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l August 2003 l

The Kashmir Bachao Andolan Publication

l Vol 2, No 4 l


Some uncivil home truths

T R Jawahar

'The State shall endeavour to secure the citizens a Uniform Civil Code throughout the territory of India' Article 44 of Indian Constitution.


'When social good so demanded, the State has not only the right to legislate, but a duty to do so... Muslim personal law was sacrosanct only to the extent it pertained to a man's manner of worship, his faith, his religious tenets ...But in the matter of other social laws, there is nothing sacrosanct about Muslim personal law. My view is when you have a secular State, no social legislation must be confined to a section of the people.' ...'In secular India, everyone should have equal rights and polygamy should be abolished' Mohammad Carimchand Chagla, eminent jurist.


'One law of marriage for all would be an important step towards national integration' Justice Y.V.Chandrachud


'Muslims in non-Muslim majority areas always believe that they are a state within a state and a society within a society. Islamic personal law runs contrary to the modern notions of human rights. Its anomalies are obvious to anyone except Muslim males' Hamid Dalwai in his book Muslim Politics In India.


'The Muslim Personal Law is a bunch of interpretations and traditions compiled by a group of Maulawis at the instance of Lord Macaulay' Rafique Zakaria in his book The Widening Divide.


'...Muslim women are entitled to a fair treatment along with their Hindu and Christian sisters. This necessarily implies that in regard to matrimonial and inheritance laws there should be a certain measure of uniformity and equality. This can be achieved only through a Uniform Civil Code' V.R.Krishna Iyer 

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One can go on and on and probably wind up with the most recent reminder, the third in fifteen years, by the Supreme Court to the powers that be to give effect to the constitutional sanction for Uniform Civil Code under the Article 44. Such regular reminders have become necessary because all rulers of post- independence India have perpetually been under the influence of a potent dope called 'Secular Ecstasy', that neutralises one's concern for the nation's integrity and its majority population even while enhancing euphoric indulgence towards the minorities at the expense of the former! Sane voices and even 'loud legal notices' as above invariably fall on deaf ears guided by mute minds.


There are of course other voices that the spineless rulers of India have always heard with alarming clarity and heeded with god-speed. These voices that had successfully stalled the implementation of the Uniform Civil Code all these years are back now, at their vintage best, unchanged by the passage of time or advance of civilisation. Here goes the All India Muslim Personal Law Board, which claims to be the sole voice of Muslims and the 'final adjudicator' of all laws governing them: ' ...nothing should be imposed in any matter concerning religion'. That's it! And the spokesperson of the Delhi Catholic Archdiocese has warned that 'the religious sentiments of any faith are not hurt'. And we all know how strong and sacrosanct their religious sentiments are to them no matter even if they infringe on the rights of the larger mass of humanity outside their faith or impinge on tenets of equity and natural justice. Rest assured, only these voices will again rise above the din and prevail! Article 44s and SC wake-up calls can wait.


The Muslim Personal Law (Shariat) Application Act 1937 was passed by the British government to ensure that the Muslims were insulated from common law and that only their personal law would be applicable to them. Every religion had its personal laws which typically dealt with matters concerning marriage, divorce, inheritance, succession, adoption and such other societal matters. So there were also Hindu personal laws based on its Dharma shastras which were also converted into enactments during the British period at various times. The Hindu personal laws varied from one area to another and also depended on the differing religious practices of the various Hindu sects. But the post-independent secular era brought with it several double-standards that now form the core of the current stark social imbalance between different faiths warranting the debate on Uniform Civil Code. Though the framers of the Indian constitution were granted the powers to amend any law that was 'in force' at the time of Independence, it was only the personal laws of the Hindus that were subjected to such scrutiny and then altered. The Hindu code Bill brought by Jawaharlal Nehru in mid 1950s, sought to codify and unify the various Hindu social laws under one nomenclature. This was opposed by the Hindus generally and the President Rajendra Prasad declined to give sanction to that Bill. So, the very secular rulers promptly split the Bills (Hindu marriages Act, Hindu inheritance Act, Hindu Divorce Act et al) which were all duly passed. But the Muslim Personal law remained untouched barring a few changes in deference to evolving legal grammar. The pumpkin was quietly buried under secular rice!


Minority champions have always proclaimed that a uniform civil code would be acceptable only if the move came from them. That is they hold the veto, no matter if the Constitution itself ordains it. But no such concession was bestowed on the hapless Hindus of the Nehruvian era; no referendum as is demanded now was taken about the Hindu views. The move did not come from the Hindus but was thrust from above. Yet the mute majority of this land had swallowed it all in the interest of social and communal harmony and even more specifically, out of their genetically ingrained spontaneous respect for rule of law. Now, to contrast this with the intransigence of the minority champions and their secular backers will only add to the pain. But that is nothing when compared to the social inequities that the hands-off-personal-law-policy has set off.


For one, while the Hindu Bigamy act ensures that a Hindu has only one wife, no such restrictions bother the Muslims, who can have upto four wives. More wives automatically mean more children. And combined with their religious distaste for family planning, which the Hindus religiously follow in due deference to the government rules, one can guesstimate the havoc that is going to be caused to the demography of the country. But the secular Hindus should not be concerned about this. Not that they are awaiting an amendment that would allow them too to gather spouses by the dozens and swell their flock but it would indeed be a tragic irony if they were to pay for their social evolution, while those who wantonly court backwardness move forward by way of political and every other kind of domination. Similar perversions pervade other aspects like inheritance, maintenance, succession, probation of wills etc, etc and in every case, the Muslims are at a significant social advantage over their Hindu 'fellow citizens', courtesy their Personal Laws. The list is inexhaustible and warrants a great excursion into the legal bylanes.


But forget the Hindu angle. What about modern concepts of social justice and equality before law? Even in totalitarian Muslim regimes around the world the personal laws are being amended in tune with modern times, but secular India remains cursed to linger in medieval mindset of the Aurangazeb era. Not that there are no pressures on them, from outside and within, but the Muslim clergy had always succeeded in resisting changes under the pretext that it would mean Hinduisation of Muslims and infringement of their religious rights. But does not succumbing to such threats and intimidations reflect on the capacity of a 'secular' government to render justice to 'secular' citizens of a 'secular' country with a 'secular' Constitution?


Indeed, it is secularism at its uncivil worst!


Author is Chief Editor, News Today, Chennai

Copyright 2002-2003 Shyam Lal Watt Foundation

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