A Legitimating Public Vocabulary for Religious Reason: Two Moments of Muslim Law-Making in Colonial and Post-colonial India

The study of religious morality and reason within the framework of liberal democratic regimes in political theory has largely been framed in terms of multicultural accommodation and toleration. The liberal-communitarian debate has been premised on an ostensible conflict between individual and community rights. The literature on multi-culturalism has also been framed in terms of protecting a rarefied conception of community. This paper attempts to complicate the notion of an apparent conflict between liberal rights and communal conceptions of identity by examining two moments of law making in India. By conducting a comparative discourse analysis of the legitimating vocabulary used by legislators in 1936 – 39 and 1985 – 1986, two moments of enactment of community specific laws for Muslim women in colonial and post-colonial India, this paper attempts to unpack an imbrication of a religious morality and reason in liberal rights discourses. The paper argues that the structuration of a public sphere of religious reason can assume a morphology that marks itself out clearly from a logic of ‘minority accommodation’. This is revealed in the enunciation of a religious morality as a precondition for attaining a rights-bearing political subjectivity rather than a mere attribute that needs to be accommodated by secular reason. Using a case of state intervention by both the colonial and post-colonial state to define and regulate religion in a multicultural, multi-religious polity in the Indian case, I argue for a more robust framing of the conceptual architecture of religious reason and its intersection with normative frames of liberal reason. The paper unpacks the legitimating vocabulary that informed the enactment of the Dissolution of Muslim Marriages Act 1939 and the Muslim Shariat Application Act 1937 in colonial India as well as the vocabulary of community protectionism exemplified in the enactment of the Muslim Women’s Protection of Rights to Divorce Act 1986 in a comparative frame. While both of these moments denote attempts to formulate a vision of rights for Muslim women, there are significant differences in the legitimating discourse used by legislators in each case. While the colonial legislators envisage rights rewarded by Islam as a precondition for equality for women, the post-colonial moment witnesses a rhetoric of cultural protectionism whereby women are merely reduced to bearers of community identity. Using a comparative frame of the public sphere of law-making in colonial and post-colonial India, I attempt to trace the epistemic violence enacted in collapsing the categories of religion and community to posit a discourse of ‘minority’ community in conceptualising a vocabulary for Muslim women’s rights in post-colonial India.