Hindutva’s stick against Muslims

An enlightening piece! Mike Ghouse

Hindutva’s stick

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Hindutva groups use the idea of a uniform civil code as a stick to beat the minorities with, an enterprise that finds an answering echo in judicial zeal informed by poor scholarship. By A.G. NOORANI

Shiv Sena chief Uddhav Thackeray deserves kudos for exposing the hypocrisy of the Sangh Parivar, of which his own party is a member, albeit a small and noisy one. On October 22, he said at the Sena’s annual Dussehra rally in Mumbai’s Shivaji Park: “They should first announce that this country is a Hindu rashtra and impose the uniform civil code” (emphasis added, throughout). “They” refers to the senior partner, the Bharatiya Janata Party (BJP), whose long-standing triple agenda is a Ram temple at Ayodhya, abrogation of Article 370 of the Constitution, and a uniform civil code. The word “impose” bluntly prescribes the approach that others prefer to veil. On August 5, 1989 ,Organiser, the organ of the Parivar, quoted the then BJP president, L.K. Advani, as proudly telling BBC, “It would not be wrong to call the BJP a Hindu party.” He said on November 19, 1990: “Henceforth only those who fight for Hindu interests would rule India.” For good measure, he complained on October 20, 1990, that “secular policy is putting unreasonable restrictions on Hindu aspirations”.

The advocacy of a uniform civil code is an integral part of this ethos. It is not motivated by a desire for reform but by a lust for uniformity in the Hindutva mould. Men who have no sympathy for Muslim women whose husbands, brothers and sons were killed by the goons of the Hindutva brigade, without so much as a rebuke by the Parivar chief, are not inspired by lofty considerations. Their target is Muslim Personal Law, and they want to erase it from the statute book because it signifies Muslim identity.

India is a land of continental dimensions. Consider the conciliatory moves made by Canada’s national government in recent decades to support Quebec’s distinct identity, with its language, culture and laws. The United Kingdom has two different systems ofcriminal law. Scottish law recognises the plea of “not proven”; English law does not. There is no national Bar. England has barristers; Scotland has advocates. The catchphrase “national integration” is calculated to mislead. Sri Lanka’s Muslims are well integrated with the nation. They have their own personal laws.

In 1979, the Rashtriya Swayamsewak Sangh (RSS) opposed the establishment of the Minorities Commission and insisted that a Human Rights Commission would suffice. This is because, fundamentally, it rejects the very concept of minorities. The demand for imposition of a uniform civil code has figured in every election manifesto of the BJP, and earlier in the manifestos of the Jana Sangh. The approach is totally at variance with the one adopted by genuine reformers of high credentials as secularists. The universally respected Romila Thapar leads this school. In her recent lecture in Mumbai she advocated a persuasive approach.

The real issue

The real issue is not the civil code. It is reform of Muslim Personal Law, which flagrantly violates the Sharia, the law ordained by the Quran. The perverted law now in force is oppressive to women, specifically the arbitrary triple divorce and polygamy. It is not Sharia that is followed in this but the “Anglo-Muhammadan” law of British times. The All India Muslim Personal Law Board is in the grip of dinosaurs. A besieged community is a conservative community. It clings to what is left of its identity. Since Independence, the Muslim community has been exploited either by the “sarkari musalman” who acts as adalal (agent) between the state and the country’s Muslims, the quintessential Uncle Tom, or the reactionaries who control the board or the bogus secularism of some “secular” parties.

Jawaharlal Nehru had to wage a battle within his own party, the Congress, against Hindu communalists. Muslims witnessed his helplessness, suffered in the never-ending riots, saw the erosion of constitutional safeguards and the attacks on Urdu, and faced the wrath of the rising forces of Hindutva. They withdrew into their own suffocating shell. The nation is poorer for that.

