The Civil Code Tinderbox: Reform Is an Unruly Horse That Can Go Berserk Unless It Is Properly Saddled

By Moin Qazi, New Age Islam

16 July 2022

Article 44 of the Directive Principles of State Policy in the Indian Constitution Mandates That “The State Shall Endeavour To Secure For All Citizens A Uniform Civil Code Throughout The Territory Of India”

Main Points:

1.    India follows a system of legal pluralism that allows different religious communities to be governed by their own codes of personal law.

2.    The Constitution grants equal protection under the law to all citizens.

3.    In its current state, India's communities have their own set of laws where laws governing divorce among Hindus are different from those governing Muslims or Christians.

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The increasing tendency towards seeing people in terms of one dominant ‘identity’ (‘this is your duty as an American’, ‘you must commit these acts as a Muslim’, or ‘as a Chinese, you should give priority to this national engagement’) is not only an imposition of an external and arbitrary priority but also the denial of important liberty of a person who can decide on their respective loyalties to different groups (to all of which he or she belongs)

― Amartya Sen, The Idea of Justice

India follows a system of legal pluralism that allows different religious communities to be governed by their own codes of personal law. This has been seen as a way of protecting distinct communal identities and safeguarding the right of citizens to practice their faith, as enshrined in the constitution. The Constitution grants equal protection under the law to all citizens. But Muslims are governed by personal law, which came into force in 1937.

However, the authors of the constitution wanted a common set of family laws. Article 44 of the Directive Principles of state policy in the Indian Constitution mandates that “the state shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India.” On account of the intrepid opposition of Muslim members, they dropped the idea but they did not seal the issue; they left it to the wisdom of the coming generations to explore the idea of a generic set of personal laws – a uniform civil code (UCC) applicable to all Indians. The authors had realized that Muslims were intrepid in retaining their laws and the time was not ripe for the fruition of a common civil code.

The civil code tinderbox is stoked every few years by both political right and several others who keep stirring the cauldron and have been advocating a Uniform Civil Code since the framing of the Indian constitution. The issue continues to generate wattage to seed the unceasing storms, the saffron lobby is keen to push legislation that would unify India's personal laws that govern matters such as marriage, divorce, maintenance, adoption and inheritance. In its current state, India's communities have their own set of laws where laws governing divorce among Hindus are different from those governing Muslims or Christians.

Most people rooting for the enactment of UCC have a misimpression that only Muslims and Christians follow their customary or religiously ordained laws. Most Hindus continue to follow their customary practices prevalent among their respective castes, sects and communities, despite countless reforms introduced since the 1950s.

The government had been broaching the reforms gingerly till now. But with the secular agenda having undergone a seismic shift and the exclusivist machine turning into a high voltage contraption, Muslims are now in a bind. The debate has now conflagrated into a political tempest and the state, buoyed by its growing ascendancy in the political echelons, is now firmly fixated on its reforms in civil laws of religious denominations. The reforms are being packaged in welfarist and euphemistic tones projecting them as a genuine concern for the welfare of Muslim women. The centralising fetish is that this religious reform will pave the way for the redemption of all problems. We are on a hazardous route because e we are prescribing without doing the diagnosis.

Far from being a rigid set of injunctions or rules set in stone, Islamic law or shari'a—which means the “way” or “path- is an immense amalgam of texts and interpretations that have evolved along parallel paths within five major and numerous minor schools of law. Shari'a is a religious code for Muslims that covers all aspects of their life, including daily routines, and religious and familial obligations, marital affairs such as marriage and divorce and financial dealings. It was developed by religious scholars (Ulema) after the death of the Prophet Muhammad. Meant to provide moral and legal guidance to Muslims, Sha’ria is based on the Qur’an and the Sunnah-the the sayings, practices, and teachings of the Prophet Muhammad.

It is derived primarily from the Qur’an and the Sunnah. The Qur’an has about 80 verses concerning legal issues, many of which refer to the role of women in society and important family issues, such as marriage, divorce, and inheritance Precedents and analogies applied by Muslim scholars are used to address new issues.

