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Muslim Women are India’s Neo-Untouchable Caste – The Case for Uniform Civil Code

Author: Tufail Ahmad @tufailelif
Publication: Indiafacts.org
Date: February 13, 2017
URL:   http://indiafacts.org/muslim-women-indias-neo-untouchable-caste-case-uniform-civil-code/

The rights of Muslim women to equality, liberty and dignity can be better ensured through the UCC.

Over the past year, the Jamiat Ulama-e-Hind (the Assembly of Indian Islamic Scholars) – a family-owned religious organisation whose leaders are not elected by Muslims – has been organising events across India where calls are being given to oppose the Uniform Civil Code, or UCC. Some other organisations also supporting this Islamist movement against the UCC include Jamaat-e-Islami Hind and All India Muslim Personal Law Board, a network of clerics that has nothing to do with law and has everything to do with religion. At such events, these clerics argue that India should be a secular country, but the laws should be Islamic.

Civilisation progresses when new ideas are introduced into societies from time to time. Modern civilisation is empowered by individual liberty. Today, civilisation means a social and political order in which women are equal with men in different walks of life. In other words, each day we become a shade more civilised when more women enter the streets, shops and offices – and walk alongside men in various spheres of life.

In 1950, when the Constitution ordered the Indian State to write a UCC, the objective was to ensure that Indians enjoyed individual liberty, especially when this liberty was curtailed by religion. This constitutional position is consistent with a worldwide movement during the past few centuries to separate religion from the state and law, thereby giving birth to secularism. This tussle between religion and law is still underway, with the law trying to play a bigger role in public policy and being opposed by Islamic clerics who resist the Uniform Civil Code.

The realisation that religion should be restricted to personal sphere of life and law should regulate the public sphere emerged due to religion’s murderous role in history. For example, in the 16th century, Europe witnessed a series of religious wars in which millions of people were killed. The role of Islam led to India’s Partition in 1947. The excessive role of religion has badly mauled Pakistan’s soul and its ability to be seen as a civilised nation. Islam has practically locked Saudi women within the four walls of their homes, not allowing them even to drive.

Reflecting on the relevance of UCC to guide India’s public life, Satya Prakash, the Legal Editor of The Tribune, says: “Countries where religion has been restricted to temples and churches are better places. One must remember that law belongs to public space and religion to the personal space. Since the Indian political class has failed to discharge their responsibility to draft the UCC, courts must not run away from their responsibility and must deliver positive verdicts on pertinent issues.”

Martin Luther’s Disputation Unleashed Reformation

In 1517, German monk Martin Luther (1483–1546) wrote the “Disputation on the Power of Indulgences” (popularly known as the Ninety-Five Theses) in which he called for eradicating the clerical practices not sanctioned by Christianity. The Theses – which opposed the clergy’s sale of certificates to reduce punishments for sins committed by people – were printed and distributed across Europe, giving birth to a movement of ideas known as Reformation. Though initially his Theses recalled people to the original teachings of Christianity, in the long term they generated a questioning of established religious practices in Europe and elsewhere.

Indian monk Swami Vivekananda (1863–1902) argued that sacred texts needed to be updated according to the requirements of modern times. As per “In Conversation with Swami Vivekananda” – published by the Vivekananda Kendra Prakashan Trust, the Hindu monk stressed the need for re-writing the Vedas. Vivekananda told a Brahmin disciple: “if we introduce additions and alterations in them to suit the needs of the times, codify them, and hold them up as a new model to society, why will they not pass current [i.e. become acceptable]?”

Vivekananda also forwarded the argument that the new age needed new prophets and new authors were needed to write new sanhitas, or codes. He added: “Well, we ourselves can be far greater than even Manu and Yajnavalkya if we try to, why will not our views prevail then?” Much like the Arab tribes needed new prophets such as Abraham and Muhammad, modern times need new prophets. Every individual is potentially a new prophet.

On August 3, 2014, addressing the members of Nepal’s Parliament who were writing their constitution, Indian Prime Minister Narendra Modi underlined the role of new scriptures in guiding a nation’s lives. “Some rishis authored the Vedas, someone wrote Upnishads and in some age sanhitas were written – under whose lights for thousands of year we have been organising and living our life,” he said. “In the same series, in modern-day life, a nation’s constitution too is born in the form of a new sanhita. The task of giving direction and darshan (guiding philosophy) to the new era occurs through the medium of the constitution – which was done in other eras by the rishis through the Vedas, Puranas and sanhitas. You are writing a new sanhita,” he added.

Ijtihad Used by Islamic Clerics for Counter-Reformation

In the Islamic world, the classical texts are not challenged by religious scholars whose intellectual horizons are limited by Islam. However, ijtihad – the principle of lawmaking in Islam through reasoning and consensus of Ulama (Islamic scholars) – was an accepted principle to introduce change among Muslims. Even now, some writers stress the need for ijtihad, but whenever this principle was used by Islamic scholars, the objective achieved was exactly opposite of reform. Among leading Islamic jurists, Al-Ghazali (1058–1111) is thought to have single-handedly closed the doors to ijtihad by a corpus of work which rejected Aristotle and Plato, thereby giving ascendancy to the role of god in life. Islamic jurist Ibn Taymiyyah (1263–1328) used ijtihad to produce books that support jihadist philosophy and is now known as the father of modern jihad.

