The Muslim Personal Law is the substitute for separate electorate. Therefore, the two-nation theory will remain alive and kicking until Uniform Civil Code is brought to bury it. No wonder, the zealots of identity politics have been opposing it with extreme religious fanaticism. And their liberal mentors have been forwarding a plethora of constitutional reasoning to create a haze of secular nuance. But it is clear that their fancy theorisations about relativism, pluralism, multiculturalism, and postmodernism are in the service of Islamic fundamentalism.
Uniformity is anathema to identity, and national unity is the very opposite of identity politics. It valorises diversity at the expense of unity, and ignores the common thread running through regional and cultural variations. Instead, it highlights the dissimilar between the similars, accentuates the fault lines, and gives a fillip to fissiparous tendencies. The motivated overemphasis on diversity has practically nullified our old nationalist maxim, Unity in Diversity.
Uniformity of justice or diversity of discrimination?
Since the opponents of UCC flaunt the moral superiority of diversity, let it be clear that the proposed Code is about the uniformity of justice, and not about rites and rituals of family ceremonies. It’s about recognising women as equal to men, and a uniform law to protect her rights in marriage, divorce and inheritance.
By diversity, we mean variations in rites and rituals, languages and literatures, songs and dances, cuisine and couture. Discrimination and injustice aren’t parts of the diversity repertoire. Treating a Muslim woman differently from her sisters in other communities is discrimination, not diversity. It’s the worst kind of religious discrimination if a Muslim girl could be married before she attained the legal age; if her marriage were not registered; if she had to live with a polygamous man; if she could be unilaterally divorced; if she had no right to alimony; if she didn’t have the custody of her children; and, if her share in property was only half a man’s. How would it feel if a Muslim man was denied the rights available to Hindu men? Wouldn’t it be a gross injustice and unconscionable religious discrimination? Then, how on earth, in a secular republic, whose Constitution promises to secure to all its citizens justice and equality, a Muslim woman not having the same rights as her Hindu sister is not counted as a religious discrimination?
That such a situation has existed for 73 years is bizarre. This has happened despite the Directive to the State in Article 44 of the Constitution to secure for all its citizens a uniform civil code, and despite Article 13, which voids all pre-Constitution laws inconsistent with Fundamental Rights. The Muslim Personal Law (Shariat) Act 1937, with its intrinsic gender bias, is violative of Article 15 of the Constitution, which forbids discrimination on grounds of religion, race, caste, gender, or place of birth.
Also read: Muslim Personal Law is an embarrassment. Adapt it to modern life—marriage, divorce, adoption
Legal pluralism or plural communalism?
No law can be beyond the jurisdiction of Parliament, which not only has the authority to reform or repeal the MPL, but also a duty towards Muslim women to make them equal to men, and another duty towards the Muslim community to better integrate by deleting this line of separation. Those who call for reforming and codifying MPL but are against UCC are being disingenuous. They want to keep alive the ideological boundary of Partition.
They have conceded that MPL is not Sharia, and Sharia is not divine, but they are yet to let go of the two-nation mentality. They talk of legal pluralism so that their identity politics continues to thrive. Legal pluralism was the norm in empires composed of diverse nationalities. India is a nation state, which aspires to make all people equal. In the multicultural model, alien communities are told to remain aloof from the mainstream. Multiculturalism is just a fancy name for ghettoisation of minorities. Instead of cultural interaction, it promotes plural mono-culturalism where different communities live side by side, but remain unaware of one another like ships passing each other in the night.
If the advocates of legal pluralism are sincere, why don’t they ask for Sharia law in criminal matters for Muslim convicts? Would they agree to an adulterous Muslim being stoned to death?
The fear of reform
The unconstitutional persistence of Muslim Personal Law, and the State’s reluctance to obey the constitutional Directive for UCC has, mainly, rather solely, been on account of the Muslim opposition to it. Notwithstanding the Partition and the debilitation of the separatist politics, the two-nation ideology, renamed as identity politics, still commanded such heft that even the indomitable Ambedkar, while reflecting on the feasibility of UCC, had to say: “No government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad government if it did so.”
The opposition to UCC is mainly ideological, which views India as a Federation of Religions rather than a Nation of Citizens. Therefore, the State’s relation with citizens, particularly those belonging to the minority community, has to be only through its gatekeepers, the traditional ulema, the pseudo modern intellectuals, and the crass communal politicians. And, it is they who have arrogated to themselves to legislate in the community’s “internal matters”.
Also read: Reform Muslim Personal Law now. It’s communal, sectarian, and anti-Islam
The false plea of internal reform
Despite having seen through the passage of Hindu Code Bill in the teeth of opposition — which Nehru considered his greatest achievement — the same was not done for the Muslims — which Nehru considered his biggest disappointment. It was the inevitable result of ceding space to the Muslim communalists as a consolation for the loss of a separate electorate. They were allowed to manage the “internal affairs” of the community in return for a vote bank for the ruling party.
Thus, on the false plea of reform from within, the reform of MPL was deferred forever. A community that aimed for revival rather than reform, and considered adherence to Shariat the formula for restoration of Muslim rule, couldn’t let go of this last vestige of religious law. No wonder that not a single proposal of reform has been mooted by the self-styled guardian of the Muslim Personal Law, the AIMPLB, or any other organisation to date. Reform from within has been an excuse for no reform. Both the Muslim communalists and their mentors, the Hindu liberals, have been complicit in this conspiracy.
One may ask, If reform from within was such a noble idea, why was the same not thought fit for the Hindu community, and why was the Hindu Code Bill force-passed by Parliament? It’s suspected that the post-Independence government considered itself “internal” to the Hindu community, and treated Muslims as aliens with whom it was best not to meddle. The Muslim leadership also didn’t give the new State much beyond a tactical and technical allegiance, and despite profuse professions of loyalty, the sense of belonging remained missing. Deep within, both sides knew the truth. It was a win-win situation where the Muslim leadership kept receiving doles of appeasement in return of delivering the vote bank.
At the root of what Ambedkar bemoaned as “preventing the legislature” from intervening in the family matters of Muslims has been the notion that the MPL was divine and, as such, only ulema had the juristic competence in it; a non-Muslim legislature, like India’s, had no right to legislate in the matter. That’s why, disregarding the fact that most of the Muslim countries have reformed their family laws according to modern standards, the AIMPLB has been resisting Indian Parliament’s right to reform MPL or bring UCC.
MPL is not Islamic
The fact, however, is that MPL is not the same as Sharia. Even if it were, Sharia is not divine law. It’s a concept rather than a code. Its effective form is the jurisprudential methodology known as Fiqh, the methodology to derive rulings in a way that the appearance of consistency with Quran and Sunnat is maintained. The Islamic law is legislated by Faqih, the jurist, a man. If one man can, so can another and so can a woman; particularly when family law is updated as per the modern secular standards.
UCC will reform Muslims
The Indian State must embrace its Muslim citizens as fully as others, and must provide Muslim women the same rights as are available to others. There is no better way than UCC to pull Muslims from the margins of separatism into the mainstream of nationalism. The UCC shall not only reform the law, but also reform the Muslim community.
Ibn Khaldun Bharati is a student of Islam, and looks at Islamic history from an Indian perspective. He tweets at @IbnKhaldunIndic. Views are personal.
Editor’s Note: We know the writer well and only allow pseudonyms when we do so.
(Edited by Prashant)