October 25, 2016

India: Beating Around the Bush N P Ashley on Case for a Union civil code

Deccan Herald - 23 October 2016

Case for a Union civil code

by N P Ashley

Change in mindsets: Debate on personal law needs to move beyond religion and gender

A woman lives 30 to 40 years as somebody’s wife, spends her life, youth and energy working for his household, gives birth to their children and brings them up.

For whatever reasons, she is divorced by him. She is aged and can’t work. Given her work at home has not been quantified and compensated for, shouldn’t the husband pay her some money for her sustenance, rather than leave her to destitution? I can’t think of anybody who will be inhuman enough to say that the woman can be deserted at this phase of her life.

Do you believe in the Indian Law or Muslim Personal Law is what was asked. The abstract theoretical question erases the fundamental issue in the experience: a woman’s life, work and rights unaccounted for. In this exercise, the personal law becomes a symbol of Muslim identity, right and even pride.

Once thus framed, those who support the personal law can claim to be the champions of Muslims. It suits the Hindutva brigade, as they get to play up the nation-religion dichotomy vis-a-vis Muslims of India. It serves the purposes of the male, upper caste, upper class and political Muslim leadership because once under attack from the corners that are known to demonise the community, the embattled atmosphere will make it impossible for the oppressed and the exploited in the community to speak up. Once framed as a community symbol, the issue becomes a Hindu-Muslim problem, which it never was, to begin with. The majority-minority fight is a great opportunity for the majoritarian politics to legitimise itself and grow. It is not just a hopeless, false opposition but also a dangerous tangle.

Some erstwhile supporters of the Uniform Civil Code (UCC) have now backed out citing the present Central majoritarian government. When a clearly anti-Hindu, colonial government abolished Sati and brought in a number of reforms, they clearly didn’t have the best of intentions. But it did assist in the ushering in of a certain kind of modernity. Acts are evaluated against impacts, not intentions. This is not a do-or-die of political opposition – making it so only takes us further into the traps of the above said false binary.

How to undo this conundrum? The first step could be that the discussion should not be between male Hindutvawadis and male Muslim leadership. It is not even between “progressive” men and “regressive” men as it converts women into speechless entities in an issue that is basically about them. It is between some Muslim men who want to use a British colonialist precipitant for their interest of being community leaders (I don’t think anybody is desperate to marry again in the age of nuclear families or pronounce triple talaq!) and some Muslim women who are denied their citizenship rights and human rights using exactly the provisions of these laws.

Women of all religions can support this as a women’s cause, Muslim men can support women as this injustice is done in the name of their community’s rights and other men could support it as Indians or humans. As always in questions of justice, the number of these complainant Muslim women don’t matter, the voiced grief does.

Is this possible? Won’t women be able to come out only when the “regressive” laws are abolished? Social movements change laws; not the other way around. Debates around legality seem to saturate our socio-political concerns so much that Muslim women now look like an exclusively legal and abstract entity. The second step is to delink religion by bringing in the thickness of history. Islam, like all religions, is a spiritual-ethical code. The transhistorical appeal of religions means that they provide an ethical guideline for human conduct. Ethical questions cannot be brushed aside using technical arguments that contradict the spirit of the religion.

Setting aside paradigms

If the Holy Quran instructs repeatedly about taking care of orphans, if Prophet Muhammad in the strongest of words has talked about being most caring and kind to orphans, how can leaving a woman to orphanhood in her senility be Islamic? The word in the scripture, the model of the Prophet, law, opinion of the learned and research are five areas to consider in figuring out whether something is Islamic or not: a clear way of acknowledging history in the social life of believers.

Islamic scholar C T Abdurahim makes an interesting point: slavery was prevalent in Arabia during the Prophet Muhammad’s time; it was not banned. But the Prophet instructed the people to treat them very well and freeing slaves is a recommended penance. The spirit of Islam is clearly anti-slavery.

Once the current paradigm is set aside, it needs to be said that even those who invoke UCC as a one-step ideal solution for Indian problems are mistaken. It is not even practical. Forget urban, middle-class or upper-class nuclear families across religions, think of tribals and adivasis. As per the 1961 census, polygamy is maximum among tribals (15.25%), followed by Buddhists (7.9%), Jains (6.7%), Hindus (5.8%) and Muslims (5.7%).

If we ban polygamy nationally, we are imposing our values on them without involving them in the process. The process will give us outlaws who the state can then conveniently target. As it always happens in history, standardisation has the tendency to impose the majoritarian and its “modern” on others and we should watch out about making UCC a symbolic ideal. When we are working with many communities which don’t even have codified laws, the danger of uniform only reflecting the voices of the powerful is quite real.

Instead of a Uniform Civil Code, it might be good to think of a scheme which attempts a union of various cultures. As citizens of India, men and women of all religions and communities have certain responsibilities and rights. As lyricist Javed Akhtar once said, unless and until civil codes of communities are not in contradiction with the constitutional rights, let them move on with it. But when there is a contradiction, Constitution should prevail. Through these mutual conversations, we cross-fertilise religious, caste, linguistic and regional communities and perhaps, over time, evolve a Union Civil Code – the inclusive civil code of the Indian Republic necessitates those historical conversations.

(The writer is assistant professor of English at St Stephen’s College, Delhi)