India’s Civil Code Tinderbox
TRANSCEND MEMBERS, 23 Oct 2017
“The increasing tendency towards seeing people in terms of one dominant ‘identity’ (‘this is your duty as an American’, ‘you must commit these acts as a Muslim’, or ‘as a Chinese you should give priority to this national engagement’) is not only an imposition of an external and arbitrary priority, but also the denial of an important liberty of a person who can decide on their respective loyalties to different groups (to all of which he or she belongs)”
― Amartya Sen, The Idea of Justice
20 Oct 2017 – India follows a system of legal pluralism that allows different religious communities to be governed by their own codes of personal law. This has been seen as a way of protecting distinct communal identities and safeguarding the right of citizens to practice their faith, as enshrined in the constitution. The Constitution grants equal protection under law to all citizens. But Muslims are governed by the personal law, which came into force in 1937.
However the authors of the constitution wanted a common set of family laws. Article 44 of the Directive Principles of state policy in the Indian Constitution mandates that “the state shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India.” On account of the intrepid opposition of Muslim members they dropped the idea but they did not seal the issue; they left it to the wisdom of the coming generations explore the idea of a generic set of personal laws – a uniform civil code (UCC) applicable to all Indians. The authors had realized that Muslims ware intrepid on retaining their personal laws and time was not ripe for fruition of common civil code.
The civil code tinderbox is stoked every few years by the both political right and several others who keep stirring the cauldron and have been advocating a Uniform Civil Code since the framing of the Indian constitution. The issue continues to generate wattage to seed the unceasing storms, the continual quarrels and the dialectics of history.
It was in the year 2014, when the BJP, in its election manifesto, included the introduction of UCC as one of its agendas and it was in 2016 that the government asked the law commission to submit a report on the implementation of UCC. .
The chairman of the law commission, Justice (retd) BS Chauhan, invited people from various religious groups to submit their responses and comments
The most recent draft for a UCC – submitted to the law commission – is called “Progressive Uniform Civil Code”. The preamble to the draft, prepared by a group of citizens from various sections of the society, such as lawyers, journalists and activists, states that it is in line with the globally accepted values of human rights.
The draft’s most striking feature is that it tries to propose a set of laws that would have equal applicability irrespective of gender (including the third gender), sexuality and religious beliefs (including atheists and agnostics). This draft proposes that marriage – besides the conventional definition of a union between man and woman – should also mean a legal union between two men, two women, two tr ansgenders and between a transgender and a man or a woman.
Most people rooting for enactment of UCC have a misimpression that only Muslims and Christians follow their customary or religiously ordained laws. Most Hindus continue to follow their customary practices prevalent among their respective castes, sects and communities, despite countless reforms introduced since the 1950s.
The government had been broaching the reforms gingerly till now. But with the secular agenda having undergone a seismic shift and the exclusivist machine turning into a high voltage contraption, Muslims are now in a bind. The debate has now conflagrated into a political tempest and the state, buoyed by its growing ascendancy in the political echelons, is now firmly fixated on its reforms in civil laws of religious denominations. The reforms are being packaged in welfarist and euphemistic tones apparently projecting them as a genuine concern for welfare of Muslim women. The centraising fetish is that this religious reform will pave the way for redemption of all problems. We are on a hazardous rout because e we are writing the prescription without doing the diagnosis.
Far from being a rigid set of injunctions or rules set in stone , Islamic law or shar’ia—which literally means the “way” or “path- is an immense amalgam of texts and interpretations that has evolved along parallel paths within five major and numerous minor schools of law. Shar’ia is a religious code for Muslims that covers all aspects of their life, including daily routines, and religious and familial obligations, marital affairs such as marriage and divorce and financial dealings. It was developed by religious scholars (ulema) after the death of the Prophet Muhammad. Meant to provide moral and legal guidance to Muslims, Sha’ria is based on the Qur’an and the sunnah-the the sayings, practices, and teachings of the Prophet Muhammad.
It is derived primarily from the Qur’an and the sunnah. The Qur’an has about 80 verses concerning legal issues, many of which refer to the role of women in society and to important family issues, such as marriage, divorce, and inheritance Precedents and analogy applied by Muslim scholars are used to address new issues.
