India: Shah Bano redux? Courts reignite secularism debate

Shah Bano redux? Courts reignite secularism debate
Judiciary impatient on uniform civil code
Ramesh Ramachandran

2015-08-08 , Issue 32 Volume 12

Two recent judicial interventions have stoked a debate about secularism as we in India (as opposed to, say, the French or the Turks) have known it, raising some probably uncomfortable, but possibly relevant, questions. The two cases also seem to signal judicial impatience over a Uniform Civil Code.

On 24 July, a Supreme Court Bench headed by Chief Justice HL Dattu disallowed a prayer for being allowed to sit for the All India Pre-Medical Test examination wearing a hijab (headscarf ). “Your faith won’t disappear if you appear for the exam without a scarf,” the Bench is reported to have told the counsel for the petitioner. The petition followed a Central Board of Secondary Education (CBSE) notification advising a certain dress code in order to prevent students from using unfair means in the examination. Pursuant to the directive of the court, a Catholic nun in Kerala refused to sit for the examination without her habit (Christian headscarf ).

In the 24 July directive, the Bench is also reported to have said that such small issues do not warrant the court’s interference. However, it would not be an exaggeration to say that this is an issue that has agitated the collective mind of a section of the society for some time now and the ferocity of the religious-freedom- versus-equal-rights debate at home has drawn its sustenance, in part, from the West where France, for instance, banned all religious symbols from public schools, including, but not limited to, the headscarf (Christian and Islamic), burqa, the Sikh turban and the veil from public spaces. It is ironical that India, whose secularism is held up by some as an example for France and other countries of the world to admire and emulate, is itself beginning to resemble the Turkish laiklik before Prime Minister-turned- President Recep Tayyip Erdogan came along or the French laicite.

On 6 July, a Supreme Court Bench headed by Justice Vikramjit Sen ruled that an unwed mother can be the sole legal guardian of her child without the father’s consent. The Bench is reported to have said that it is necessary that religion should be distanced from law in secular India and the court has to interpret the law of the land in accordance with legislative intent and case law, not the tenets of religion (Christianity, in this case). “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation,” the Bench added for good measure.

The 6 July ruling reminds one of the 23 April 1985 Shah Bano case judgment, when the Supreme Court was commended for upholding the dignity and rights of a Muslim woman but Parliament overturned the judgment by passing the Muslim Women (Protection of Rights on Divorce) Act 1986 in order to assuage the feelings of a section of the Muslim community. Two subsequent interventions by the Supreme Court — in the Danial Latifi case of 2001 and the Shamima Farooqui case of 6 April 2015 — upheld the interpretation of the law as contained in the Shah Bano case judgment. The latest ruling has refocused attention on Uniform Civil Code, which is a touchy issue as some of the minorities see it as a Hindutva ploy to strip them of their personal (religious) laws although some women’s activists and organisations welcome it to the extent that it promises a better deal insofar as gender equity is concerned. For its part, a Supreme Court Bench iterated earlier this year that it is necessary to remove religion from civil laws; otherwise India might not remain a secular nation for long.

The two judicial interventions come at a time when the Indian construct of secularism is coming under strain as Prime Minister Narendra Modi’s Government systematically and disingenuously goes about implementing its worldview with a messianic zeal.

India became a “secular” republic after the Preamble to the Constitution was amended in 1976 but are we as a nation and society ready and willing to subsume our religious freedom and/or identity for a more equitable, forward-looking law? The courts would like to think so but the intersection of religion and politics is fraught with dangers, some unforeseen. Until then, let’s keep the faith!

ramachandran@tehelka.com

(Published in Tehelka Magazine, Volume 12 Issue 32, Dated 8 August 2015)