The issue, then, is the reform of Muslim Personal Law. Pressures for its abrogation by the uniform civil code retard the progress for reform. Professor J.N.D. Anderson noted: “It is the family law that has always represented the very heart of the shariah, for it is the part of the law that is regarded by Muslims as entering into the very warp and woof of their religion.” It has been “basic to Islamic society down the centuries”. This was why in 1931 the Congress Working Committee declared that “personal laws shall be protected by specific provisions to be embodied in the Constitution”. Nehru assured Mohammad Ali Jinnah, in a letter dated April 6, 1938, that the Congress had “declared that it does not wish to interfere in any way with the personal law of any community”. Law Minister G.S. Pathak said in the Lok Sabha on May 17, 1966, that “personal laws are mixed up with religion” and that “we cannot coerce people to accept our views about their religion and customs”. Earlier, a similar assurance was given in the Lok Sabha by Law Minister A.K. Sen on August 29, 1963.

The constitutional position

Relevant are two provisions of the Constitution and a basic principle of jurisprudence. Article 37 says emphatically, a propos the Directive Principles of State Policy laid down in Part IV of the Constitution: “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.” On any honest construction, this means legislation of the legislatures, not legislation in the guise of adjudication by the courts.

In contrast, the Fundamental Rights are enforceable by the courts (Articles 32 and 226). Likewise, when Article 44 directs “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”, it means the legislature comprising elected representatives of the people and aware of the realities and the feelings of the people. They are allowed a wide margin of discretion—“shall endeavour”. It does not mean unelected judges, sitting in an ivory tower, presuming to legislate. That is, to use the words of Lord Simonds, “a naked usurpation of the legislative function under the thin disguise of interpretation” (Magor and St. Mellons Rural District Councils vs Newport Corporation (1952) AC 189 at 191).

The Supreme Court is not entitled at all to direct Parliament to legislate. Justice K.S. Hegde of the Supreme Court said in 1971: “No court can issue a mandate to a legislature to enact a particular law. Similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact” (Narinder Chand Hem Raj v. Lt. Governor, Administrator Union Territory, Himachal Pradesh (1971), 2 SCC 747 at p. 75, (Para 7). In 1989, the Supreme Court reaffirmed these principles: “There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority” (Supreme Court Employees Welfare Association vs Union of India(1989) 4 SCC 187 at p. 219 (Para 51).

Intent of the framers of the Constitution

No court of law can ignore the distinction and override the clear intent of the framers of the Constitution reflected in a closely reasoned debate. It is excellently summed up by Granville Austin in his masterpiece The Indian Constitution: Cornerstone of a Nation(1966): “The sub-committee (on Fundamental Rights) decided to introduce the Directive Principles of Social Policy, as they were then called, with a Preamble explaining that they were for the general guidance of the government and were not cognizable in any court.The break with the Fundamental Rights had been made. The members went on to adopt provisions based on Sir B.N. Rau’s draft to the effect that the state should raise the level of nutrition and the standard of living of the people, and promote international peace and just dealings between nations. Certain changes and counter-changes were made during the next several weeks, but, in general, the first stage of drafting the Directive Principles was over.

“The framing of the provision regarding a uniform civil code provides an interesting aside to the sub-committee’s work. In India in 1947, despite the inroads on personal law during the British period, many Indians lived their lives untouched by secular law, whether civil or criminal. The idea of a uniform civil code, therefore, struck at the heart of custom and orthodoxy, Hindu, Muslim, and Sikh. During the days when the Principles were to be justiciable, Minoo Masani moved in a sub-committee meeting that it was the state’s responsibility to establish a uniform code, in order to get rid of these water-tight compartments, as he called them. The members voted against the recommendation, five to four, on the ground that it was beyond the sub-committee’s competence. Yet, two days later the members approved the inclusion of the provision, but only after it had been decided to create a non-justiciable section of the rights where the clause could be put. The reason behind these actions was not, as it might at first appear, the wish to avoid a clash with Hindu orthodoxy, but a sensitivity, particularly on Nehru’s part, to the fears of the Muslims and the Sikhs. Had the provision been in the rights, it would have been justiciable and perforce applicable equally to all communities.” Thus, Parliament alone was to “endeavour” to frame the uniform civil code in its discretion. Note, the Rights and Directives were drafted by one and the same body.