To consolidate their control, the Sunni Ulema crystallized their legal judgments into various schools of Islamic jurisprudence: the Sunni schools, Hanbali, Maliki, Ash-Shafe’i’i, Hanafi; and the Shiite school, Ja’fari. Named after the scholars that inspired them, they differ in the weight each applies to the sources from which Shari’a is derived, namely the Qur’an, hadith, Islamic scholars, and consensus of the community. But in the absence of any universally accepted pulpit and with political currents and social winds constantly changing, legal opinions on most matters have tended to be fluid rather than fixed.

Where once Shari’a was an organic and evolving body of law, emphasizing mercy, tolerance and inclusiveness, it is now characterized as an instrument of control by post-colonial Muslim rulers searching for identity. If Prophet Muhammad’s life was revolutionary, its aftermath has seen a monological recital of hadiths and inflexible analyses of Qur’anic verses, where historical context is taken up or ignored to suit the interpreter. Memories of early Islam have hardened into dogma, and many scholars have taken the hadiths as tablets of stone, superimposing them on the Qur’an.

 Gender-just reforms are needed to help in correcting gender biases but they should be well-intentioned. The reform backers believe that the state should undertake them, to use the words of the great parliamentarian Edmund Burke, with “the cold neutrality of an impartial judge.” And to remember his words again:” No man can mortgage his injustice as a pawn for his fidelity.” The state cannot expect Muslims to jettison the core tenets of their faith.

For the Muslims, changes to Islamic law have to be made within the boundaries of the Qur’an’s teachings if they are to be legitimate. Without the cooperation of the religious scholars, who bestow this legitimacy, the masses will not embrace change. The clerics are critical in the whole equation. The predominant hardliners among their ranks are locked in a virtual and civil war with reformers.

Islam may not always be the sole factor in the repression of women. Local, social, political, economic and educational forces, as well as the prevalence of pre-Islamic customs, must also be taken into consideration. In some societies, they are a pervasive influence. But in many cases, proper application of Islamic law remains a major obstacle to the evolution of the position of women.

Muslims are apprehensive of the state’s obsession with trying to “create” a specific type of Islam, rather than allowing them the space to simply live Islam – with all its beliefs, traditions, cultures, references and various practices. They see the civil code as a seductively wrapped gender welfare intervention that can be a powerful salient, paving the way for further intrusion into their religious and cultural values. This slippery slope is not lost on Muslims who see it slouching toward a pernicious future for their faith.

 We must all understand that Islamic Laws are far from being a rigid set of injunctions or rules set in stone. Islamic law or sharia (meaning “way” or “path”) is an immense amalgam of texts and interpretations that have evolved along parallel paths within five major and numerous minor schools of law.

Shari’a is a religious code for Muslims that covers all aspects of their life, including daily routines, and religious and familial obligations, marital affairs such as marriage and divorce, and financial dealings. Gender-just reforms are needed to help in correcting gender biases but they should be well-intentioned.

A common civil code is being oversold as a silver bullet for gender justice it is not. It is certainly not going to produce the utopian conditions that are being promised as some o part f of the extravagant enticements What is urgently required is draining the swamps of Muslim poverty that are breeding unrest and frustration leading to both physical and mental violence. The opponents argue that those averse to customary law have several options. There are already several laws like the Indian Marriage Act, Indian Divorce Act, Indian Succession Act, and Indian Wards & Guardianship Act which provide a secular alternative for those who want it. This law allows Indians to marry and be governed by secular civil laws, irrespective of the faith followed by either party. Therefore, there is no need to impose on everyone a secular civil code.

The reform backers believe that the state should undertake them, to use the words of the great parliamentarian Edmund Burke, with “the cold neutrality of an impartial judge.” And by Burke’s own words, “No man can mortgage his injustice as a pawn for his fidelity.” The state cannot expect Muslims to jettison the core tenets of their faith.

For the Muslims, changes to Islamic law have to be made within the boundaries of the Qur’an’s teachings if they are to be legitimate. Without the cooperation of the religious scholars, who bestow this legitimacy, the masses will not embrace change. The clerics are critical in the whole equation. The predominant hardliners among their ranks are locked in a virtual and civil war with reformers.

They see the civil code as a seductively wrapped gender welfare intervention that can be a powerful salient, paving the way for further intrusion into their religious and cultural values.

This slippery slope is not lost on Muslims who see it slouching toward a pernicious future for their faith. The depressing social conditions of Muslim women are a phenomenon prevalent mostly among the underprivileged.

