Special rights for specific groups in the form of reservations and quotas are justified with a viewpoint that these help overcome historical disadvantages and assist powerless groups to join the mainstream. The Dalits are a case in point. Even this has had an inverse effect displayed with Gujjar agitation in Rajasthan in june 2007 asking for reservation in ST catagory. However, exempting religious communities from progressive legislation has the exact opposite results
In 2005, the press reported that the Indian Supreme Court has ordered the Darul-ul-Uloom of Deoband and the All India Muslim Personal Law Board (AIMPLB), the two most important Muslim bodies in India, to reply to a petition filed against them. The petition charges the two organisations with interfering with the country’s legal system and introducing parallel Islamic laws in violation of the Constitution.
This petition refers particularly to the alleged rape of a Muslim woman, Imrana, mother of five children, by her father-in-law, in Muzaffarnagar district, UP.
Initially the local Muslim Panchayat (council of elders) declared that Imrana could not live with her husband any longer, even though he was not willing to separate from her. This decision was endorsed by a mufti of the prestigious Sunni Muslim seminary of Deoband. The ulema of another important Sunni seminary, followed suit.
However, dissident Muslim voices were raised against this decision.
The Hindutva lobby latched on to the fatwa of the ulema, describing it as repressive of women and intensified their campaign for abolishing Muslim personal law. As always, nothing conclusive came out of the hullabaloo. The Union and state governments kept quiet, asserting that the police was investigating the case and that as long as a court did not hear the case and give a judgment, they could express an opinion on the issue.
The controversy surrounding the Imrana case reminds of Shah Bano case of 1985. Begum Shah Bano, a middle-aged Muslim woman from Madhya Pradesh, was divorced by her husband, after 43 years of marriage. She filed a petition in the state High Court that as an Indian citizen she was entitled to financial support from her former husband.
Islamic organisations informally arbitrate on many matters in India, but when their rulings glaringly conflict with the law, the judicial system is bound take some action.
On that occasion also many liberal and progressive Muslims, including academics, lawyers, jurists, members of parliament, women activists and political workers mobilised in favour of the Supreme Court judgment. But the conservative forces outnumbered the modernists. Unwilling to antagonise the Muslim vote-bank, Prime Minister Rajiv Gandhi supported the traditional standpoint. Sadly, the Indian parliament passed a special law, exempting Muslims from obligations to financially support ex-wives.
To understand these issues we have to look at the country’s history and legal system. Although article 44 of the Indian constitution lays down that a uniform civil code, imposing the same civil rights on all male and female citizens, will be adopted by India, this has never been implemented fully. Nehru initiated a number of reforms, modernising and democratising the Hindu marriage and inheritance laws. These reforms were also applicable to Sikhs, Buddhists and Jains. The reforms forbade Hindu men to take more than one wife, prohibited child-marriages, and gave daughters and sons equal inheritance rights. However, the Muslim community was exempted from these reforms.
The exemption which Nehru’s government made for the Muslims was based on good faith that Muslim community leaders would prepare their members to voluntarily join the mainstream. However, the expectations were in vain. Instead the ulema promoted isolationism of Muslims. Muslim women in particular are the most vulnerable because traditional Islamic law on marriage, divorce and inheritance is outmoded and inadequate and does not protect their rights.
The demand for a uniform civil code essentially means unifying all these 'personal laws' to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to.
It is high time that India adopts a uniform, common civil code which confers equal rights on all men and women.
To put the delay in perspective, however, it should be added that Article 44 of the Constitution is by no means the only directive principle to have not been implemented more than half a century after it was laid down. Most directive principles continue to remain pious doctrines rather than the law of the land.