Article 44 figured as Article 35 in the draft Constitution. It was debated in the Constituent Assembly on November 23, 1948 (Constituent Assembly Debates, Volume 7, pages 540-552). A member of the Assembly’s Drafting committee, Sir Alladi Krishnaswamy Ayyar, said: “The Future Legislatures may attempt a uniform civil code or they may not” (page 550).

The Chairman of the Drafting Committee, Dr B.R. Ambedkar said: “I quite realise their feelings in the matter, but I think they have read rather too much into Article 35, which merely proposes that the state shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed, the state shall enforce it upon all citizens merely because they are citizens.” That the Sangh Parivar adopts this very approach is perfectly understandable. What is disturbing is that, as will be pointed out, judges of the Supreme Court, in their zeal for reform, have also taken this hard line from 1985 to 2015.

Contrast this with Ambedkar’s statesmanlike attitude, a few days later on December 2, 1948: “It is, therefore, quite impossible for anyone to conceive that the personal law shall be excluded from the jurisdiction of the state. Having said that, I should also like to point out that all that the state is claiming in this matter is a power to legislate. There is no obligation upon the state to do away with personal laws. It is only giving a 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.

“We must all remember—including Members of the Muslim community who have spoken on this subject, though one can appreciate their feelings very well—that sovereignty is always limited, no matter even if you assert that it is unlimited, becausesovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. 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. But that is a matter which relates to the exercise of the power and not to the power itself” (pages 781-2). If the government should not, neither should the Supreme Court.

Double standards

Interestingly, Parliament itself has disabled itself from enacting the coveted code “throughout the territory of India”—which is what uniformity requires. There is Article 370 on Kashmir’s special status, which the BJP wants to abrogate. The Centre’s uniform civil code cannot extend to that state. Those who cavil at Article 370 and shout for the code are strangely silent on Articles 371A and 371G. These are special provisions with respect to the States of Nagaland and Sikkim, respectively. They embody a compact on the basis of which the provisions were enacted. Article 371A(1) says: “(1) Notwithstanding anything in this Constitution, (a) no act of Parliament in respect of—(i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the state of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.” An identical provision is made for Mizoram.

In both cases it is left to the people to decide whether or not to change their personal law—the very principle that Parliament has respected on Muslim Personal Law. If double standards are being applied, it is because the BJP aspires to obliterate Muslim identity, while the zealous reformist yearns for a destructive uniformity.

Limits of sovereignty

Unlike the arid legalism of some lawyers and judges, Ambedkar was steeped in constitutional law which, as Justice Felix Frankfurter said, is “but applied politics, using the word in its noble sense”. It was left to the great A.V. Dicey to point out forcefully the internal and external limitations that are inherent even in the British parliament, which is not fettered by a written Constitution.

“Everyone, again, knows as a matter of common sense that, whatever lawyers may say, the sovereign power of Parliament is not unlimited, and that King, Lords, and Commons united do not possess anything like that ‘restricted omnipotence’—if the term may be excused —which is the utmost authority ascribable to any human institution. There are many enactments, and these laws not in themselves obviously unwise or tyrannical, which Parliament never would and (to speak plainly) never could pass. If the doctrine of parliamentary sovereignty involves the attribution of unrestricted power to Parliament, the dogma is no better than a legal fiction, and certainly is not worth the stress here laid upon it.”

The internal limitation is the outlook of the members of a parliament; the external limitation is the sentiment of the people: “the possibility or certainty that his (the omnipotent King’s) subjects, or a large number of them, will disobey or resist his laws” or rise in revolt. “What is true of the power of a despot or of the authority of a constituent assembly is specially true of the sovereignty of Parliament; it is limited on every side by the possibility of popular resistance” (An Introduction to the Study of the Law of the Constitution; pages 71 and 79).

This is the first part of a two-part article.

Muslim response to AIPMLB

MIKE GHOUSE FOR INDIA | http://mikeghouseforindia.blogspot.com/2015/06/muslim-response-to-aipmlb.html

Suggestions to Muslim Personal Law board.

