Foul in the name of fair play

Keep the ‘faith’: There’s been a long debate in India about reconciling a Uniform Civil Code with the promise of religious freedom. Photo: Vivek Bendre

Keep the ‘faith’: There’s been a long debate in India about reconciling a Uniform Civil Code with the promise of religious freedom. Photo: Vivek Bendre   -  The Hindu

Sukumar Muralidharan

Sukumar Muralidharan

For all its elaborate disguise, the Uniform Civil Code is clearly another weapon in the offensive against equality and justice

Since 2007, the Bharatiya Muslim Mahila Andolan (BMMA) has been campaigning for personal law reform with a special focus on gender justice. The movement took shape soon after the Gujarat carnage of 2002, a brutal episode in the gradual but inexorable alienation of India’s Muslims since Ayodhya became the focus of a bitter political virulence in the 1980s.

Zakia Soman, a founder-member of the Andolan, insists that women of the Muslim faith need to find their voice and break the shackles of patriarchy. The struggle against isolation would remain incomplete if challenges internal to the faith, such as its long thraldom to dogma, were not confronted.

Women of the Muslim faith have waged a long struggle for equality. Shahbano Begum from Madhya Pradesh won her battle against a perverse system of maintenance after divorce in 1985. But she was deprived of the rewards because of a collusive deal between the national leadership and the guardians of patriarchy.

It was a time when the Indian practice of secularism, never very principled or consistent, was acquiring a transactional form, of political deals involving the syndicated leadership of various communities. The All-India Muslim Personal Law Board (AIMPLB) — then, as now, an all-male body — emerged in this context as the syndicated representative of a large and diverse community.

The transactional strategy came a cropper when the majoritarian syndicate began a campaign to supplant a Muslim place of worship in Ayodhya. As politics sought to channel a movement that rampaged riotously over all its institutions, secularism in practice shifted from the transactional mode to an unstated, but harsh majoritarian morality.

The AIMPLB and the whole constellation of minority syndicates were bruised but remained in business. They were increasingly seen as entrepreneurs of the faith, cornering the paltry privileges afforded by the majoritarian order while their constituents remained deprived of basic rights.

In 2013, a BMMA survey of 4,700 women of the Muslim faith revealed affiliations to a wide range of legal schools, and in several cases, none at all. Fewer than one in 20 had heard of the AIMPLB and virtually none thought of the local cleric as a viable mediator on personal or domestic matters.

Clearly, all women, including those of the Muslim faith, would greatly appreciate the civil law option, given sufficient guarantee of fair procedure. It was a petition by Shamim Ara of Uttarakhand that secured a 2002 Supreme Court judgement holding invalid a summary pronouncement of divorce — by the mere utterance thrice over of the term talaq — unless “adequate cause” was established and an effort at “prior reconciliation” made.

Initial resistance from the AIMPLB crumbled, though an impression persists that its acknowledgement of the Shamim Ara ruling is a strategy to deflect pressure from another petition before the Supreme Court from Shayaro Bano of Uttarakhand, which seeks a formal pronouncement of the “triple talaq” as a violation of basic rights.

The Supreme Court is also hearing a petition from a woman of the Muslim faith from West Bengal, questioning the authority of the AIMPLB in matters of personal law.

There is a danger that the potential of the moment could be defused by its subjection to a political agenda. A pronounced bias towards viewing Islamic law as a singular — if not the sole — problem is evident in a recent questionnaire circulated by the Law Commission, a high-level advisory board, inviting proposals on pathways towards the constitutional directive of a Uniform Civil Code (UCC).

Viewed through the prism of fundamental constitutional principles, uniformity is a norm that need not necessarily serve the larger objects of equality and justice. Indeed, there has long been an intense debate about squaring the objective of the UCC with the seemingly conflicting promise of religious freedom embodied in Article 25.

A way out of this conundrum lies in the clauses that qualify religious freedom, permitting the state intervention in any “secular” activity “associated with religious practice”. This pathway, though, meanders into further confusion, since the lines demarcating religious practice and the “secular” activities it entails are never very clear.

Liberal democracy has devised an answer which involves the defence of personal choice. Every citizen is to be guaranteed her zone of autonomy, provided her practices do not intrude into another citizen’s autonomy. In the laws that govern domestic and social life, there are choices available to every citizen that are most often not exercised, because of the stigmas associated with repudiating the demands of orthodoxy. In such situations, the state is enjoined to offer the right of sanctuary, to provide a secure environment in which the citizen is able to exercise her rights to equality.

Clearly, this intent is not part of the current ruling dispensation. Isolating citizens of the Muslim faith from constructive social and political engagement has been integral to the BJP’s electoral success. The strategy is reflected today in the lowest levels of political representation the community has ever enjoyed in independent India.

During the Ayodhya turmoil, the alleged Muslim recalcitrance towards the authentic cultural ethos of the Indian nation was the basis for their isolation. Then came the years of obsession with terrorism, when Muslims were collectively stigmatised as the unique vector of that virus. Today their dietary choices are under attack, amidst unprecedented public tolerance for words and deeds that deny their dignity in the public sphere.

For all its elaborate disguise, the UCC is clearly another weapon in this offensive against equality and justice. If the community responds once again by retreating behind walls of patriarchy, it would hand chauvinists of all denominations, precisely the victory they seek.

Sukumar Muralidharan is an independent writer and researcher based in Gurugram

Published on November 04, 2016
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