Tuesday, May 27, 2014

Can Modi get Muslims to Agree to a Uniform Civil Code?

The BJP has promised a uniform civil code in its 2014 manifesto. Tarikh Par Tarikh writes about the urgent need for it as well as the difficulties in implementing such a provision.

With respect to minority rights, the massive win by the BJP in the 2014 General Election might legitimately be seen as detrimental—on most counts. There is one provision, though, that if implemented (and it’s a big if) should benefit Muslims—a uniform civil code. This is what the BJP’s 2014 manifesto has to say about the UCC:

“BJP believes that there cannot be gender equality till such time India adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonising them with the modern times'.” 

These are noble words but they are also steeped in irony given the past history of the Jan Sangh regarding the Hindu Code Bills. While in 2014, the BJP magnanimously wants gender equality for Indian Muslims, they fought against the same thing, tooth and nail for Indian Hindus in the 50s. BJP’s “guiding light”, SP Mukherjee (as acknowledged on the BJP website’s home page) spoke forcefully against proposals such as banishing polygamy and awarding property rights to Hindu women because, as per him, this would "shatter the magnificent architecture of the Hindu culture"; a fairly inaccurate prediction it would be safe to say.

But ulterior motives aside, at this stage, to use a Shastrism, “they’ll take the runs any way they come at this stage”. If the BJP can get the UCC passed, their past record or their “real” motives matter little here. Of course, that’s easier said than done. First, you have the unfortunate but undeniable fact that the Muslim community in India strongly opposes the modernisation of these laws. Part of the reason is the extreme obscurantism that has taken root. I mean, if the biggest political mobilisation of Muslims post ‘47 was over denying alimony to a poor, aged woman who had been abandoned by her husband, then something is seriously wrong here. Secondly, you have the political alienation of Muslims within modern India. Political alienation, as Partha Chatterjee shows in his famous essay, The Nationalist Resolution of the Women's Question, which goes hand in hand with a social disconnect from the State. In the 19th century, for example, Hindu Bengalis refused to let the distrusted colonial state interfere in women’s modernisation, a process getting repeated with Indian Muslims in the 21st century. This point, of course, becomes all the more acute given Modi’s background with the RSS as well as the Gujarat Pogrom.

To introduce UCC successfully, therefore, Modi will have to reach out and convince at least some Muslims that hitching their wagon onto a unified law is beneficial for them. This might seem near impossible today but there is one instance that might act as a small precedent. In 1927, a gentleman named Harbilas Sarda moved a bill in the Central Legislature which aimed to bar Hindu child marriage. Surprisingly, a number of Muslim legislators chose to demand that the law apply to Muslims too, in the face of stiff opposition from the mullahs of course. This effort was led by Jinnah (representing Bombay) and his speech from a debates around the bill is, in fact, worth quoting in some detail:

“I cannot believe that there can be a divine sanction for such evil practices as are prevailing, and that we should, for a single minute, give our sanction to the continuance of these evil practices any longer. How can there be such a divine sanction to this cruel, horrible, disgraceful, inhuman practice (child marriage) that is prevailing in India? Sir, I am convinced in my mind that there is nothing in the Quran, there is nothing in Islam which prevents us from destroying this evil. If we can do it today, do not wait till tomorrow. I fully recognize the orthodox opinion. I fully appreciate the orthodox sentiments, the orthodox feelings both of the Mussalmans and of the Hindus. Sir, whether certain practices have any sanction, divine or religious, or not, usages and customs grow up, and when any social reform is suggested which goes to destroy the usages and the practices to which the people are used and upon which they have looked as semi-religious usages and practices, it is always known all over the world that those people who have got deep sentiments, deep convictions, strong opinions, always resent, and they believe that it is destroying the very root of their social life or religion. And, sir, as far as my own constituency is concerned, that, is, Bombay, I have no mandate from them. This measure has been before this House for a long time, this measure certainly has been discussed in the Press and on the platform; but my constituency has not given me any mandate whatsoever, of any kind, and, therefore, perhaps I am very happy and perhaps I am in a better position than my honourable friends, who probably are afraid that they may have to face their constituencies in the future, and that they may have some trouble, or some of them may have got some mandates. But, sir, I make bold to say that if my constituency is so backward as to disapprove of a measure like this, then I say, the clearest duty on my part would be to say to my constituency, “You had better ask somebody else to represent you”.”

Eventually the Child Marriage Restraint Act (CMRA) of 1929 was passed, fixing the legal age of marriage of girls at 15 and for boys at 18 for both Hindus and Muslims. Of course, there is rich irony here too. In March 2014, Pakistan moved to increase the marriageable age to 18 and 21, respectively, an amendment that India had made in 1978. Just like in 1927, the mullahs opposed it but unlike earlier, this time they won—the bill is still in limbo. Apart from this, the act is patchily implemented in both countries and Modi himself has married in contravention of the law.

As this example shows, having a unified and enlightened civil law is hardly impossible in India. If it could be done in 1929, it should surely happen now, 85 years later. Of course, this will require self-awareness on part of the Muslims and a reach out to the current government to show at least some Muslim support for a UCC. With there being almost no Muslim leadership now—Muslim representation in the 2014 Lok Sabha elections has hit an all-time low at 22—it is difficult to say where this initiative will come from, though. Other than that, Muslim leaders who have taken on the mullahs in independent India have usually met a rather ignominious end. While in 1927, Jinnah could challenge his constituency to replace him and still manage to get the CMRA passed, in 1986, when Arif Mohammed Khan bravely resigned over the Congress treatment of the Shah Bano Case, it spelt the end of his political career.

Led by Nehru and Ambedkar, the reform of the Hindu Code Bills in the 50s was probably the single greatest achievement of our Parliament. It created a progressive and gender-neutral Hindu civil law. Indian Muslim law, in comparison, was left untouched, orphaned by the Indian government, the last reforms taking place under the British. This has led to a situation where Pakistan and Bangladesh, the other two successor states of the Raj, have reformed their Muslim Law, leaving Indian Muslims limping in at last place in South Asia. For example, the medieval Triple Talaq provision has been struck down in both Pakistan as well as Bangladesh but exists in India. Think about that: what could be a better symbol of hitting rock bottom than having laws worse than Pakistan? An obvious point you would think, but one that so many Indian Muslims refuse to see.

First published on NewsYaps

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