India's Struggle for a Uniform Civil code

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India's Struggle for a Uniform Civil code

By Vrin Parker

Unlike any other democracy in the world, India has a different set of

laws for Muslims above and beyond the rights allowed it's other

citizens. The only country that pays for Haj pilgrimages to Mecca,

India allows complete financial and educational freedom to Muslim and

Christian organizations.

 

On the other hand, India's government demands complete transparency

from Hindu/Vedic organizations. It controls all ancient Hindu temples

and approriates any and all donations and income recieved. Though

these funds are openly given by various citizens to individual

temples, the government takes these funds. The funds are used for

programs completely unrelated to any temple, what to speak of the

temple the donation was intended for. In other words, the Hindu

citizen's human right to use his/her hard earned money for religious

peurposes is denied. Rather the funds are misappropriated by a

government dedicated to an anti-hindu form of secularism. Thus the

Hindu citizen's donation is used for projects completely unrelated to

the intended recipient. In many cases, the monies go to programs

inimical to Hinduism, such as Christian missionary schools and

Islamic Madrasses, where an avowed anti-Hindu curriculum is taught.

Muslim and Christian educational facilities receive generous

government grants and complete academic freedom. However, Hindu/Vedic

schools are forced to undergo extreme and punishing beaurocratic red-

tape and investigative procedures.

 

Under India's current legal code, Muslim men are allowed to be

completely negligent and behave within a medieval code of conduct.In

this situation, Muslim women and children are denied the basic

protections and human rights. Women can be divorced on the whim of

the husband. Children only need to be supported for a short 3 month

period. Suspicions of infidelity on the part of the women are dealt

with outside of the Indian civil code. Muslim men are allowed to live

under Islamic holy law, Sharia, above and beyond the laws of India as

a nation.

 

Attempts by India's BJP led government to create a common civil code

have failed so far. At one point, the US Clinton Administration

threatened India with punitive sanctions if any more attempts were

made to create an equal set of laws for all Indians. The BJP's

attempts in this regard have also been used as an example of Hindu

fanatical attacks on Muslims. Gullible and uninformed Westeners and

others have parroted these allegations and have thus contributed to

the oppression of India's Muslim women and Children. Its ironic that

the Hindus are at the forefront of human rights for Muslims, yet are

being demonized for their attempts. Below is an article which

clarifies the issue.

Vrin Parker

 

 

Title: Ghetto blaster

Author: Swapan Dasgupta

Publication: Hindustan Times

August 4

 

 

If the legal debate over the non-implementation of a

uniform

civil code is instructive, far more revealing is what the controversy

tells

us of the state of Indian politics. In particular, it exposes the

fragility

of what constitutes the liberal-secularist consensus and its craven

willingness to play courtier to the most regressive forces in public

life.

Additionally, it is another case study of how a determined minority

can

successfully impose its veto on India's evolution as a just,

equitable and

modern society.

 

 

The manner in which the skirmishes over the uniform civil

code

have played out since the Shah Bano judgment is well-known. First, an

exasperated Supreme Court reminds the political class of the

unfulfilled

Article 44 in cases where iniquitous personal laws are used as cover

for

blatantly unjust practices. Second, the BJP - the only major party to

be

officially committed to a uniform civil code - cites the court

judgment to

press a political point. This in turn propels the 'secular forces' to

respond that the time is inopportune and that the demand for change

must

come from 'within' the religious communities.

 

 

Finally, the secularists are complemented by theological

bodies

such as the Muslim Personal Law Board that asserts the separate

personal

laws are a badge of religious identity and cannot be compromised. Syed

Shahabuddin, for example, was honest enough to write in 2002 that

Muslim

Indians will "not accept a trade-off between identity and

development".

 

 

The latest debate - which followed a Supreme Court

judgment on

a

matter of succession involving Christians - has witnessed a new twist

to

the

tale. The theological bodies have, by and large, abstained from what

appears

to be a one-sided battle against Chief Justice V.N. Khare's espousal

of

'national integration'. Leading the charge against a uniform civil

code

are

stalwarts of the liberal-secularist establishment. Today, they

constitute

the new praetorian guard of the religious orthodoxy and separatists.

 

 

The new arguments proffered against any attempt to

legislate a

uniform civil code combine the worst facets of political correctness

and

electoral expediency. Packaged in the language of trendy sociology,

they

prescribe the institutionalisation of a minority political veto to

derail

the emergence of a composite, modern Indian identity. Like the

Islamist

terrorists who found unlikely allies in the peaceniks in the western

democracies, the backward-looking custodians of minority ghettos have

been

conferred respectability by the liberal-secularist establishment.

Bodies

like the Muslim Personal Law Board don't need to react; their job is

being

more effectively done by those who flaunt the tag of progressive,

non-sectarian politics.

 

 

To begin with, the goal of national integration that

motivated

the stalwarts of the Constituent Assembly into wishing a uniform civil

code

has been peremptorily contested. Under the cover of promoting

diversity,

the

crucial distinction between rituals and rights has been submerged.