Muslim women leaders are convinced that Islam, at its core, is progressive for women and supports equal opportunities for men and women alike. They would not like to wager for a law that makes them jettison their Islamic beliefs. Deeply religious, profoundly determined and modern in every way, they are challenging not only the unjust restrictions placed on them by their own societies but also the tired stereotypes and empty generalizations placed on them by the West. They are arguing for women’s rights within an Islamic discourse.

These women are combing through centuries of Islamic jurisprudence to cull out and highlight the more progressive aspects of their religion. They are seeking accommodation between a modern role for women and the Islamic values that more than a billion people in the world follow. Some of the leading proponents are men—distinguished scholars who contend that Islam was radically egalitarian for its time and remains so in many of its texts.

There is a long list of hadiths (Prophet’s sayings) and Qur’anic verses to support women’s rights: the right to education; the right to work and their right to keep the money they earn. It is much easier for the media to reduce the complex debate on the Uniform Civil Code to a series of clichés, slogans and sound bites, rather than examining root causes.

There are numerous examples where personal laws and secular laws coexist.in fact, the deliberations of India’s Constituent Assembly which framed the Constitution clearly show that the Uniform Civil Code was not the ultimate mandate.

Sir B N Rau, the constitutional advisor to the Constituent Assembly, stated that the Directive Principles are intended as ‘moral precepts for the authorities of the state. They have at least an educative value.’ The great jurist Sir Ivor Jennings thought they were only ‘pious aspirations’.

The architect and key constitution maker Dr. Ambedkar was very emphatic:

“There is no obligation upon the State to do away with personal laws. It is only giving power. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians, or by any other community in India.”

Reform is an unruly horse that can go berserk unless it is properly saddled. The modern trend is for acceptance of diversity. It is equally important for the Muslim theocracy to understand its proper role: Call it religious policing, cultural policing, guardian policing, family policing and community policing. The many names share one vision: a humane, compassionate, culturally refined system with a mind-set of respect and demonstrable concern for improving the wellbeing of women particularly when they have been assigned a very exalted position both by the Qur’an and Its Messenger.

The community’s social codes do not truly guarantee women a secure place to them as citizens equal to men; such attitudes are preserved by patriarchal and cultural traditions, as well as the continued twisting of Islamic injunctions to suit the needs of misogynists. The reality of Muslim women continues to confound easy categorization. They have been going to school and university, holding down jobs and earning money for several generations now. Yet they still live with widespread gender-based biases.

In The Reconstruction of Religious Thought in Islam, the legendary philosopher-poet Sir Muhammad Iqbal wrote,

“In view of the intense conservatism of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the people are moving, the law remains stationary.”

To those opposed to reformist ideals, let us remind them of legendary poet Iqbal’s assertion: “[t]he teaching of the Qur’an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.”

Treating women with the inherent dignity that they were created with, and ensuring that they are given equitable opportunities to succeed is necessary to uphold the Qur’anic vision, “O you who have attained to faith! Be ever steadfast in upholding justice.” (Q4:135)

The path ahead lies in importing some of the progressive reforms so that our personal laws regain vibrancy and can effectively respond to the new realities. The Indian Muslim leadership should allow the winds of reforms in the Islamosphere to blow in.

Confining itself to sterile thinking will only strengthen the case of several eminent scholars including international Muslim feminists like Mernissi who strongly feel that the necessary emancipation and equality for the subaltern Indian Muslim female will not be possible without bringing her under the protection of a Uniform Civil Code.

The whole conflict is on account of the same naïve logic: cherry-picking of facts -a tendency to fasten onto evidence consistent with your worldview and ignore or downplay contrary evidence. The adherents of a religion focus on those portions of scriptures that confirm their attitudes and ignore those that don’t. And they latch that tunnel vision onto their own scripture; if there is hatred in their hearts, they’ll carry it onto the hateful parts of scripture, but if there’s not, they won’t. Similarly, that intent on doing mischief with the scriptures cull selective passages palatable to their viewpoint and quotes them without their contextual relevance, thereby distorting the actual truth.

For now, the purists – both the conservatives and the more aggressive radicals are bristling at the prospect of the courts intervening in what they think is their exclusive preserve and, are saying the community itself will reform unjust practices. It is very clear, that after the recent convulsions the community’ has grown wiser.

