Jamiat Ulema-e-Hind's Petition Against Same Sex Marriage An Unnecessary Step
By
New Age Islam Staff Writer
19 June
2023
The
Petitioners Have Not Challenged Quran's Teachings
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In November
2022, Supriyo Chakraborty and Abhay Dang filed a writ petition in the Supreme
Court seeking legal approval of same sex marriage. In 2018, Supreme Court had
legalised homosexuality. Since, the issue was a sensitive one, the Supreme
Court referred the case to a five judge bench. The petition is under
consideration of the bench.
The
government of India, the Bar Council of India and a section of the civil
society have opposed the idea of same sex marriage. The government of India
said that the idea of same sex marriage was only an urban elitist view and that
the judicial creation of a new social institution of same sex marriage should
not be considered a right. It was of the opinion that same sex marriage was a
threat to the holy union of a biological man and woman in India. The government
of India further felt that same sex marriage was against Indian culture and
heteronormative frame work of sexual relations.
The Bar
Council of India also opposed same sex marriage and claimed that 99.9 per cent
Indians opposed the idea of same sex marriage. However, it did not give any
proof of their claim. It passed a resolution requesting the Supreme Court not
to adjudicating in the petition. They considered it highly inappropriate.
Meanwhile,
Pew Research Centre published a survey report on same sex marriage. The report
said that 53 per cent of Indians favoured same sex marriage.
But the
issue took a bizarre turn with the Islamic organisation Jamiat Ulema-e-Hind
moving the Supreme Court opposing the petitions seeking legalisation of same
sex marriage. It said that same sex marriage was against the teachings of
Islam. It called on the judiciary not to transgress into legislative domain by
legalising in India a western concept that hits at the sacred institution of
marriage and family and obstructs the natural process of procreation.
The
petition says:
"Islam's
prohibition of homosexuality has been categorical from the dawn of religion.
From the primary religious text, the holy Quran, to the embargos placed through
to the teachings of Prophet Mohammad, the primary legislator and to the
interpretations available in the work on the Islamic teachings in gender
relations and sexuality, the position of Islam with respect to the prohibition
on homosexuality is undisputed and established."
The
statement gives the impression that the petitioners have directly challenged
the Quran and therefore, the Jamiat had to rush to defend the Quran. That is
not the case. The petitioners do not believe in the Quran or even in the Indian
sexual ethos. They are among the millions of homosexuals in the,world who have
been fighting for their rights. Islam or Quran is not their direct target. They
do not believe,in Islam so they dont know,what the,Quran says on the issue. The
Supreme Court will also adjudicate in the matter according to their own
judicial parameters and not according to what Islam says because India is not
an Islamic country and its legal systen is not based on Islamic shariah. India
is,a democratic country and its Constitution grants equal religious rights to
all the religious communities. It grants right to profess their own ideology
even to the atheists. The courts decide any issue under legal parameters and
not according to the parameters of a particular religion. According to
government statistics, 2.5 million gay people kive in India but the petitioners
have claimed that 8 percent of the Indian population are homosexual. LGBTQ have
been seeking their rights and in 2009 the Delhi High Court had legalised
homosexuality. In 2018 the Supreme Court legalised consensual gay sex in India.
The current petition seeking legalisation of same,sex marriage is only a
logical progress of that campaign and the Supreme Court will adjudicate under
the current legal frame work.
Earlier,
when homosexuality was legalised, Islamic organisations and Muslims had
protested, citing the Quran's injunctions against homosexuality. The judgment
of the court did not seek to impose its judgment on Muslims. Muslims were free
to follow Quran and hadith on the issue. The judgment was only for those who
sought legalisation of homosexuality. In the same way, in case, the Supreme
Court legalises same sex marriage, it should not be seen as an onslaught on
Islam. Same sex marriage will remain a taboo in Islam irrespective if what the
courts say. Therefore, Muslims should not see any move by any group or
community as an attack on their religion. The Jamiat itself acknowledges that
the rights of LGBTQ are being granted on atheistic paradigm. It says:
"The
context and the social structure in which the LGBTQIA+ movement brewed from LGBT
to LGBTQ and further to LGBTQIA+. The background has been expanding day by day
and has been the atheistic paradigm and not the one that is based on theistic
value system."
This is the
problem with Jamiat. It thinks that the judiciary of India should act only on
theistic value system, or on Islamic value system. India's democratic system
honours even atheistic value system and takes into consideration the global
advance in granting LGBTQ rights as well. Muslims are free to propagate their
views and beliefs on sexual issues and tell the government and the judiciary
what is right od wrong according to their scriptures but they should not
consider any move by a homosexual group in the courts an onslaught on Islam. It
will be an onslaught on Islam only when the court enforces a law or judgment
that goes against the injunctions of the Quran and hadith on them. Therefore,
Jamiat's petition against same sex marriage was an unnecessary step.
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Same-Sex
Marriage: In Attacking Notions Of Love, The Jamiat-e-Ulema-e-Hind Propagates A
Narrative That Is Hostile To Change
By Shahrukh Alam
April 22,
2023
The
Jamiat-e-ulema-e-Hind is before the Supreme Court seeking to intervene in a
writ petition, which, in turn, prays for the “right to marriage” for sexual
minorities. Some of us were hoping that the organisation would refrain from
jumping into the fray, embarrassing a significant number of Muslims by trying
to form a “Muslim narrative” on the issue that is hostile to change,
unempathetic, and also hegemonic.