Uniformity and, by implication, equality in the eyes of law has been

sought

to be equated with common cultural practices. This is a specious and

alarmist argument and about as ridiculous as the belief that

membership of

the WTO will make the consumption of hamburgers obligatory for

Indians.

 

 

A uniform civil code will not undermine a marriage

solemnised

in

a mosque or before a maulvi. It will merely ensure that any possible

separation and future inheritance will be governed by the same laws as

applicable to those who got married in a temple or - as a latest fad

suggests - underwater. In short, a uniform civil code will ensure that

laws

are secularised and made pan-Indian.

 

 

Secondly, a uniform civil code has been opposed on the

ground

that the timing is inopportune. It has been held, particularly by the

Left,

that in an environment of Hindu-Muslim polarisation on issues such as

Ayodhya and the Gujarat riots, the minorities will be loath to accept

any

initiative of a BJP-led government in good faith. The implication is

that

the principle of justice for all has to await a day minorities feel

secure

and get a government they desire, not one resulting from a collective

choice

of all communities.

 

 

This is a dangerous argument and suggests a total

contempt for

the ground rules of democracy. Imagine the outcry if some saffron-

robed

sadhu declared his unwillingness to obey a law in West Bengal because

it

was

enacted by a party of unbelievers. Yet, this brazen declaration of

apartheid - in effect, it questions the legitimacy of a

democratically-elected government - has been meekly stomached. It is

this

pusillanimity of India's liberal-secularist elite that emboldened the

Muslim

League's G.M. Banatwala to move a private member's bill in the Lok

Sabha

on

July 25 seeking separate electorates for minorities. Though visibly

embarrassed, the 'secular parties' shied away from attacking the

divisive

proposal frontally.

 

 

Finally, it has been suggested that the issue is

essentially

one

of ensuring gender justice, a problem that affects all communities in

India.

Therefore, rather than attempt something that fails to pass political

muster, it would be prudent to focus energies on securing women's

rights

in

all the separate personal laws.

 

 

On the face of it, this seems a compelling argument, one

which

addresses the central issue of equity and justice without getting

embroiled

in the sloganeering that accompanies a uniform code proposal. Taking

heart

from recent court judgments, legal experts believe that by a process

of

creeping encroachment the provisions of Articles 13, 14 and 21 can be

used

to mitigate some of the more antediluvian features of the different

personal

laws.

 

 

The problem with this well-meaning gradualist approach is

that

it skirts the key reason why India needs a uniform civil code. It is

indeed

possible that judicial intervention will ensure more equitable

treatment

for

the vast majority of Indian women who happen to come under the sway of

Hindu, Christian and Parsi personal laws. Despite odd imperfections -

and

an

unwarranted tax haven provided by the Hindu Undivided Family cover -

these

laws correspond to modern norms and prevailing standards of ethics.

The

Christian and Parsi personal laws have only recently been updated

following

a wide process of consultation involving both clergy and laity.

 

 

Tragically, no such changes have taken place in Muslim

personal

laws. Ever since the Muslim League negotiated the 1937 Shariat Act to

forge

a political community to act as a counterweight to the Congress,

Muslim

personal laws have remained by and large frozen in time. Even the

codification that was promised during the passage of Rajiv Gandhi's

Muslim

Women's Bill of 1986 has never been seriously attempted. Nor for that

matter

has there been any sustained initiative by India's lawmakers to

address

the

disabilities of Muslim women that flow from the provisions of poly-

gamy,

triple talaq and maintenance.

 

 

The Waqf Boards which have responsibility for destitute

Muslim

women beyond the 100-day iddat period have, for example, never

bothered to

address the problem, despite an abundance of resources. Instead, a

self-perpetuating Muslim Personal Law Board (created in 1972 by the

Deobandi

ulema) has used the regressive laws to foster backwardness and

emotional

separatism.

 

 

The 'gender issue' in abstraction is a red herring in the

uniform civil code debate. At the core is a problem of Muslims,

particularly

Muslim women. The Muslim personal laws that operate in India violate

the

tenets of human rights and justice. They are not laws that impact on

the

ritual practices and core beliefs of the faith - many Muslim countries

have

enacted progressive legislation which hardly makes their citizens

guilty

of

apostasy. This blot on Indian jurisprudence has to be removed.

 

 

Yet, the political numbers game argues against the

possibility

of a uniform code being enacted in the short-term. Is that an excuse

for

doing nothing and allowing a caricature of Muslim intransigence

becoming

bazaar wisdom? It's time the BJP recognises that the road to the

fulfilment

of Article 44 will be marked by temporary halts. The first objective

of

the

government should be giving the hapless Muslim women immediate relief.

That

involves amending the existing gamut of personal laws - including

outlawing

polygamy and peremptory divorce - to bring them on par with the

Special

Marriages Act.

 

 

The problem of separateness will not be addressed but at

least

a

measure of equality and justice will have been guaranteed. Such

legislation

will be in keeping with the spirit, if not the letter, of the

Constitution's

Directive Principles.

 

 

The liberal-secularist classes have spouted progressive

rhetoric, even as they play retainer to those who ensure bloc votes

during

elections. It is time their bluff was called.