In the life of a nation, an idea must only be tested over a finite period of time; if the stated objectives are not met within this fixed time frame, then the idea must be modified and put to test again.
Strategic thinking requires making the necessary changes in our laws, in accordance with the needs of a changing society. That is the intelligent way to growth. Slavish adherence to one view, no matter how authoritative the source, is no different from religious mania.
In the year 1934, when our country was in the throes of the fight for independence, and our leaders strived towards making a new India, the idea of a constituent assemble for undivided India was proposed by the great humanist M.N Roy. Soon it became an official demand of the Indian National Congress and was accepted by the British on 8th august 1940.
Since independence, and the meeting of the constituent assembly of a divided India on 14th August 1947, several laws have been introduced time and again by the Indian parliament, and on several occasions the Judiciary has intervened to put an end to discriminatory laws. Similarly in laws relating to divorce and succession, the laws of the Hindus have been changed (and rightly so) as well as accepted by progressive sections of this society.
The Christian marriage act too was amended by the parliament in keeping with changing times and to end discriminatory practices, but when it comes to the sharia laws, any attempt to introduce a uniform civil code is perceived by the Muslim community as imposed majoritarianism.
The most politically significant Minority in India are the Muslims. Minorities like the Sikh and Christians are less in number & of lesser electoral significance to ideological factions that can exploit them and therefore: when it comes to Islam, the situation becomes completely different in such a manner, that in terms of a ‘minority’ the status of Muslims assumes a different significance altogether.
India has the 2nd largest Muslim population in the world (about 200 Million) which is a number sufficiently large to not be a minority in any real sense. With the visible and weaponised rise of Global political Islam, the social strife and conflict in European societies from massive Muslim migration, and in India, Jihadi politics and cross border association with terrorism in Kashmir, it is naïve to assume that the common man will buy into the complex arguments that are required to keep such ‘secular’ policies in place.
But what makes Muslims unable to keep pace with contemporary social change in India, despite being an inseparable part of the country’s history as well as being deeply embedded in some way in all things Indian?
In my view it is the Indian Constitution.
With the 42nd amendment of the constitution in 1976, the word “Secular”, too was added to the preamble of The Indian constitution. Let us now look at our modes of secularism.
This unusual, model of secularism, demands regressive social practices of the majority Hindus to be dismantled but protects and promotes regressive social practices of the minorities. It is a strange model arrived through negotiations between secular ‘Hindu’ thinkers and ‘Minority’ thinkers in the constituent assembly.
It is a model where Hindu temples can be controlled by the Government and their proceeds used for Secular purposes while minority institutions have no such obligations. It is a model of Secularism where religious institutions, schools and colleges run by the Minority community have privileges which are denied to the Majority religious community.
This concept of special privileges induces several other communities into asking for a minority status, the Jains being the last granted and Lingayats now demanding.
Rationally, a democracy cannot be conducted on the whims of a majority but logically it cannot also be conducted through ignoring the feelings of a majority. Equally it should not be conducted on the whims of a minority.
There may have been sound reasons, psychological, personal & political then, for the representatives in the constituent assembly, to have taken the positions they did and many of those decisions would have been prompted by the politics of those times.
The founding fathers of India, decided upon a model of secularism that was hitherto unknown to any great secular democracy of the world. I do not know of other great founding fathers that practiced loquacity, intellectual grandeur and pomposity with such ferocity.
Except in India, everywhere secularism (in secular countries), has meant equal rights and that personal laws, wherever they conflict with individual civil rights, be in line with the Country’s civil law.
Even though article 44 says, ‘The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ In practice the other articles in the constitution make this a hollow proposition.
The recent Judgment of the Supreme Court on the matter of Instant triple Talaq only goes to show that in 2017 – 70 years after independence, in the largest Democracy of the world, the ancient right given to a man to unilaterally divorce his wife still remains. Instant Triple Talaq has been declared unconstitutional (by a margin of 3-2) but the unilateral right of a man to divorce his wife at will over a period of 3 months remains as a legally acceptable way of divorce.
