For the umpteenth time, the judiciary has spoken out against the unconstitutional misogyny masquerading as religious freedom.
In an observation slamming the Islamic practice of triple talaq, the Allahabad High Court called it “cruel”, “most demeaning” and something that “impedes India from becoming a nation.”
Triple talaq is currently under the judicial scanner following the nationwide campaign calling for its ban, launched by Zakia Soman – head of the BMMA – an organisation fighting for Muslim women’s constitutional rights. The Union government has also come out in favour of Zakia’s stance.
In India, all religions have separate laws of their own that govern civil matters such as marriage, divorce and inheritance. While the latest judicial outburst is against Islam, patriarchal laws are, to varying extents, a staple of every religious law in India.
Attempts at establishing a Uniform Civil Code (UCC) – one of the Directive Principles enshrined in the Constitution – have been scuttled under the garb of protecting religious freedom.
The biggest success so far in civilising religious laws has been the passing of the Hindu Code Bill by Nehru, in the face of strident opposition by some of the most prominent Hindu leaders of the day.
Before the Hindu Code Bill, inter-caste and inter-religious marriages were banned, polygamy was allowed, Hindu widows couldn’t remarry, inheritance by females was unknown, and the right to divorce was reserved only for Hindu men.
After the humanisation of Hindu laws to a degree, similar success was achieved in reforming Christian laws at different stages. In addition, the Special Marriage Act was passed in 1954, which allows inter-religious marriages and doesn’t recognise any religion at all – ideal for a secular democracy.
Countering Reasons Behind Muslim Opposition
It is no secret that while all religions oppose the UCC to an extent, it is the Muslims – India’s second-largest majority – who’ve been the biggest reason behind stonewalling what would be one of the greatest reforms post-independence.
While Nehru rightly stood up to Hindu opposition to codification of laws, his special benevolence towards Muslims meant there was no reform of Muslim Personal Law (MPL).
The Muslim community’s biggest grouse against the UCC is that it will violate the religious freedom granted to them by the Constitution under Article 25. This argument about constitutionally-protected religious freedom is disingenuous for two reasons.
No One Law in Islam
The first and foremost reason is that there is no one law in Islam.
Different Muslim communities follow different laws based on their interpretation (fiqh) of Sharia. For this reason, regressive practices such as polygamy – which are barely permissible (Mubah) in the Quran – have been either heavily regulated or banned in Tunisia, Egypt and Pakistan.
Unfortunately, in India, the MPL is the only uncodified religious law which has been left to odiously patriarchal interpretations of self-appointed, puritanical guardians of Islam, who have misused the bogey of collective freedom to violate individual freedoms of their fellow community members, especially the women.
The only document on the MPL, the Shariat Application Act of 1937, is a pitifully incomplete compendium that is silent on questions of divorce, polygamy, age of marriage, custody of children, etc.
Successive attempts at codification have been scuttled by the maulvis, so that they can wantonly interpret the Quran to permit polygamy, impose marriage on minor girls, and allow men to grant instant divorce.
Continuing with its rebuke of the MPL, the Allahabad HC observed that “women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran”. “It is a popular fallacy that a Muslims male enjoys, under Quranic law, unbridled authority to liquidate the marriage,” the court said.
Government Empowered to Override Religious Laws
The second reason why the above argument does not stand scrutiny is that Article 25 protects only the “essential” practices of a religion. Already, the Supreme Court has invalidated triple talaq and held polygamy to be a non-essential practice.
The recent judgement by the Bombay HC, allowing women into Haji Ali Dargah was also based on the essential practices’ test. The Court has also struck down similar regressive provisions in other religious laws.
In addition, Article 25 states that it doesn’t prevent “the State from making any law providing for social welfare and reform.” Moreover, the Constitution, through Entry 5 of Concurrent List, empowers the government to override religious laws.
Another common refrain among the Muslim community is that any reformation must happen from within. Unfortunately, internal reformation is an unattainable utopia.
Had the Parliament awaited internal reformation in Hinduism, the Hindu Code Bill would never have been passed. Internal calls for reformation can originate only when there is space for fresh ideas and at least a remotely sane, broad-based leadership representing a religion.
None of those conditions is fulfilled by the All India Muslim Personal Law Board (AIMPLB), a tiny coterie of self-appointed custodians claiming to represent the views of the Muslim community.