While applauding the position taken by the All India Muslims Personal Law Board (AIMPLB), we hereby acknowledge a few key points about the politics of International Yoga Day and pleased to make a few suggestions. It is a delicate issue, and I pray that Muslims will follow the principles set in motion by Prophet Muhammad (pbuh) and commit to mitigating the conflicts and nurturing goodwill for the common good of the society.

The AIMPLB  sent a letter to these bodies and individuals, Maulana Wali Rehmani, working general secretary of the AIMPLB, has asked for constant vigil against attacks on Islam’s teachings. AIMPLB has also targeted the central government for propagating yoga, surya namaskar and vande matram, “which are part of Brahmin Dharma” and “are against the ideology of Muslims”.

Muslims, Rehmani has said in the letter, must be aware of their ideology, and must research extensively before agreeing to accept any suggestions on changing their beliefs. The government, he has alleged, has been pushing activities like yoga only to hide its failures on poll promises such as controlling prices and retrieving black money stashed abroad.

Acknowledgements;

1. Muslims are not concerned about Yoga, it's been around as long as they know,  but  they are concerned about the agenda of Hinduizing Muslims that is birthing in series of actions. It is a legitimate jungle after the Ghar Wapsi Drama.

2. While Mr. Modi wants to uplift the nation, his bhakts in his name are messing up the cohesive fabric of the nation. Making statements like, “those who are opposed to should jump in to the sea – Yogi Adityanath.” Who is he to tell me that? If I were to face him, I will tell him to take the lead and go jump in chillu bhar pani (fistful of water).  

3. The Opportunist French man François Gautier writes, "By opposing yoga in schools they (Muslims) are showing that they are Muslims first and Indians second." Gautier is hell bent on placing wedges between Hindus and Muslims; we have seen the likes of him in Cornwallis and Wellesley who succeeded in the past, do we want men like him to continue to dupe and divide us?

4. A few extremists among Hindus look to it as a stepping stone for fulfillment of their dream of pushing India to become a 100% Hindu Nation, completely ignoring the teachings of Hinduism and the idea of Vasudhaiva Kutumbukum and our pluralistic heritage of live and let live.  Can we call them legitimate Hindus? Their acts are certainly not Hindu. 

Suggestions;  

1. Congratulate Mr. Modi for creating a successful day of Yoga, we are proud of the Hindu heritage and its benefits to humanity.

 2. Thank the opposition and the GOI for withdrawing the compulsory clause demanding participation from every Indian.

3. The role of leaders, Muslim or otherwise is to advise, but not to mandate it; we leave it up to the individuals to exercise their choice of participating or not in the exercise of Yoga.

4. We are proud of India, and want to preserve its character of free pluralistic democratic nation, where we respect the otherness of others and not impose our ideals on others.  We do not want India to emulate Saudi Arabia or Pakistan where the minorities are pushed into observing Ramadan. We want others to copy the Indian model where every human has a right to eat, drink, wear and believe whatever he or she wants to believe.

5. Let them tear India down; we will put it back together. 

6. We are proud of our heritage – a pluralistic democracy where each individual follows his own conscience in being a productive citizen of the collective nation.

Yoga Day, a wrong approach by Government of India
Yoga is the best thing that has happened to humans. It is good for human body as it  increases the cohesive functioning of mind, body and the soul. What messes our body is what we consume; food, water and air, and its regulator in the form of exercise. 
https://www.saddahaq.com/politics/yogaday/yoga-day-a-wrong-approach-by-government-of-india

Modi's bubble and the Chamcha CulturePrime Minister Modi is making all the classic mistakes of a man sitting inside the bubble, oblivious of the chaos outside the thin veil of the bubble. The men who keep him in euphoric status are called “Chumchas” – the “Yes men” of India who will ultimately let their bosses fall from grace. Full article at: http://www.countercurrents.org/ghouse050615.htm