To consolidate their control, the Sunni ulema crystallized their legal judgments into various schools of Islamic jurisprudence: the Sunni schools, Hanbali, Maliki, Ash-Shafe’i’i, Hanafi; and the Shiite school, Ja’fari. Named after the scholars that inspired them, they differ in the weight each applies to the sources from which shari’a is derived, namely the Qur’an, hadith, Islamic scholars, and consensus of the community. But in the absence of any universally accepted pulpit and with political currents and social winds constantly changing, legal opinions on most matters have tended to be fluid rather than fixed.
Where once shar’ia was an organic and evolving body of law, emphasizing mercy, tolerance and inclusiveness, it is now characterized as an instrument of control by post-colonial Muslim rulers searching for identity. If Prophet Muhammad’s life was revolutionary, its aftermath has seen a monological recital of hadiths and inflexible analyses of Qur’anic verses, where historical context is taken up or ignored to suit the interpreter. Memories of early Islam have hardened into dogma, and many scholars have taken the hadiths as tablets of stone, superimposing it on the Qur’an.
A survey of 4,500 Muslim women by the Bharatiya Muslim Mahila Andolan (Muslim Women’s Welfare Movement or BMMA) earlier last year showed that 91% of them were against polygamy. This was reported with great excitement in the media though actually it should not have surprised us, given that the data shows that over 90% of Muslims are in monogamous marriages. Incidentally, a statement by the same group much later that “Muslim women want codification of Muslim family law and not uniform civil code” was reported with less enthusiasm. BMMA is an Indian Islamic feminist organisation is a coalition of over 70,000 women from all over the country, from every kind of social class.
Gender-just reforms are needed to help in correcting gender biases but they should be well intentioned .The reform backers believe that the state should undertake them, to use the words of the great parliamentarian Edmunde Burke, with “the cold neutrality of an impartial judge.” And to remember his words again:” No man can mortgage his injustice as a pawn for his fidelity.” The state cannot expect Muslims to jettison the core tenets of their faith.
For the Muslims, changes to Islamic law have to be made within the boundaries of the Quran’s teachings if they are to be legitimate. Without the co-operation of the religious scholars, who bestow this legitimacy, the masses will not embrace change. The clerics are critical in the whole equation. The predominant hardliners among their ranks are locked in a virtual and civil war with reformers.
Islam may not always be the sole factor in the repression of women. Local, social, political, economic and educational forces as well as the prevalence of pre-Islamic customs must also be taken into consideration. In some societies they are a pervasive influence. But in many cases proper application of Islamic law remains a major obstacle to the evolution of the position of women.
Muslims are apprehensive of the state’s obsession with trying to “create” a specific type of Islam, rather than allowing them the space to simply live Islam – with all its beliefs, traditions, cultures, references and various practices. They see the civil code as a seductive wrapped gender welfare intervention that can be a powerful salient, paving the way for further intrusion into their religious and cultural values. This slippery slope is not lost on Muslims who see it slouching toward a pernicious future for their faith.
The depressing social conditions of Muslim women is a phenomenon prevalent mostly among the underprivileged. In economically improved strata of Muslims, the sort of oppressive practices which are being talked about are a rarity. Poverty is the root cause of obscurantism in Muslim families. Economic empowerment is one tide that lifts all the boats. It enables you to provide better education, better housing and better healthcare. It is a virtual cycle that transforms your world view.
The biggest problems facing Muslim women today are economic. They are not likely to be solved with civil rights remedies, but they could be relieved with public and private action to encourage economic redevelopment. More than religious redemption they need economic redemption. What is of utmost criticality is the need for educational and financial empowerment of these women. Economic redemption is more important for Muslim society than religious redemption.
A common civil code is being oversold as a silver bullet for gender justice which it is not. It is certainly not going to produce the utopian conditions that are being promised s What is urgently required is draining the swamps of Muslim poverty that are breeding unrest and frustration leading to both physical and mental violence. The opponents argue that those averse to customary law have several options. There are already a number of laws like the Indian Marriage Act, Indian Divorce Act, Indian Succession Act, and Indian Wards & Guardianship Act which provide a secular alternative for those who want it. This law allows Indians to marry and be governed by secular civil laws, irrespective of the faith followed by either party. Therefore, there is no need to impose on everyone secular civil code.
Muslim women leaders are convinced that Islam, at its core, is progressive for women and supports equal opportunities for men and women alike. They would not like to wager for a law that makes them jettison their Islamic beliefs. Deeply religious, profoundly determined and modern in every way, they are challenging not only the unjust restrictions placed on them by their own societies, but also the tired stereotypes and empty generalizations placed on them by the West. They are arguing for women’s rights within an Islamic discourse.
