, but a right.   According to the Court, a Muslim woman could seek maintenance from her husband under Section 125 of the CrPC, as held in the landmark Shah Bano Begum case of 1985. The contentious issue of Muslim women getting maintenance under the secular provision of section 125 of CrPC had taken centre stage of political discourse ever since 1985 when a Constitution Bench in Mohd Ahmed Khan versus Shah Bano Begum case.  It had then resulted in a unanimous decision that ruled that Muslim women were entitled to maintenance either under her personal laws or under the CrPC.  The verdict created a controversy with regard to the true obligations of a Muslim husband to pay maintenance to his divorced wife, particularly beyond the 'iddat' period (three months).  The then Rajiv Gandhi-led central government in an attempt to "clarify" the position, brought the Muslim Women (Protection of Rights on Divorce) Act of 1986 which sought to specify the entitlements of such a woman at the time of divorce.   The landmark judgment in the Shah Bano case interpreted the personal law and also dwelt on the need for a Uniform Civil Code (UCC) to address the issue of gender equality.  It laid the foundation for equal rights for Muslim women in matters marriage and divorce.  Bano had initially approached the court for maintenance from her divorced husband who had granted her 'talaq' (divorce).  The legal battle, which started at a district court, ended up with the famous judgment by a five-judge Constitution bench of the apex court in 1985.   A Bench of justices B V Nagarathna and Augustine George Masih happened to deal with some aspects of Shah Bano judgment once again recently though the earlier judgment had extensively dealt with the issue of maintenance apropos the obligation of a Muslim husband to his divorced wife who is unable to maintain herself, either after having been given divorce or having had sought one. In the recent case the apex Court was hearing an appeal against a Telangana High Court order granting maintenance to a divorced Muslim woman under a section of the Code of Criminal Procedure that provides for maintenance. It was the man’s contention that his personal law did not oblige him to pay beyond the period three months.  The Supreme Court disagreed and said that Muslim women can seek maintenance under the Code of Criminal Procedure. The judgment follows a precedent of earlier judgments going back to the 1970s that have said nothing stops women from seeking maintenance beyond what personal law mandates. But, for the first time, its language establishes a new assertion: Maintenance, said Justice Nagarathna, is not charity but a right. The Bench (in Shah Bano case) unanimously went on to hold that “the obligation of such a husband would not be affected by the existence of any personal law and the independent remedy for seeking maintenance under Section 125 of CrPC 1973 is always available," the Bench noted.  The Shah Bano verdict also went on to observe that even assuming there is a conflict between the secular and personal law provisions in regard to maintenance being sought by a divorced wife, section 125 of CrPC will have an overriding effect. The Bench said the 1985 verdict explained that the wife has been conferred with the right to refuse to live with her husband who has contracted another marriage, let alone three or four other marriages.  This case in a sense revived memories of the Shah Bano case decided way back in 1985.

The recent case once again brough our focus back on the Shah Bano case because of the far-reaching consequences it had on equality of women’s rights.  The case brought the issue of gender justice and the rights of Muslim women to the forefront, sparking debates about the need for a uniform civil code in India.  It highlighted the tension between India's secular legal framework and religious personal laws, sparking a national conversation on the balance between individual rights and community autonomy.  The case became a political flashpoint, with parties taking opposing positions on whether to prioritise secularism or religious identity. The then government’s decision to override the court’s judgment was seen by many as a capitulation to vote-bank politics, particularly within the Muslim community.  The Shah Bano case remains a pivotal moment in Indian legal and political history, symbolising the ongoing struggle between personal laws and constitutional guarantees of equality and justice. It also played a significant role in shaping subsequent legal reforms for Muslim women's rights, including the 2019 criminalisation of triple talaq (instant divorce).  Shah Bano case likewise had a profound and lasting political consequence in India, affecting both the political landscape and the country's discourse on secularism, minority rights, and gender justice. Here are some of the key political consequences of this decision:

1.         Polarisation of the society:  The Shah Bano case became a flashpoint for debates between secularism and religious identities in India. Political parties and leaders were forced to take sides on whether to support secular laws that promote gender equality or to protect the autonomy of religious personal laws, particularly those of the Muslim community. This polarisation had significant long-term effects on Indian politics.

