Political Diary
New Delhi, 18 October 2016
No Ram-Rahim Poll
Cut Outs
IS THE CONSTITUTION
SUPREME?
By Poonam I Kaushish
Till yesterday Ishrat Jahan a young mother of four whose
husband divorced her on the phone was a nobody. Today, she is hogging media TRP
ratings thanks to moving the Supreme Court on the grounds that divorce through
spoken words violates her Fundamental Rights and wants abolition of the
draconian triple talaq.
The NDA Government stand is clear. It opposes triple talaq as it is against gender justice,
equality and dignity of women. It cites the case of 22 Islamic countries,
including Syria, Iran, Tunisia,
Morocco, Saudi Arabia and Pakistan which have banned this, codified
and reformed the Muslim Personal Law to check its abuse.
The All-India Muslim Personal Law Board accuses the
Government of waging a “war” against the community and has told the Supreme
Court that it “cannot decide nor interfere in religious freedom and rewrite
personal laws in the name of social reform. Triple talaq is permissible in Islam as the husband is in a better
position to take a decision”.
Can a victim be victimized by her husband for no fault of
hers? Is there no appeal against this monstrous and arbitrary dissolution of
marriage? Can a fatwa overturn marriage
sanctity? Does it not tantamount to violation of human rights? What about
Ishrat’s feelings? Should she be denied her marital rights?
Can the Shariat law annul her marriage and the clergy
trample on individual rights? Importantly does the Muslim Personal Law take
precedence over the Constitution? Is it not time we have a common law for all
citizens --- a Common Civil Code?
Tragically, even as the Supreme Court grapples with the
legal issues, trust our polity to use Ishrat’s case to play vote-bank politics
and score petty points against rivals. Instead of addressing the larger issue
of whether we should retain and allow minorities to abide by their personal
laws or adopt a uniform civil code.
While the BJP crows over Ishrat’s case to underscore its persistent
demand for a common civil code, the Congress walks a tight rope. “The
Constitution and the law of the land are capable of taking care of all such
issues”, it espouses. The Left uses Ishrat as a symbol of human rights
violation and ‘Mian’ Mulayam concurs
with the wisdom of his constituents and defends the fatwa as a “well thought out decision.”
True, the ongoing petition couldn’t have come at a more
opportune time as since Modi’s ascendency to India’s Raj gaddi the BJP has been busy chanting Sarva Dharam Sambhava. Whereby
Ram, Allah and Jesus need to take a back seat and priests, mullahs and
cardinals should help knit India’s
diverse social fabric into one nation.
The Congress is caught in a cleft stick. Aware of the
fallout of its ‘Shah Bano politics,’ is keen to avoid falling between two
stools. While many oppose triple talaq and
state every religion, should be open to reforms they are conscious of the
religious and political dimensions attached given that UP and four States go to
polls early next year. This makes it tricky for the Party to take an explicit
stand on the matter.
Consequently, it has to be sensitive to the Muslim
community’s reflexes on the issue. While some leaders make a distinction
between clergy-dictated views and feelings of ordinary Muslims, especially
women, others want the Party to reinforce its projection as the ‘premier
liberal, democratic national Party.’ As the Constitution was framed by its leaders
to keep the country’s secular fabric intact.
What next? All eyes are affixed on the Apex Court. Will it lead by example and
unshackle the 21 Century Muslim woman trapped in archaic medivial Personal
Laws? Will it again suggest implementation of the Common Civil Code? And
emphasise Babasaheb Ambedkar’s advocacy of an optional common civil code?
Recall, the Supreme Court has unsuccessfully tried three
times earlier to unshackle Muslim women from this draconian talaq edict. In 1985, a five-member
Constitution Bench of the Supreme Court had overruled the Muslim Personal Law
in the famous Shah Bano case. The Court allowed the divorced Muslim woman
maintenance from her husband.
Rueing the fact that “Article 44 has remained a dead letter,
the Court went on to argue in their decision that “a common civil code will
help the cause of national integration by removing disparate loyalties in laws
which have conflicting ideologies.” The Article provides: “the State shall
endeavor to secure for the citizens a uniform civil code throughout the territory of India”.
Predictably, the Muslim clergy opposed the judgment. The
then Congress Prime Minister Rajiv Gandhi decided to curry favour with the
Muslims and got Parliament to pass a new legislation, the Muslim Women
(Protection of Rights on Divorce) Act. This reinforced denial by the Muslim
Personal Law of any maintenance to divorced women.
The Supreme Court again resurrected the campaign for a
Common Civil Code in 2003. Regretting the State’s inaction and faulting those
opposing the demand in the name of religious freedom, a three-judge Bench of
the Apex court lamented that “Parliament is still to step in” for framing a
uniform civil code.
Significantly, one fails to understand why the Common Civil
Code is viewed by some as anti-minority? Article 44 was given to us by Nehru,
Maulana Azad and Sardar Patel, not by Modi, Shah and the RSS. Does this make
them communal, even Hindu fundamentalists? Even educated and liberal Muslims
have surprisingly chosen to remain silent on the subject.
Clearly, the minorities need to realize that there is no
connection between religious and personal law.
By deliberately distorting religion to suit their narrow personal and
political ends the country is vitiated thereby threatening its unity, integrity
and solidarity.
The AIMPLB needs to recognize that the Constitution is
supreme and only comes into the picture when someone moves court seeking
justice. The law of the land only
applies when a victim complains of victimization and seeks redress under the
Indian Penal Code.
Where do we go from here?
It all depends on whether our Muslim brethren are willing to acknowledge
that there is no mysticism in the secular character of the State. The State is
neither anti-God nor pro-God. It does not differentiate by sex. And is expected
to treat all religions and men and women alike, be it the devout, agnostic and
the atheist. It only ensures that no one is discriminated against on religious grounds.
It remains to be seen whether the Court will be successful
this time in getting rid of its excess baggage of isms. India and its
secularism deserve a voluntary common civil code for gradual acceptance without
further delay. The Ishrat issue is a test case.
Simultaneously, our minorities need to decide whether to be
liberal and progressive or remain obscurantist and backward. Ultimately, no one
community should be allowed the veto or block progressive legislation. Or
decide, dictate or ruin an individual’s life.
From successfully granting Shah Bano her alimony in 1985 to
now deciding whether to heed Ishrat’s pleas all eyes are affixed on the Court.
It can take the example of Goa which has had a
common civil code for long. Will it unshackle minority women and lay the
foundations for a truly secular India
where the Constitution is supreme? --- INFA
(Copyright,
India News and Feature Alliance)
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