Almost all Islamic organisations such as the Jamaat-e-Islami Hind, Jamiat Ulama-e-Hind, Tablighi Jamaat, Al-Qaeda, the Islamic State and the Taliban call themselves islahi (reformist) by which they stress the need for returning to the original Islam. But “original Islam” is something no one knows of and hardly clerics of different theological schools agree about such a conception of Islam. However, new ideas are engines of human civilisation, whose progress need not be fuelled by the reinterpretation of religious texts alone.

In secular democracies, politics, constitution, sports and education have emerged as major agents of social change in modern times. In 1950, the Constitution delivered a set of directives to the modern Indian State. These directives – enshrined in Articles 36-51 in Part IV of the Constitution – are known as the Directive Principles of State Policy, which are not enforceable by courts, but are an important source of law-making. Their goal is to uplift Indian citizens, especially when their rights to equality and liberty are harmed by the archaic personal laws of religious communities.

Under Article 44, the Constitution directed: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The UCC – which is not expected as a blueprint for uniform lifestyles – is supposed to be a code of rights and liberties to be guaranteed to citizens irrespective of their religious faith, caste, gender, or other creed. The Constitution was explicit that the UCC has a fundamental role to play in people’s life. The Article 37 states: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

Although Article 37 says it is “the duty of the State to apply these principles in making laws,” the Indian State, due to the policy of appeasement towards Muslims adopted by ruling parties throughout the post-Independence electoral history, has abdicated its responsibility to draft the UCC. The Modi government has launched a public consultation on writing a draft UCC that could someday be written into a law.

The Right to Religion is Available to Citizens – Not to Communities

Though the UCC is supposed to protect rights of citizens from all religious communities, the most vocal opposition has come from Indian Muslims – especially Islamic clerics who do not know what specifics would constitute such a code. The UCC is needed to protect the rights of all citizens, especially Muslim women who are increasingly knocking at the Supreme Court’s door to retrieve their right to equality, dignity and non-discrimination. These Muslim women’s rights and liberties are damaged by religion, notably in the name of the harmful practice of instant triple talaq, whereby a Muslim husband can divorce a wife by uttering talaq (divorce) thrice without recourse to courts.

This is the 68th year since the Constitution abolished untouchability. But due to the prevailing Muslim Personal Laws, Muslim women today effectively form the neo-untouchable caste of Indian Muslims. At the subconscious level, they are despised by men in the name of Islam. They are convinced by men not to sing and dance. They are forced by their fathers and brothers to wear burqa. They are commanded by men what to or not to do. Their entry to graveyards, some dargahs (shrines) and mosques is prevented by men. They are ordered by men into total submission.

All sections of Indian Muslims – Sunnis or Shias, Barelvis or Deobandis, Ismailis or Bohras – have designed burqas of different types and colours to ensure that Muslim women live a life of subjugation. Sometimes clothes are not clothes but ideas. Burqas are ideas, not clothes. Muslim women cannot even think of becoming a religious scholar because the emphasis in Islam is not in favour of teaching women because their role is not foreseen in public life.

Therefore, the UCC becomes especially relevant to ensure that the rights of Muslim women are protected, along with the rights of all other Indian citizens. The Islamic clerics have argued that the constitutional right to religion forbids the Indian State from introducing change in the Muslim Personal Laws. They say that the Muslim Personal Laws are protected by Article 25, which guarantees “Freedom of conscience and free profession, practice and propagation of religion.”

However, Article 25 is restricted by its own two sub-clauses, which make it absolutely clear that the right to religion, though a fundamental right, is subject to public health and morality. Clause (1) of Article 25 states: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” Clause (2) of Article 25 adds: “Nothing in this article shall affect the operation of any existing law or prevent the State from making any law.”

Clearly, Article 25 does not prevent the Indian State from enacting a UCC. Additionally, the judges of the Supreme Court must understand that the right to religion is available to the Indian citizen – not to religious communities or family-run non-governmental organisations such as the Jamiat Ulama-e-Hind. Ideally, when the Constitution was adopted in 1950, the Indian intellectuals, editors, authors and non-governmental organisations should have drafted a UCC to increase awareness about its beneficial role to Indians. However, this educated and liberal class of Indians abdicated its role in favour of appeasement of Muslims.

