Poonam I Kaushish
Secularism has always been the Hindutva Brigade’s bug bear and political untouchability the Congress catch word. But Modi’s ascendency to India’s Raj gaddi has turned the tables via the chants of Sarva Dharam Sambhava. Whereby Ram, Allah and Jesus might need to take a back seat if the BJP has his way and say: Of knitting India’s diverse social fabric into one nation. Akhand Bharat, Sampooran Samaj slogans are resounding in Delhi’s political corridors. What’s new?
An inkling that the Centre is likely to bring the contentious Uniform Civil Code (UCC) was given during Question Hour last week. In an innocuous reply, the Law Minister talked of the Government holding “wide stakeholder consultation” on the issue as per Article 44 of the Constitution. No big deal as the UCC is part of BJP’s election manifesto which argues that there cannot be gender equality till such time India adopts the Code which protects the rights of all women.
Undeniably, this is the first time the Modi Government has formally put forth its stand on the controversial issue in Parliament since coming to power. And the stars and the Supreme Court seem favourably inclined. Given, that it has thrice tried to resurrect the campaign for enactment of a common civil code, the last effort in 2003. Every time the result was zilch.
Article 44 simply states: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Arguably, what is it about the Code that makes the political tribe other than the Hindutva Brigade see red? Why the Congress’s predictable pantomime of puerile lame excuses which add up to “appeasement of the minorities” (read Muslims) at all costs.
Raising a moot point: Why should a common civil code be viewed as encroaching on the right of religious freedom? Or being anti-minority? If Hindu personal law can be modernized and a traditional Christian custom struck down as unconstitutional, why should Muslim personal law be treated as being sacred to the secular cause?
Alas, over the years deliberate distortions of religion to suit narrow personal and political ends had vitiated the country, which shamelessly, has everything to do with vote-bank politics. Whereby, Ram and Rahim have been reduced to election cut-outs.
Remember 1985, when a five-member Constitution Bench of the Supreme Court while disposing off the famous Shah Bano case rued the fact that Article 44 has remained a “dead letter”, and allowed divorced Muslim women to seek legal remedy under their personal law, Criminal Procedure Code or the Muslim Women’s Act.
But, the then Congress Prime Minister Rajiv Gandhi hurriedly first amended the law to curry favour with the Muslims, next performed Shilanyas for a temple at Ayodhya to woo the Hindus. In the end, he was divested by both. In 2003 again, the Court while striking down Section 118 of the Indian Succession Act 1925 which discriminated against Christians vis-à-vis restrictions on their right to bequeath property for religious or charitable use rued that “Parliament is still to step in” and frame the UCC.
In fact, the Court underscored Dr. Ambedkar’s advocacy of an optional common civil code. Whereby, according to him there was no connection between religious and personal law in a civilized society. Pertinently, during the Constituent Assembly debate on Article 35 (now 44) on November 3, 1948, he made two observations: One, the Muslim Personal Law is not immutable and uniform throughout India, contrary to what had been stated in amendments (moved by Muslim members).
Reminding all that up to 1935 the North West Frontier Province was not subject to the Shariat Law instead it followed the Hindu Law in succession and other matters. So much so that it was only in 1939 that the Central Legislature abrogated the application of Hindu Law to the Muslims of the North West Frontier Province and applied the Shariat Law to them. In North Malabar, the Marumakkathayam Law, a matriarchal form of law and not a patriarchal form of law is applicable.
Two, the Article merely proposes that the State shall endeavour to secure a civil code for its citizens, not that after the code is framed States shall enforce it upon all merely because they are citizens. It is possible that a future Parliament might make a provision in the initial stage of the Code being purely voluntary.
Not only Ambedkar, but Nehru, too, held the same view and was vigorous in his support for Article 44. Should this make him communal, even a Hindu fundamentalist? Today’s Congressmen have conveniently forgotten that the Constitution was framed by their leaders to ensure the country’s secular fabric remained intact. Can the Party claim to be secular when it has no qualms of conscience in joining hands with the Indian Union Muslim League in Kerala to form a Government.
Regrettably, Article 44 has remained a dead letter. As things stand both Hindus and Muslims have lot sight of the essentials of their respective religions and are largely misled by bigots and fundamentalists. Worse, even the educated are speaking the language barely distinguishable from that of Hindu-Muslim fundamentalists. Their stock answer to every critique: Religion is in danger.
Should they not support Ambedkar’s middle path of a voluntary civil code. Are they not aware that many Islamic countries have codified and reformed the Muslim Personal Law to check its abuse? Polygamy has been banned in Syria, Tunisia, Morocco, Iran and even Pakistan.
But in today’s politico-social reality, Ambedkar’s sound advice is more than likely to be dismissed as an utopia hypothesis. For, successive Governments have failed to draw a distinction between politics, caste and religion. Forgetting, there is no mysticism in the State’s secular character. It is neither pro or anti God and is expected to treat all religions and people alike ensuring that no one is discriminated against on the ground of religion.
Where do we go from here? It all depends on whether the Government is willing to get rid of its excess baggage of isms and instead bank on genuine secularism. The Apex Court has shown the way once more. The Government can now fire the gun from its shoulder.
India and its secularism deserve a voluntary common civil code for gradual acceptance without further delay. Enlightened opinion among the Muslims will then have a choice’ be liberal and progressive or remain obscurantist and backward. Goa already has had a common civil code willingly accepted by all.
Ultimately, no one community should be allowed the veto or block a progressive legislation. Especially, if it is voluntary and does not seek to impose any view or way of life on any one arbitrarily. Time to implement Article 44. India needs genuine secularism. What gives? INFA
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