These women are combing through centuries of Islamic jurisprudence to cull out and highlight the more progressive aspects of their religion. They are seeking accommodation between a modern role for women and the Islamic values that more than a billion people in the world follow. Some of the leading proponents are actually men—distinguished scholars who contend that Islam was radically egalitarian for its time and remains so in many of its texts.
There is a long list of hadiths (Prophet’s sayings) and Qur’anic verses to support women’s rights: the right to education; the right to work and their right to keep the money they earn. It is much easier for the media to reduce the complex debate on Uniform civil Code to a series of clichés, slogans and sound bites, rather than examining root causes.
There are numerous examples where personal laws and secular laws coexist .in fact, the deliberations of India’s Constituent Assembly which framed the Constitution clearly show that Uniform Civil Code was not the ultimate mandate.
Sir B N Rau, the constitutional advisor to the Constituent Assembly, stated that the Directive Principles are intended as ‘moral precepts for the authorities of the state. They have at least an educative value.’ The great jurist Sir Ivor Jennings thought they were only ‘pious aspirations’.
The architect and key constitution maker Dr Ambedkar was very emphatic:
“There is no obligation upon the State to do away with personal laws. It is only giving a power. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.”
Muslims are well integrated in Sri Lanka where they have their own personal law which has been lauded by jurists. Quebec has its own legal system. Singapore and Israel accept Muslim personal law. Aharon Layish wrote a paper in July 1973 on “The Sharia in Israel”. Israel’s Shar’ia court system is more efficient than the civil law alternative while it is also evolving in conjunction with the demands of an ‘open, modern and developed’ society, Israel’s religious courts feature as part of the judicial system with applicants having the option of choosing whether to lodge cases in the religious or civil courts. Sharia courts in Israel are informed by the Hanafi legal school of Sunni jurisprudence, while laws in place since the days of the Ottoman Empire also remained in force.
Article 27 of the International Covenant on Civil and Political Rights, to which India is party, concerns minority rights. Francisco Caportori’s report on its implementation (1977) says: “In Africa and Asia, particularly in the countries in which customary law is an integral part of the general legal system, various ethnic groups are still governed in matters of personal status and other fields of private law by their own rules. There cannot be any doubt that an effective and full protection of the culture of minorities would require the preservation of their customs and legal traditions, which form an integral part of their way of life.”
Sir Norman Anderson, an authority on Hindu and Muslim law, wrote, “It is the family law that has always represented the very heart of the Shar’iah for it is the part of the law that is regarded by Muslims as entering into the very warp and woof of their religion.”
Reform is an unruly horse that can go berserk unless it is properly saddled. The modern trend is for acceptance of diversity.
Muslims in India and the government can take the cue from the Muslim Arbitration Tribunal operating in England and Wales. The Muslim Arbitration Tribunal was established in 2007 to provide a viable alternative for the Muslim community seeking to resolve disputes in accordance with Islamic Law. Under the remit of the Arbitration Act 1996, MAT acts as an effective, efficient and unique Alternate Dispute Resolution organization which deals with Islamic Law within the context of the English Legal System. MAT has an expert panel of legal professionals (including qualified solicitors, barristers and judges) and Islamic scholars well versed in both English and Islamic law. The tribunal is unlike a shari’ah court whose members have little familiarity with the secular laws and little or zero exposure to the judicial system .Moreover, it operates in self insulated systems whose edicts have no legal sanctity and cannot be enforced.
The tribunal must have at least two members, one a scholar of Islamic sacred law and the other a solicitor or barrister registered to practice in England and Wales. At present it has four chapters apart from it. There are an estimated 85 shar’ia councils and tribunals in the UK. Who t do not operate under the Arbitration Act and their decisions are not legally enforceable by the courts, but are nevertheless quite effective because disputing parties are usually amenable to the mediation and conciliation efforts of the councils which have members who command respect in the community. Their defenders say participation is voluntary and they are merely a means to resolve disputes outside the courts.
MAT operates within the legal framework of England and Wales thereby ensuring that any decision reached by MAT can be enforced through the secular legal system. Operating within the legal framework of England and Wales does not prevent MAT from ensuring that all decisions reached are in accordance with one of the recognized Schools of Islamic Law.
It is equally important for the Muslim theocracy to understand their proper role: Call it religious policing, cultural policing, guardian policing, family policing and community policing. The many names share one vision: humane, compassionate, culturally refined system with a mind-set of respect and a demonstrable concern for improving the wellbeing of women particularly when they have been assigned a very exalted position both by the Qur’an and Its Messenger.
