Debating India


Cart Before The Horse


Thursday 14 August 2003, by AGNIVESH*Swami , THAMPU*Valson

Article paru dans Outlook India, ?dition du 1er ao?t 2003.

No religious community should be granted the right to pit its regressive practices against constitutional mandates. But securing a uniform civil code cannot be a Trojan Horse of cultural homogenisation.

The proof that one is genuinely keen to bring about a change is the willingness to pave the way for its informed and voluntary adoption by the people.

A consumer product is advertised in advance and a favourable stage is set for its market entry. Pre-election populist measures are initiated to pave the way to electoral victory. The same needs to be done in respect of the constitutional mandate to ’secure for all citizens a uniform civil code’, that is, if we are at all serious about it.

There are at least two serious issues that need to be addressed upfront. First, enunciating and implementing a uniform civil code is not an essential constitutional mandate. That mandate is the creation of a just, egalitarian and modern society free from discrimination. The uniform civil code is only one of the instruments to attain this goal.

We can’t afford to mistake the means for the ends. The goal of evolving and implementing a uniform code must be seen as an integral part of a commitment to create a just and egalitarian society. So long as the keenness to midwife a common code is separated from a matching concern to make justice available to all without fear or favour, this initiative could aggravate psychological anxieties and communal fissures.

Sadly, the larger ambience in which Justice V.N. Khare made his observation includes events like the post-Godhra riots and the acquittal of the accused in the Best Bakery case. Instances of State-countenanced discrimination appear to be on the rise and Muslims, in particular, are losing faith in the system. It is no comfort for the victims to hear from judges that they are manning ’courts of evidence’ and not ’courts of justice’. If the civil code discourse is divorced from an uncompromising commitment to uphold the rule of law, it cannot count on receiving voluntary acceptance by the minorities or by fair-minded people.

The second serious issue is that of the fallacy, acute especially in the Muslim context, of constructing religious identity almost exclusively on the pillars of personal laws. The over-reaction to the prospect of a uniform civil code is based on the anxiety that any reform in personal laws will undermine Muslim identity, which is felt or feared to be already under siege. This is a serious mistake. For all practical purposes, the contentious issues in this respect are polygamy, triple talaq and the refusal to pay adequate maintenance to divorced women. For any Muslim to assume - or argue - that these unjust practices are basic to the ’profession and practice’ of Islam is to insult the great faith.

It is always possible to invoke some scriptural text or precedence to roadblock reform. Take the case of polygamy. Given the limitless polygamy in practice at the time of Prophet Mohammad and the numberless war widows, it was a piece of progressive reform on his part to permit up to four wives per husband. It is unfair to turn an instance of reform in the past into an argument against reform in the present. If the Prophet were to legislate today on the matter, his verdict would have been vehemently in favour of monogamy.

At any rate, monogamy rather than polygamy is the norm in the Indian Muslim community today. Only 5.2 per cent of Muslim men have two or more wives. The corresponding figures, as per official statistics, for tribal communities, scheduled castes and high-caste Hindus are 14 per cent, 9 per cent and 5.8 per cent respectively. Justice is one of the cornerstones of Islam. A patently unjust and discriminatory provision like polygamy must be seen as a blot on that faith, especially because Muslim personal laws disallow polyandry.

The core issue that emerges is the extent to which the scriptures and traditions of any religion should be allowed to thwart values and goals embedded in the Constitution in a secular and multi-religious society like ours. In a secular society, no religious community should be granted the right to pit its regressive practices against constitutional mandates.

In a secular polity, religious communities need to harmonise two loyalties: the commitment to their religious traditions and the duty to abide by the prescriptions and duties laid out in the Constitution. In the case of any conflict between the two, the constitutional mandate must take precedence over the former in matters pertaining to issues of public significance. No religious community can claim that injustice and gender-based discrimination are so basic to its identity that they must be perpetuated at the expense of the unity and integrity of the country.

To convince the religious minorities in India about their duty to embrace the value of national integration, we must attend to two basic realities. First, the concern for and commitment to national integration has been weakening steadily over the last two decades. Second, communal forces are assertive everywhere. You can’t tell the religious minorities that they are to blame for all the sufferings of the majority community and expect them to jump on to the uniform civil code bandwagon for the sake of national integration.

This is not to argue against the need to give legislative effect to the constitutional mandate set out in Article 44, but only to insist that this sensitive task be carried out with due preparation. Part of that preparation is asserting the rule of law uniformly and uncompromisingly. The perpetrators of communal aggression, intimidation and blackmail must be reined in. An all-out effort to reassure the Muslim community that their human and constitutional rights will be protected at all costs needs to be made.

The proponents of Hindu Rashtra must not be allowed a free run to fly in the face of the Constitution and the mores of a modern, civilised society. Securing a uniform civil code for all citizens is far more than a technical legislative exercise. It must be seen as a mandate to recommit ourselves to the egalitarian and integrative vision of the Constitution - and not as a Trojan Horse of cultural homogenisation.


Article paru dans Outlook India, ?dition du 1er ao?t 2003.

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