Surya Namaskar and Muslim Response

The Surya Namaskar is a Hindu religious tradition, a beautiful act of bowing to the Sun and welcoming the first rays of dawn as an expression of gratitude to the energy it breathes in to life and everything about life.http://theghousediary.blogspot.com/2012/01/surya-namaskar-and-muslim-response.html

To be a Muslim is to be a peace maker, one who seeks to mitigate conflicts and nurtures goodwill for peaceful co-existence of humanity. Mike is a Muslim speaker, thinker, writer, pluralist,  TV-Radio commentator and a human rights activist committed to building cohesive societies and offers pluralistic solutions on issues of the day. His info in 63 links at MikeGhouse.net and writings at TheGhouseDiary.com

All India Muslim Personal Law Board

In a letter sent to these bodies and individuals, Maulana Wali Rehmani, working general secretary of the AIMPLB, has asked for constant vigil against attacks on Islam’s teachings.

Written by Mohd Faisal Fareed | Lucknow | Updated: June 23, 2015 6:15 am

The All India Muslim Personal Law Board (AIMPLB) has come out openly against what it calls is the rising influence of “Brahmin Dharma and Vedic culture (that) are out to harm Islamic beliefs by all means”.

The Board, which positions itself as a spokesperson of Muslim opinion in India and the chief custodian of Muslim personal law and the Shariat, has, for the first time, reached out directly to Muslim organisations, institutions and the imams of mosques in an appeal to close ranks against the forces of Hindutva.

In a letter sent to these bodies and individuals, Maulana Wali Rehmani, working general secretary of the AIMPLB, has asked for constant vigil against attacks on Islam’s teachings. AIMPLB has also targeted the central government for propagating yoga, surya namaskar and vande matram, “which are part of Brahmin Dharma” and “are against the ideology of Muslims”.

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Rehmani has alleged that the celebration of the International Day of Yoga by the government on Sunday was part of a conspiracy to link the exercise to the RSS, since it was observed on the death anniversary of the Sangh’s first sarsanghchalak, K B Hedgewar.

The letter does not use the expression “Hindu Dharma”, and refers instead to “Brahmin dharma”, possibly in order to reach out to Dalit Hindus.

Rehmani has referred to Chapter 6 of the Gita to argue that yoga is a religious activity, and a part of “Brahmin Dharma and Vedic culture”. He has mentioned several organisations who have allegedly used the Centre’s yoga push to propagate Vedic culture — a violation of the Constitution, which does not allow the promotion of religious activities by the government.

“Muslims should always remain cautious as there are organisations that are attacking Islamic beliefs and trying to impose Brahmin dharma. All this yoga, surya namaskar and Vedic culture are part of Brahmin dharma and are totally against Islamic beliefs,” Rehmani has said in his letter.

He has urged the imams to discuss the subject during Friday sermons, and prepare the Muslim community for a movement.

”I have written a letter to members of the AIMPLB,” Maulana Rehmani told The Indian Express. Asked how the letter had reached other Muslim organisations as well, he said, “Obviously, we are expanding our area and including other Muslim organisations in our movement. The Board has a limited number of members, but in order to create awareness, we have to expand our horizons.”

Muslims, Rehmani has said in the letter, must be aware of their ideology, and must research extensively before agreeing to accept any suggestions on changing their beliefs. The government, he has alleged, has been pushing activities like yoga only to hide its failures on poll promises such as controlling prices and retrieving black money stashed abroad.

At its working committee meeting in Lucknow on June 7, AIMPLB had passed a resolution against yoga, saying it was un-Islamic.

First Published on: June 23, 2015 3:44 am

BJP's rhetoric on Uniform Code undermined by its silence on laws favouring majority

Uniform Civil Code goes against the grain of freedom. No government should tell you or me what I eat, drink, wear of believe. The Government can and must hold you responsible for messing with others food, space and loved ones. This is the arrogance of one group over the other showing them their place - this is the evil of the society we need to work on eradicating.

Mike Ghouse
www.MikeGhouse.net

HINDU APOSTASY LAWS?

Courtesy of  Scroll

rom apostasy laws to differential tax rules, there is no dearth of legislation in India based on religion. Adding these to its reform list would make the BJP’s job of introducing a UCC that much easier.

