Monday, July 7, 2014

Uniform Civil Code (baby step #2)

Maulana said "If a person is practising a religion, he/she has to follow its preachings. A Muslim who does not follow the sharia is not a true Muslim.....“No religion is allowed to curb anyone's fundamental rights,” the court added in its judgement

This is how the UCC battle will move forward. Individual Muslims will raise complaints (Shabnam Hashmi and adoption rights victory in Feb 2014, see below) and in response, the Supreme Court will tighten the screws one micro-meter at a time. 

On one side you have the secular intellectuals (and the communists). The fact that the Sangh Parivar also bats for the UCC is of no account (it is like arguing that vegetarianism is bad because Hitler was a vegetarian). Now there are also many muslim women groups who are finding their own voice. They oppose UCC but insist on reforming personal laws (by claiming that the current set of laws are due to incorrect interpretations of the Koran- an excellent gambit). On the other side you have the familiar conservative community leadership.

Over time women only Sharia courts will open (one is up and running in Pune). If the BJP intends to play a long game (as opposed to just incitement for votes in the short term) they should stand by and do nothing and let this pincer movement gain momentum one muslim at a time.

A few points need to be clarified first. Discrimination in all forms is bad. Indian muslims know this very well when they go to seek a job or look for accommodation. While there is a lot of Hindu on Hindu discrimination, Hindu on Muslim discrimination is (in our opinion) much more pervasive.

As far as women are concerned it can be argued that while Hindu personal laws are progressive they are not fully effective because of social backwardness. If the community does not sanction progressive behavior just framing a law will not be able to achieve its objective. In that sense civil laws are a reflection of what the community accepts as within the bounds of acceptability.

Here is the thing though about life in a secular nation. If there is a wrong committed and someone approaches for relief then the court should have, must have a free hand to dispense justice. This is exactly what did not happen in the Shah Bano case. The family was forced by the community to accept a patently unfair and discriminatory situation where an old lady did not even get 3000 rupees in alimony from her well-off husband.

The case below again refers to an impossible situation. The father-in-law rapes his daughter-in-law. In the normal scheme of things he should be behind bars. But the fatwa is issued that the daughter-in-law should abandon her own husband and children and live with her father-in-law. Apart from a few mad men who will agree that the above fatwa furthers the cause of justice?

If conservative muslims do not understand what is so unfair about such situations then they should a least learn from history. Until now political parties essentially have bought muslim votes over the bodies of muslim women. This strategy works when the Hindu vote is divided. But polarization is a game that can be played by anybody. Indeed when this game was played back in 1985 a poor woman lost her rights to alimony and the community as a whole lost the Babri Masjid. Not just that a string of events led all the way to Gujarat 2002 and finally to May 2014.

This is not to minimize the culpability of Hindus. It is not even an exercise in "they started it." It is back to our original point that discrimination of all types are bad. Discrimination in the name of religion just makes religion look bad. And this is the bottomline. If you do not raise your voice against all forms of discrimination then you have lost the moral right to complain when you face the sharp edge of discrimination. It is really all or nothing.
India's Supreme Court Monday rejected a petition seeking to ban Sharia courts, but stressed that they had no legal powers over Muslims and their decisions could not be enforced.

India's 150 million Muslims follow their own laws governing family life and other personal issues such as marriage and divorce, with Sharia courts used to rule on such matters and mediate in disagreements.

The top court said that Islamic judges, who interpret religious law, could only rule when individuals submitted voluntarily to them and their decisions, or fatwas, were not legally binding.

“Sharia courts are not sanctioned by law and there is no legality of fatwas in this country,” C.K. Prasad said Monday as he read out the judgement from a two-judge bench.

The different personal laws followed by India's religious minorities are a sensitive political issue. The new Hindu nationalist government is committed to bringing in a common legal code for all.

Vishwa Lochan Madan, who petitioned the Supreme Court to disband Sharia courts, told AFP on Monday that his demand had been rejected.

“The Supreme Court observed that Sharia courts have no legal sanctity. But if people still want to approach these courts, it's their will,” he said.