Both the traditionalists and reformists should understand about the deep wisdom of the modern conflict management guru, Stephen Covey: “Seek first to understand, then to be understood.” Gandhi’s mantra holds good for every problem on earth: “I hold that it is the duty of every cultured man or woman to read sympathetically the scriptures of the world. If we are to respect others’ religions as we would have them to respect our own, a friendly study of the world’s religions is a sacred duty.”

India has been a flag bearer of pluralism and has always held the candle of tolerance; mutual respect and peaceful coexistence alienating one-fifth of its population will not help the country and will be against the spirit of its centuries-old and hallowed ethos.

We can solve the toughest problems if we imbibe the true spirit of the nation’s oft-repeated mantra: “Sabka Saath, Sabka Vikas” (partnership of all, development for all).

The well-known political historian Sunil Khilnani has a very poignant paragraph in his famous book The Idea of India, which is very relevant in the present situation:

“If one looks beneath the messy confusion and black arts of India’s politics, one sees in its democratic experience evidence of something that James Madison and his Federalist colleagues well understood more than two hundred years ago. Large republics with diverse and conflicting interests can be a better home for liberty, a safer haven against tyranny, than homogeneous and exclusive ones. Within them, factions can check one another, moderating ideological fervour and softening power.”

Human desire in its bare essence is animalistic and somewhat selfish. It has been the evolution of teachings of the faith that has kept in check much of our primitive needs for constant self-gratification Scriptures are meant for the good of human societies. They rest on the strong legs of justice, kindness and wisdom. There will always be animal spirits. Humans have both angelic and satanic traits. We have the means of taming them – laws for punishing them, norms for shaming them, and cures for healing them. Let us not in our imperfect understanding or prejudice throw the baby out with the bathwater.

It is a virtual cycle that transforms your worldview. The biggest problems facing Muslim women today are economic. They are not likely to be solved with civil rights remedies, but they could be relieved with public and private action to encourage economic redevelopment. More than religious redemption women need economic redemption.

Aharon Layish wrote a paper in July 1973 on “The Shari’a in Israel”. Israel’s Shari’a court system is more efficient than the civil law alternative. While it is also evolving in conjunction with the demands of an ‘open, modern, and developed’ society. Israel’s religious courts feature as part of the judicial system with applicants having the option of choosing whether to lodge cases in the religious or civil courts.

Shari’a courts in Israel are informed by the Hanafi legal school of Sunni jurisprudence, while laws in place since the days of the Ottoman Empire also remained in force.

Reform is an unruly horse that can go berserk unless it is properly saddled. The modern trend is for acceptance of diversity. It is equally important for the Muslim theocracy to understand its proper role, call it religious policing, cultural policing, guardian policing, family policing, and community policing.

The many names share one vision: a humane, compassionate, culturally refined system with a mind-set of respect and demonstrable concern for improving the wellbeing of women. Especially when women have been assigned a very exalted position both by the Qur’an and its Messenger.

Muslims of today are now a progressive generation. They’ve very whole-heartedly embraced efforts to do away with many of their obscurantist customs and traditions that are not supported by Qurán.

Despite a large clergy being in favour of the retention of the triple talaq, mainstream Muslims were never supportive of this obnoxious practice. Their main opposition to triple talaq was to the government‘s legislative intent in trying to criminalise it and instill the overtly reformist legislation with an odious agenda.

He was himself a very progressive and forward-looking Muslim, who saw to it that his children studied in the country’s premier institutions.

There is a connection between religious diversity, freedom, and growth. If they hadn’t found a way to live together, religious communities could have never created a society that would function as one.

And, contrary to the fears of many, religious freedom has been important as a cultural and moral force. We must understand that all divine texts share common themes to preserve human spirituality.

No concept of prosperity, social advancement, or human rights will weaken the eternal influence of divine texts. Normative deviations from divine texts are transient. But the spiritual needs that divine texts fulfil are permanent. So is the Qur’an which exerts an extraordinary moral influence in the life of an ordinary Muslim.

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Moin Qazi is the author of the bestselling book, Village Diary of a Heretic Banker. He has worked in the development finance sector for almost four decades.

URL:   https://newageislam.com/islam-politics/civil-code-tinderbox-reform-/d/127490

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