The community’s social codes do not truly guarantee women a secure place to them as citizens equal to men; such attitudes are preserved by patriarchal and cultural traditions, as well as the continued twisting of Islamic injunctions to suit the needs of misogynists. The reality of Muslim women continues to confound easy categorization. They have been going to school and university, holding down jobs and earning money for several generations now. Yet they still live with widespread gender-based biases.
In The Reconstruction of Religious Thought in Islam, the legendary philosopher poet Sir Muhammad Iqbal wrote, “In view of the intense conservatism of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the people are moving, the law remains stationary.”
To those opposed to reformist ideals, let us remind them of legendary poet Iqbal’s assertion: “[t]he teaching of the Qur’an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.”
Treating women with the inherent dignity that they were created with, ensuring that they are given equitable opportunities to succeed is necessary to uphold the Qur’anic vision, “O you who have attained to faith! Be ever steadfast in upholding justice.” (Q4:135)
The path ahead lies in importing some of the progressive reforms so that our personal laws regain vibrancy and are able to effectively respond to the new realities. The Indian Muslim leadership should allow the winds of reforms in Islamosphere to blow in.
Confining itself to sterile thinking will only strengthen the case of several eminent scholars including international Muslim feminists like Mernissi who strongly feel that the necessary emancipation and equality for the subaltern Indian Muslim female will not be possible without bringing her under the protection of a Uniform Civil Code.
The whole conflict is on account of the same naïve logic: cherry picking of facts -a tendency to fasten onto evidence consistent with your worldview and ignore or downplay contrary evidence. The adherents of a religion focus on those portions of scriptures that confirm their attitudes and ignore those that don’t. And they latch that tunnel vision onto their own scripture; if there is hatred in their hearts, they’ll carry it onto the hateful parts of scripture, but if there’s not, they won’t. Similarly, those intent on doing mischief with the scriptures cull selective passages palatable to their viewpoint and quote them without their contextual relevance, thereby distorting the actual truth.
For now the purists – both the conservatives and the more aggressive radicals are bristling at the prospect of the courts intervening in what they think is their exclusive preserve and, are saying the community itself will reform unjust practices. It is very clear, after the recent convulsions the community’ has grown wiser.
Both the traditionalists and reformists should understand about the deep wisdom of the modern conflict management guru, Stephen Covey: “Seek first to understand, then to be understood.” Gandhi’s mantra holds good for every problem on earth: “I hold that it is the duty of every cultured man or woman to read sympathetically the scriptures of the world. If we are to respect others’ religions as we would have them to respect our own, a friendly study of the
world’s religions is a sacred duty.”
India has been a flag bearer of pluralism and has always held the candle of tolerance; mutual respect and peaceful coexistence alienating one fifth of its population will not help for the country and will be against the spirit of its centuries’ old and hallowed ethos.
We can solve the toughest problems if we imbibe the true spirit of the nation’s oft repeated mantra: “sabka saath, sabka vikas” (partnership of all, development for all).
The well known political historian Sunil Khilnani has a very poignant paragraph in his famous book The Idea of India, which is very relevant in the present situation:
“If one looks beneath the messy confusion and black arts of India’s politics, one sees in its democratic experience evidence of something that James Madison and his Federalist colleagues well understood more than two hundred years ago. Large republics with diverse and conflicting interests can be a better home for liberty, a safer haven against tyranny, than homogeneous and exclusive ones. Within them, factions can check one another, moderating ideological fervour and softening power.”
Human desire in its bare essence is animalistic and somewhat selfish. It has been the evolution of teachings of faith that has kept in check much of our primitive needs for constant self-gratification. Scriptures are meant for the good of human societies. They rest on the strong legs of justice, kindness and wisdom. There will always be animal spirits. Humans have both the angelic and satanic traits. We have the means of taming them – laws for punishing them, norms for shaming them, and cure for healing them. Let us not in our imperfect understanding or prejudice throw the baby out with the bathwater.
Moin Qazi, PhD Economics, PhD English, is a member of the TRANSCEND Network for Peace Development Environment and author of the bestselling book, Village Diary of a Heretic Banker. He has worked in the development finance sector for almost four decades in India and can be reached at firstname.lastname@example.org.
This article originally appeared on Transcend Media Service (TMS) on 23 Oct 2017.
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