2.        Secular vs. Communal Divide: The case deepened the divide between secular political forces, who argued for gender justice and a uniform civil code, and those advocating for religious personal laws, especially within the Muslim community.

3.        The Government Intervention:  After the Supreme Court ruled in favour of Shah Bano, Prime Minister Rajiv Gandhi's government faced intense pressure from conservative sections of the Muslim community, who saw the judgment as interference in Islamic personal laws.  In an attempt to placate the Muslim community and secure electoral support, the government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 effectively nullifying the Supreme Court ruling. This law limited Muslim women’s right to maintenance from their ex-husbands beyond the iddat period (three months after divorce).

4.       Political Cost of Appeasement: While the move was seen as an attempt to appease conservative Muslim voters, it backfired politically. It led to widespread criticism, particularly from women's rights groups, secular intellectuals, and sections of the Congress Party, who accused the government of sacrificing women's rights for political gains.

5.        Hindutva Mobilisation and Rise of BJP: The Shah Bano case provided the Bharatiya Janata Party (BJP) and the wider Hindutva movement with an opportunity to capitalise on the sentiment that the Congress government was engaging in "minority appeasement."

6.       Uniform Civil Code (UCC): The BJP began aggressively championing the Uniform Civil Code (UCC) as a means of ensuring equality and eliminating religious-based laws, particularly Muslim personal law, which they portrayed as backward and discriminatory. The Shah Bano case was used as an example of how Congress was compromising secularism by yielding to conservative religious forces.  This incident played a significant role in galvanising Hindu nationalist sentiment which the BJP leveraged in its political campaigns throughout the late 1980s and early 1990s. The BJP’s rise as a major political force is often linked to this period as it tapped into Hindu anxieties about Congress’s handling of minority issues.

7.       Congress’s Declining Image:  The decision to reverse the Supreme Court ruling through legislation damaged the image of the Congress Party. Many saw it as evidence of the party's vote-bank politics, prioritising electoral gains over principles of gender justice and secularism.  Rajiv Gandhi's government was criticised for pandering to conservative elements of the Muslim community which alienated sections of secular and progressive voters. At the same time, this move did not fully secure the loyalty of the Muslim electorate, as the Congress was soon criticised for not doing enough to protect minority interests in other areas.

8.       Women's Rights Movements:  The case galvanised the women’s rights movement in India, particularly those advocating legal reforms and equality for Muslim women. Activists became more vocal in calling for changes to personal laws that were seen as patriarchal and discriminatory.  Although the Shah Bano case led to a legal setback for Muslim women, it planted the seeds for future reforms. Decades later, in 2019, triple talaq (instant divorce) was criminalised, representing a step toward greater gender justice within Islamic law in India.

9.       Secularism and Judicial Activism.  The Shah Bano case triggered debates about the limits of judicial activism in matters of personal law and religious freedoms. The Supreme Court’s intervention in the case was seen as part of its broader role in interpreting constitutional principles, especially those related to secularism and gender equality.  The political fallout from the case also demonstrated the challenges in balancing the Indian state's commitment to secularism with the sensitivities of religious communities, which remain a recurring theme in Indian politics.

10.     Congress's Erosion of Hindu Support:  The reversal of the Supreme Court’s decision was perceived by many Hindus as an instance of the Congress Party favouring minorities at the cost of the Hindu majority. This perception further alienated segments of the Hindu population, especially middle-class voters, from the Congress Party.  This erosion of support among Hindu voters eventually contributed to the Congress’s declining electoral fortunes in the 1990s and early 2000s, as it lost ground to the BJP and other regional parties.

The Shah Bano case had wide-ranging political consequences as evidenced by subsequent developments.   It weakened the Congress Party by exposing its vulnerability to charges of minority appeasement, fuelled the rise of the BJP and its Hindutva agenda, and intensified debates about secularism, gender justice, and the role of personal laws in India. The case also left a lasting legacy on India's political landscape by reshaping discussions around the Uniform Civil Code and minority rights, themes that continue to influence political discourse in the country even today.