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Hindu dharma is implicitly at odds with monotheistic intolerance. What is happening in India is a new historical awakening... Indian intellectuals, who want to be secure in their liberal beliefs, may not understand what is going on. But every other Indian knows precisely what is happening: deep down he knows that a larger response is emerging even if at times this response appears in his eyes to be threatening.

Friday, September 09, 2005

India should adopt a uniform civil code

Author: Ishtiaq Ahmed
Publication: Daily Times
Date: September 6, 2005

Special rights for specific groups in the form of reservations and quotas are justified. These help overcome historical disadvantages and assist powerless groups to join the mainstream. The Dalits are a case in point. However, exempting religious communities from progressive legislation has the exact opposite results

On August 17, 2005, the press reported that the Indian Supreme Court has ordered the Darul-ul-Uloom of Deoband and the All India Muslim Personal Law Board (AIMPLB), the two most important Muslim bodies in India, to reply to a petition filed against them. The petition charges the two organisations with interfering with the country’s legal system and introducing parallel Islamic laws in violation of the Constitution.

Islamic organisations informally arbitrate on many matters in India, but when their rulings glaringly conflict with the law, the judicial system is bound take some action. This petition refers particularly to the alleged rape in June of a Muslim woman, Imrana, mother of five children, by her father-in-law, Ali Muhammad, in Charthawal Tehsil of Muzaffarnagar district, UP.

Initially the local Muslim Panchayat (council of elders) declared that Imrana could not live with her husband any longer, even though he was not willing to separate from her, because his father had sex with her. The Panchayat did not stop at that. It ordered her to start living with the rapist as his wife. This decision was endorsed by a mufti of the prestigious Sunni Muslim seminary of Deoband. The ulema of another important Sunni seminary, Farangi Mahal of Lucknow, followed suit.

However, dissident Muslim voices were raised against this decision. The Ahl-e-Hadith and Shia ulema and many Muslim academics criticised the Deobandi and Farangi Mahal ulema for giving a decision against the alleged victim.

The Hindutva lobby latched on to the fatwa of the ulema, describing it as repressive of women and intensified their campaign for abolishing Muslim personal law. The liberal media produced a spate of articles, sympathising with the woman and calling for reforms within Muslim society. As always, nothing conclusive came out of the hullabaloo. The Union and state governments kept quiet, asserting that the police was investigating the case and that as long as a court did not hear the case and give a judgment, they could express an opinion on the issue.

The controversy surrounding the Imrana rape case reminds me of the theological bickering that attended the Shah Bano case of 1985. Begum Shah Bano, a middle-aged Muslim woman from Madhya Pradesh, was divorced by her husband, MA Khan after 43 years of marriage. She filed a petition in the state High Court that as an Indian citizen she was entitled to financial support from her former husband.

This was rejected by Mr Khan who mobilised the conservative ulema in his favour. Angry voices were raised against the verdict, leading to demonstrations all over India. Their stand was that Islam did not allow alimony beyond the period of iddat (which is about three months to ascertain whether the woman is pregnant or not. If she is, the child is entitled to support from the father). When the Supreme Court eventually ruled conclusively in the wife’s favour, Syed Shahabuddin, the president of the influential All-India Muslim Majlis-e-Mushawarat (Muslim consultative assembly), and other Muslim leaders condemned what they saw as an intrusion by the Indian state into the private domain of Muslim communal life.

On that occasion also many liberal and progressive Muslims, including academics, lawyers, jurists, members of parliament, women activists and political workers mobilised in favour of the Supreme Court judgment. But the conservative forces outnumbered the modernists. Unwilling to antagonise the Muslim vote-bank, Prime Minister Rajiv Gandhi supported the traditional standpoint. The Indian parliament passed a special law, exempting Muslims from obligations to financially support ex-wives.

To understand these issues concerning Indian Muslims we have to look at the country’s history and legal system. Although article 44 of the Indian constitution lays down that a uniform civil code, imposing the same civil rights on all male and female citizens, will be adopted by India, this has never been implemented fully. Nehru initiated a number of reforms, modernising and democratising the Hindu marriage and inheritance laws. These reforms were also applicable to Sikhs, Buddhists and Jains. The reforms forbade Hindu men to take more than one wife, prohibited child-marriages, and gave daughters and sons equal inheritance rights. However, the Muslim community was exempted from these reforms.

An exception was made for the Muslims because the Congress Party had pledged to the ulema of the Jamiat-e-ulema-e-Hind who had supported the party’s freedom struggle that the Indian state would not interfere in Muslim personal law. Instead the party and the state would wait for the Muslims to voluntarily assimilate into mainstream political life and thus participate in the democratic nation-building project.

Successive government continued to make changes in family laws, but it was never made clear if they applied to the Muslims or not. For example it was laid down that if a man divorced his wife and she had no source of income, the divorcing husband was obliged to provide for her in accordance with his income. The Shah Bano case made it clear that the progressive reforms carried out to protect the interests of women did not apply to Muslims.

The exemption which Nehru’s government made for the Muslims was based on good faith that Muslim community leaders would prepare their members to voluntarily join the mainstream. However, the expectations were in vain. Instead the ulema promoted isolationism of Muslims. As a result the Indian Muslim community is poor and lags behind other communities in education and other socio-economic indicators. Muslim women in particular are the most vulnerable because traditional Islamic law on marriage, divorce and inheritance is outmoded and inadequate and does not protect their rights.

Special rights for specific groups in the form of reservations and quotas are justified. These help overcome historical disadvantages and assist powerless groups to join the mainstream. The Dalits are a case in point. However, exempting religious communities from progressive legislation has the exact opposite results. It is high time that India adopts a uniform, common civil code which confers equal rights on all men and women.

The author is an associate professor of political science at Stockholm University. He is the author of two books. His email address is Ishtiaq.Ahmed@statsvet.su.se

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