Shoaib Daniyal · a day ago

The Bharatiya Janata Party’s resounding win in the Lok Sabha elections has brought one of its pet issues back into focus: the establishment of a Uniform Civil Code to replace the current system by which followers of different faiths are subject to religious personal laws relating to marriage, inheritance and other matters.

In theory, the argument that religion should play no role in the laws of a secular republic is difficult to refute and indeed the establishment of a progressive legal code would do much good. But in practice, the BJP’s rather high-pitched espousal of the UCC has perhaps done more harm to the cause than help it.

The party’s portrayal of religious personal law as the one barrier standing between India and “true” secularism is hyperbolic. The situation is far more complex. Contrary to common knowledge, religious personal laws in India have not been static. Significant parts of these codes, especially those relating to minority communities, have already been reformed as a result of legal intervention resulting from cases challenging these statutes.

For instance, despite Rajiv Gandhi’s decision to reverse a court decision in 1985 Shah Bano case ordering a Muslim man to pay his wife maintenance, the courts have reaffirmed the rights of Muslim women to alimony. The egregious triple talaq rule was overruled in the Shamim Ara case in 2002, which held that the husband did not have a unilateral right to verbal divorce when there was “no substantial evidence” of the man having pronounced the three words.

It is rarely acknowledged but there are a number of other provisions in India that work on explicitly religious or communal principles, all of which are also in urgent need of reform. On these the BJP has maintained a studied silence, in some cases even propagating them. The notable provisions are listed below:

Gujarat’s apostasy law: it might come as a surprise that India has an apostasy law, but in 2003, a time of great communal polarisation, the Gujarat legislature passed the Freedom of Religion Act, a wonderfully Orwellian name for a law that restricts religious freedom. The act made it mandatory for a person converting to another religion to take permission from the district magistrate first. Only if the district magistrate is convinced that the convert has undergone a true religious transformation is the change allowed. That an ostensibly secular state sits in judgment of whether a person’s religious choice is true or fraudulent might have been funny, if it wasn’t for the four-year jail sentence the law carries.
Gujarat’s Disturbed Areas Act: In Gujarat it is illegal for Hindus and Muslims to enter into a property transaction unless it has the permission of the government. As of 2013, 40% of Ahmedabad was notified under the act. While religious ghettoisation is a fact in most Indian cities, this legislation makes it official government policy.
Religion-based reservations: A Presidential Order dating back to 1950 makes all non-Hindu Dalits ineligible for Scheduled Caste reservations, saying only Hindu Dalits can avail of reservations in government jobs, higher education and legislative bodies. This was amended to include Sikh Dalits in 1956 and Buddhist Dalits in 1990, but it has still not been extended to the other religious groups. This also means that Christian and Muslim Dalits are not protected against anti-Scheduled Caste atrocity legislation.
Tax breaks on the basis of religion: A well-known yet oddly uncontroversial measure, the Hindu Undivided Family provides, in the words of T Ramanujam, “almost a perfect medium for tax avoidance”. It is open only to Hindus, Sikhs, Jains and Buddhists.

Though legal intervention is helping to reform religious law, the process is slow and haphazard, very often depending on the interpretation of a single judge. In such a situation, the establishment of a standard, progressive UCC would help by speeding up the reform and making them available to all Indians at a stroke. As the reform of Hindu personal law in the 1950s showed, the benefits of such a move would be wide-reaching.

Given the physical insecurities of religious minorities in India, however, introducing a UCC will be difficult. It is strange that the party that is its greatest proponent, the BJP, simultaneously champions theological issues such as temple construction and the mainstreaming of Hindu systems of medicine. This has led to fears that the UCC will be used to marginalise the interests of minority communities while submitting to majoritarian impulses.

If it is serious about introducing a UCC, the BJP, and consequently the government, must adopt a principled stand against all religion-based laws, working concurrently to remove discriminatory legislation, such as those discussed above. In this bundled approach lies the best chance of introducing a uniform code.