He filed his petition in 2005 and cited a case in which a woman was told to leave her husband and children and live with her father-in-law who had raped her.

“No religion is allowed to curb anyone's fundamental rights,” the court added in its judgement while taking note of the case.
The Supreme Court's verdict on Monday declaring that a sharia court has no legal sanction drew sharp reaction from Muslim clerics who said that the Constitution allows them the right to work and act according to Muslim personal law.

Zafaryab Jilani, member of the Muslim Personal Law Board, said, "We are not doing anything parallel to the judicial system and we don't say that any order passed by a Qazi is binding on all. Our sole motto is to resolve a matter with the consent of two parties involved in accordance with sharia."

Khalid Rasheed Farangi, a Muslim cleric, said that under the Constitution, Muslims have the right to work and act according to Muslim personal law. "Indian Constitution has given us the right to act and work according to our Muslim personal law. 

"One must also keep in mind that Sharia Application Act, 1937, has very clearly said that in those cases in which both parties are Muslims and the matter is related to nikaah, talaaq, zihar, lian, khula and mubaraat, the decisions will be taken in the light of the Muslim personal law," he said, adding that the verdict needs to be studied properly before a final statement can be given.

Maulana Mohammad Sajid Rashid, president of Kul Hind Imam Association, said the plea filed in the apex court is itself wrong as it is a religious matter. "If a person is practising a religion, he/she has to follow its preachings. A Muslim who does not follow the sharia is not a true Muslim," he said. 

Maulana Anisur Rehman, member of Imarat Shariah, Patna, however, agreed with the apex court ruling, saying that the judgment is not wrong and it is not going to hinder the functioning of sharia courts.

"For arbitration, when two parties or people consensually approach the sharia court, it is lawful. The Supreme Court is not wrong, but I need to go through the entire verdict properly," he said.

Disapproving of a sharia court issuing fatwa and order against a person who is not before it, the Supreme Court on Monday said it has no sanction of law and no legal status.

The right to adopt a child - till now restricted to Hindus, Buddhists and Jains - now extends to Muslims, Christians, Jews, Parsis and all other communities.

In a landmark judgment, the Supreme Court on Wednesday ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion does not permit it. 

"The JJ Act 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954, which enables any person living in India to get married under that Act, irrespective of the religion he follows. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute," ruled a bench headed by Chief Justice P. Sathasivam.

The ruling assumes significance as there are over 12 million orphaned children in India but on an average only 4,000 get adopted every year. "Till now Muslims, Christians, Jews and those from the Parsi community only had the power of guardianship in which one possess only legal right on the child till he or she turns an adult. The biological parents have a right to intervene during that period.

Adoption makes one natural parents and the child also gets all rights akin to a naturally born child and even inherit property said senior lawyer Colin Gonsalves who represented social activist Shabnam Hashmi, the petitioner in the case. Hashmi had moved the apex court in 2005 after she was told that she only had guardianship rights over a one-year-old girl she had brought home from an adoption home. From now she can treat the girl, now 17 years old, like her own daughter.

"We wanted to treat her like a naturally born child and wanted her to feel that way. But law and government officials stood in the way. The apex court has passed a landmark verdict and now people of all religions can adopt," she told MAIL TODAY.

Not a right: The court, however, turned down the plea for declaring the right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution saying that such order cannot be passed at this stage in view of conflicting practices and beliefs. 

Terming the JJ Act a "small step towards formation of a uniform civil code", the court said: "A person is always free to adopt or choose not to do so and, instead, he follows dictates of the personal law. To us, the JJ Act is a small step in reaching the goal enshrined by Article 44 of the Constitution which prescribes a uniform civil code."

Objection: The All India Muslim Personal Law Board (AIMPLB) had registered its protest against the PIL, terming it a covert attempt to slip in a uniform code by the backdoor which would infringe the Shariat law.  

"We have our own personal law and no step should be taken to covertly formulate a uniform adoption code without taking into account our stand on the issue," AIMPLB had said before the apex court.


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