The Indian Constitutional provisions that make it well nigh impossible for the parliament or the Judiciary to alter laws that were crafted for the Arab Society hundreds maybe a thousand years ago.
Dr. Ambedkar had pointed to this problem of capitulating in the face of Islamic pressure. His exact words to the constituent assembly were: “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for?”
“We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.”
But the pressure was high from the Muslim members in the Constituent Assembly. Addressing the constituent assembly Maulana Hasrat Mohani had said: “I would like to say that any party, political or communal, has no right to interfere in the personal law of any group. More particularly I say this regarding Muslims. There are three fundamentals in their personal law, namely, religion, language, and culture which have not been ordained by human agency. Their personal law regarding divorce, marriage and inheritance has been derived from the Quran and its interpretation is recorded therein. If there is any one, who thinks that he can interfere in the personal law of the Muslims, then I would say to him that the result will be very harmful. Musalmans will never submit to any interference in their personal law and they will have to face an iron wall of Muslim determination to oppose them in every way.”
Dr. Ambedkar had in the same assembly, expressed his views thus: “Coming to the question of saving personal law . . . if such a saving clause was introduced into the Constitution, it would disable the legislatures in India from enacting any social measure whatsoever. The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort.”
On the one hand it can be said that its nobody’s business what the minorities do with their personal laws, but when a very large population of a country remains steeped in archaic laws it affects the entire country, and the Left liberal aristocracy along with some political parties prefer to keep the Muslims backward – as an army – that they can use to apply political pressure for their own advancement.
The intelligentsia should have been in the forefront of an honest debate – take for example the charge that that UCC will necessarily be a Majoritarian imposition – this is not only flawed but deliberately misleading – but the overweening, faux liberal intelligentsia along with Marxists has created a version of thinking, seemingly rational & high minded thought that even those who see through its corruption and politics are tricked into unwittingly examining everything through a prism that will eventually lead them to believe that the left liberal narrative alone is righteous, fair, secular & equitable and the rest is fascist, communal and regressive. This is because of the all pervasive leftist siege on institutions.
Let’s talk of some Hindu laws – the law relating to divorce in Hindus for instance – is not a Hindu concept. There was no concept of divorce in Hinduism. It is a civil law import into the Hindu marriage act which has been accepted as it should have been. Similarly Hindu laws related to succession were found discriminatory and struck down by courts. This too has found acceptance, and rightly so. That this has changed everything socially on the ground and in Hindu communities is certainly not the case. But the law does allow the aggrieved to have their rights restored. More needs to be done and the provisions in the Constitution allow the parliament and the Courts to do that.
All this talk of change in personal laws of Muslims as ‘majoritarianism,’ holds no water.
In Islam, Talaq is practiced as a unilateral right that is only a man’s. Any argument to the contrary, quoting the provisions of ‘Khula,’ is certainly disputable. In Khula (release) a woman does not have any unilateral right. The wife can seek dissolution, after seeking permission from her husband, which he can refuse. Khula also requires her to return the Mahr as well.
Khula being touted by left liberals as quid pro quo and equal empowerment for women in Muslim Personal law is misleading the public at large and is a disservice to Muslim women in particular.
The constitution of India cannot become secular by the mere insertion of that word in its preamble.
This is an issue of humanity and fairness that is being blocked because of the mistakes made 70 years back by the constituent assembly. It is a Constitutional Anomaly that must be righted.
In 1931, 90% of India was illiterate. It has today a high youth literacy rate. The population is chiefly under the age of 35, Votes in high percentages, and has access to information. It won’t buy into what appears shady to it.
Because of political exigencies, and the slothful nature of our systems, it is a difficult model to change fast enough, but change it must, to achieve equity; social and economic growth & liberty for at least those Muslim men & women who choose to live a secular life and for India to be free from this model that creates a false sense of entitlement and simmering resentment at the same time for both Hindus and Muslims.
Centrists must take this opportunity to wrest the motivated narratives of the extreme fringe of the right as well left and be truly liberal. The historic mistakes made regarding the positioning of Indian Secularism must be changed and the constitution amended suitably.