Wednesday, July 18, 2007

Indian Muslims and the court system

In India, the concept of a Uniform Civil Code is a very controversial subject. Even though it is not mandated as per the Constitution, it is a Directive Principle to try and bring this about (as per discussions in the Constituent Assembly where it was thought that the aim should be that people of different religions will eventually converge towards a common law). So, in India, it is currently seen as impossible to try and bring about a common civil code for all. Civil code is the one dealing with family matters, with disputes, maintenance, marriage, divorce and so all. Each religion has their own traditions.
However, there have been many social movements in the past to deal with improvements in traditions, especially with respect to the Hindu religion. So, for example, reprehensible practices such as sati (which is actually not even a civil case, but a criminal case), the caste system and discrimination against the lower castes are all illegal, and not sanctioned in any way by the Government.
A 'uniform' civil code is in many a misnomer, one could instead call the steps to have equal rights for all as a common civil code, something that is agreeable to citizens, no matter what the religion. However, realistically, given the state of parliament right now and politics, no such movement could hope to succeed.
In some ways, especially when it comes to things such as adoption laws, rights of women in marriage and in divorce, it is difficult to justify differential treatment based on marriage. The courts are going a long way in this, with the lower courts and the Supreme Court stepping in from time to time to try and correct laws that end up reducing some of the rights that a women should have in a humane way. One example of this was the Shah Bano judgement which the Rajiv Gandhi government over-ruled through a constitution amendment in 1986 after tremendous pressure.
And then I read this article, and even though it was concerning the Muslim community, it was still something that seemed fairly shocking:

In a move to emphasise primacy of Sharia, the All-India Muslim Personal Law Board has sought a review of SC orders which have progressively enhanced safeguards for Muslim women in divorce, marriage and maintenance cases on the grounds that they conflict with Islamic law.
The Board's decision to set up a 11-member 'social reform committee' is born out of its concern over some recent SC judgments. Members point to SC's interpretation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, in the Daniel Latifi and Others vs Union of India case in September 2001. The apex court has held the former husband alone as responsible for the woman's maintenance. But this seems to have drawn a conservative response from the board which maintains that such a ruling was not in keeping with Sharia laws. A more recent case is of Iqbal Bano in June 2007 where SC set aside an Allahabad court judgment and ruled that a Muslim woman who had been deserted could avail maintenance under section 125 of CrPC irrespective of provisions of the 1986 Act.

This is a very uncomfortable situation. The Board is recommending essentially that some hard-won rights that have been won by women should be kept aside because they conflict with Sharia. Now, it is not easy to condemn the practises of a religion, but many of the interpretation made by the Islamic clergy regarding the rights of women are retrogade, and not deserving the rights that they should have.
In fact, for a modern democracy, it would seem very impossible to have the case of 2 women having very different rights because of their religion. It should be within the rights of any women (or any man for that matter) to invoke the recent judgments and not have to defer to the clergy, After all, this is the same clergy that recently ruled that girls should not have mixed schools, but should study in different schools that are girls-only.
Once we move into this mindset of having religious courts in play, we start going down a slippery path. At some point, any religious practitioner will then be able to easily question the right of the courts or parliament to pass a law that affects them.
This sorts of reminds me of the situation of that lady in Malaysia who was stuck in a legal mire. She was a Muslim, and wanted to marry a Christian. But, she was unable to do so. She was not allowed as per religious law to either convert, or to marry outside her religion. Strange, is it not.

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posted by Ashish Agarwal @ 2:42 AM