The body has no legislative or judicial backing and its president was just re-elected, unopposed, for the sixth consecutive term. All the other office members were also unanimously re-elected.
The same body opposed the ban on triple talaq, in an affidavit, saying it should be allowed because, in the absence of easy divorce, husbands could “murder or burn alive” their wives.
They also proudly proclaimed that men exercised “greater decision-making powers” and had “better control over emotions.”
The AIMPLB and the maulvis have cowered or brainwashed vast swathes of the repressed Islamic community, especially its women, into submission, which means that calls for reform are hard to come by. Prominent Islamic scholars like Prof Tahir Mahmood have even demanded that the AIMPLB be abolished.
MPL – Sanction for Exploiting Women
Third, critics of the UCC – including famous lawyer Flavia Agnes – contend that the Hindu Code Bill’s ban on polygamy hasn’t stopped polygamy in the religion, so why bother enacting a law against polygamy, among other things, at all? This is akin to saying that since marital rape will continue to happen, let’s not demand a law against it.
In their support, critics point to statistics from 1961, which show polygamy as being more prevalent among Hindus than Muslims, somehow forgetting to compare those to the latest statistics from 2006, which show considerable reduction in Hindu polygamy vis-a-vis Muslim polygamy.
Agnes also contends that the judiciary, through its rulings in cases such as Shamim Ara and Daniel Latifi, has already provided Muslim women with enough opportunities for justice against practices such as triple talaq, so there is no need to ban them.
This argument is practically flawed and morally reprehensible. Practically, as long as the MPL exists, it will continue to give Muslim men social sanction to exploit Muslim women.
Only a minuscule proportion will be able to approach the judiciary, and fewer still will get justice. While social sanction will not vanish with the abrogation of the MPL, it will be a strong first step.
Morally, legal permission to anti-women practices is a form of State-sanctioned misogyny that India must avoid to not be in contravention of fundamental rights granted under Article 14 and 15 of the Constitution.
Fear of Replication of Hindu Laws
Fourth, Muslims and other minorities fear, and not without reason, that the UCC will at best be a modified version of existing Hindu laws. It’s up to the government to dispel such fears and ensure that a truly secular law is introduced.
The Hindu law is far from being secular and is regressive in matters such as granting property rights to females. Such ills ought to be done away with.
Already, judicial action has ensured dilution of the sanctity of religious laws by providing refuge under secular laws to the aggrieved from different religions. It is now the duty of the Parliament to abolish all religious laws by setting in motion a strong legislative push to enactment of the UCC.
Making the UCC optional, while allowing religious laws to exist, besides being State-sanctioned misogyny, would ensure it meets with the same fate as the Special Marriage Act, which is sparingly used.
India’s social mores and diktats by puritanical leaders would render the UCC redundant.
How Must the UCC be Enacted?
Ideally, a reform as big as the UCC should involve extensive stakeholder discussions and widespread mobilisation of support, followed by gradual enactment of the law. However, giving such time to religious fanatics would ensure that the UCC is stillborn.
While stakeholder discussion is critical, it should not mean concurrence of everyone involved, especially of the so-called community leaders.
Creating the right narrative will be key to ensuring a smooth passage of the UCC, sans the communal tension and fear among minorities,
The government must ensure that messaging about the UCC revolves around gender justice, and not around national integration. All religions must be assured that none of their social customs – saat pheras, nikah etc – will be taken away.
To comfort Muslims, the government must convey that ills such as polygamy and unjust divorce aren’t religion-specific, but the result of an entrenched patriarchal mindset, which the UCC seeks to undo. Another key narrative would be to highlight the scientific research that unequivocally determines that children brought up in polygamous households are at an inherent disadvantage to those brought up in monogamous ones.
Unfortunately, the UCC will lead to unintended consequences, especially against women, which the government needs to be prepared to tackle.
An example is the familial pushback against Hindu daughters in light of the passage of the Hindu Succession Act of 2005, which gives them equal share in ancestral property. Mass campaigns on the lines of ‘Beti Bachao Beti Padhao’ will play a crucial role.
( The author works for a state government and writes about political and economic affairs and can be reached @singhK_P. The views expressed above are of the author’s own and The Quint neither endorses nor is responsible for the same.)
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