A New Sanhita – Unveiling a 12-Clause Uniform Civil Code

Realising that there is absence of intellectual discussion towards a UCC, this writer, assisted by two private citizens Satya Prakash and Siddharth Singh, wrote a 12-clause draft UCC and released it on 30 November 2016 into public domain for wider discussion. While the Indian State may or may not come out with its own draft UCC at some time, it is incumbent upon the intelligentsia in India to draft their own UCC, as many as possible, and discuss it publicly. Our draft UCC is a kind of new sanhita contextualised within a broader context of universal human rights available to people worldwide. Titled as the Universal Bill of Rights for the Indian Citizen (Ubric), the text of this draft UCC is as under:

“We the people, whose attitudes and aspirations are shaped by the Constitution, recognising that there are shortcomings in laws, adopt this Universal Bill of Rights for the Indian Citizen, as under –

“Clause 1: The fundamental right to education shall be compulsorily available to the citizen till the age of 18. Education shall not mean religious education imparted through institutions of theological nature. A child’s fundamental right to education shall override all other fundamental rights, except right to life and personal liberty under Article 21 of the Constitution.

“Clause 2: The fundamental right to religion and beliefs shall be available only to the individual, not to communities and organisations. In disputes involving an individual’s rights, the state or courts shall generally not accept interventions from organisations and groups of religious nature.

“Clause 3: Individuals, irrespective of gender, may marry under religious practices but after marriage, disputes involving divorce, joint property, child custody and alimony shall be decided under one law which shall override personal laws. No one can remarry before divorce obtained through a court. Parallel courts run by religious groups shall be deemed a criminal offence.

“Clause 4: Parliament, state legislatures and courts shall not make laws or issue orders based on religious scriptures of any community, in keeping with the secular nature of the republic. The Constitution itself shall be the source for such orders and for further legislative improvements.

“Clause 5: Citizens – irrespective of gender, religious persuasion or sexual orientation – shall a) inherit equal share in the ancestral/parental property, b) shall have equal right to adoption and will not bring up the adopted child as per their religious beliefs, and c) shall have equal right to succession. No tax benefits shall accrue to the individuals or groups for the reasons of religious and other identities.

“Clause 6: The citizen shall have unhindered freedom of thought and speech, which cannot be curtailed by the state for any reason, except when there is imminent danger to the sovereignty and territorial integrity of India. The state shall not impose restrictions on books, magazines, movies, newspapers and the like with retrospective effect from January 26, 1950.

“Clause 7: Rule of law shall apply equally to every citizen. Government officials using the laws selectively under political or other consideration against some individuals, and not against others, within their jurisdiction shall cease to hold their position from the time such an omission or commission occurs.

“Clause 8: No citizen can be held in custody for more than 24 hours, and rarely to a maximum 90 days in serious cases such as terrorism and sedition, without being charge-sheeted before a court of law.

“Clause 9: The state, through the Election Commission, shall ensure organisational and financial transparency of political parties. Political parties can accept donations only through verifiable, recorded and cashless means of financial transaction. Elections of political parties shall be organised by the Election Commission. Violations shall make them liable to be de-recognised.

“Clause 10: A citizen shall be permitted to buy, sell or transfer land throughout the territory of India. Any existing laws that contravene this provision shall be deemed null and void.

“Clause 11: All children born throughout the territory of India including Gilgit Baltistan, which being the part of Jammu & Kashmir, shall have an automatic right to be the citizen of India.

“Clause 12: Use of words that describe individuals or groups of people in a discriminatory and hateful manner (examples thereof being bhangi, chamar, kafir, munafiq and the like) shall be a criminal offence. Such words could be of religious, caste, regional, gender or other demeaning connotation. It shall be dealt with by one law.”

Currently, India is witnessing a clash between the forces of status quo represented by Islamic clerics who are supported by the Left-leaning liberal intellectuals, authors and editors on the one hand and the forces of change who advocate constitutional paths for positive change in the lives of all Indians, especially Muslim women, on the other. From the times immemorial, India always had a strong tradition of socio-religious reform. For example, the rise of Jainism and Buddhism against the ritualistic Brahminical order grew out of this Indian tradition of socio-religious reform.

However, in present times, obstructionists like the Jamiat Ulama-e-Hind and counterfeit secular Hindus who support the Islamists are trying their best to stall this very Indian process of socio-religious reform by opposing the UCC. In the 68th year of the Republic, it should be clear that the law, not religion, must be a source of liberty of Indians. While editing and rewriting religious scriptures is one way of introducing positive change in the lives of Muslim women, their rights to equality, liberty and dignity can be better ensured through the UCC, which will break many idols of our era, much like Abraham and Muhammad broke idols of their age, birthed a clash of civilisations in their times and rewrote a new global order that is on the verge of collapse at the feet of Indian democracy.

Disclaimer: The facts and opinions expressed within this article are the personal opinions of the author. IndiaFacts does not assume any responsibility or liability for the accuracy, completeness, suitability, or validity of any information in this article.

- Former BBC journalist Tufail Ahmad is the executive director of the Open Source Institute, New Delhi. Ahmad is the author of “Jihadist Threat to India – The Case for Islamic Reformation by an Indian Muslim.” He tweets @tufailelif
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