An
application for intervention normally implies that the intervener has something
worthwhile to contribute to the matter at hand, or that the resolution of the
dispute, one way or another, will have a bearing on the intervener’s rights and
interests. It would seem from reading the application that the organisation
finds that its rights and interests would be seriously affected if the
“sustainable societal norms” that it is used to “keep changing on the basis of
variable notions based upon newly developed value systems emerging from a
different worldview in a different paradigm”. That sounds rather churlish.
The
Jamiat-e-ulema-e-Hind has a distinguished history of resisting imperialism. If
only it would stop to consider whose company such small-mindedness puts them in
now: The apartheid regime in South Africa that appealed to “historically
accepted societal norms” when upholding the prohibition on interracial
relationships and marriages; the slave owners who drew on morally accepted
social hierarchies to dismiss the abolitionists’ challenge; or those opposed to
the temple entry movement in India who made similar arguments about religious
and cultural mores. As an organisation with a history of resistance to imperialism,
the Jamiat would know that societal norms are often hegemonic and they do, in
fact, keep changing organically, through the efforts of those on the margins,
who wish to feel more included.
The Jamiat
further complains that the “petitioners are seeking to dilute the concept of
marriage, a stable institution, by introducing a free-floating system by
introducing the concept of ‘same-sex marriage’”. This is a familiar complaint
too, mostly made by those challenging various provisions of the sharia with
respect to more informal marriages (muta or temporary marriage, etc) and
unilateral divorces, in favour of a uniform civil code. Usually, those
complainants are “on the other side”, and the Jamiat finds itself defending
personal choices. The Jamiat vociferously, albeit unsuccessfully, defended
“triple talaq”, arguing that marriage in Muslim Personal Law is akin to a
contract, and not a sacrament, so it may be revoked at will. Others too defend
these forms of marriage and divorce on various grounds that include the fact
that evolving jurisprudence recognises (and supports) different forms of living
arrangements and that relationships should not be standardised or overly
regulated by the state. In some cases, the courts also rely on such
jurisprudence ( in recognising live-in, or queer relationships, and other forms
of “modern families”), while in certain others they choose to ignore it ( in
“love jihad” cases, for example).
In this
case, however, the Jamiat seems to be treating religious canon much like the current
government treats the idea of national security. An idea that seeks to govern
everything, and yet there is no engagement with historical contexts, or with
radical and divergent ideas within a religious tradition. Canon (and national
security) is safe only in the hands of the patriarchs. Unsurprisingly then, the
application records:
“That every
organised religion is bound to have certain principles attached. When a person
enters into a religion or declares herself to be a follower of a religion, that
person is expected to have a belief in the foundational norms of such a
religion. A person who fails to follow such norms is considered a sinner in the
religious paradigm. Any person who questions the well-established norms of a
religion or demands the creation of a non-existing space within the religious
norms and its teachings is, in fact, seeking to amend the religious norms.
There cannot be an imposition of a radical non-religious worldview in
established, inseparable and core principles of religions.”
This
suggests that religious norms are hegemonic and universal, with no scope for
alternative meanings. Such positions are completely oblivious to the very rich
history of difference and dissent within Islam, or to the traditions of
liberation theology. It proclaims that norms are what they are, and critical or
alternative engagements are an imposition on the majority. This could have been
the security police speaking to an “anti-national” protestor. The state (like
the Jamiat) thinks little of the imposition of its own unreflective views on
minorities. This is quite ironic with respect to the Jamiat because normally it
does concern itself with minority rights, most specifically in cases where it
is itself, in fact, the minority. It would take more self-awareness than it has
been able to display at present to also accord the same rights to one’s own
minorities.
There is an
imagination of Semitic religions as being rule-bound and unbending. I have
always found it odd that Muslims (when religious) are imagined as being
standardised, mechanical beings, leading their lives as per daily fatwas,
without the eclecticism of Hinduism, for instance, where everyone does as they
please. This negates the reality of Muslim lives that negotiate, in much the
same way as everyone else, with religion and with state, and with all other
modes of power. They make these negotiations through critical engagement with
theology and cultural Islam, but also sometimes by having faith, in knowing
that bona fide actions do not make them outcasts, even when they fall outside
the canonical law. Therefore, it is particularly disappointing to see the
intervention application citing the Quran, and the Prophet (peace be upon him),
in a decontextualised way, to attack notions of love, and in aid of power.
During the
hijab case, some of us made arguments that relied on “freedom to choose”, and
on “personal autonomy”. One particularly crude response to these arguments was:
If you wish to dress in a particular way, do so at home, or at your religious schools,
but not at public schools. We argued then that in order to properly exercise
choice, an individual’s identity and personal autonomy has to be constructed
holistically, and not demarcated into religious and secular spaces. It was not
an instrumental argument: Some of us made it in good faith, actually believing
in those ethics. I do hope that there would be enough young people who would
object and intercede against the Jamiat’s own version of that very crude
argument: If you want to be different, do it in your own non-religious space.
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