By Moin Qazi
India follows a system of legal pluralism that allows different religious communities to be governed by their 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. That being said, Muslims are governed by the personal law, which came into force in 1937. However, the authors of the Constitution wanted a standard set of family laws. The civil code tinderbox is stoked every few years by both the 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 continual quarrels and the dialectics of history.
Critical Considerations of implementing uniform civil code
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 Muslims, changes to Islamic law have to be made within the boundaries of the Quran’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 and the prevalence of pre-Islamic customs must also be considered. In some societies, they are a pervasive influence. But, in many cases, the proper application of Islamic law remains a significant obstacle to the evolution of the position of women.
The mindset of Indian Muslims
Muslims are apprehensive of the state’s obsession with trying to “create” a specific type of Islam, rather than allowing them space to 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 as slouching toward a pernicious future for their faith. The painful social conditions of Muslim women are prevalent among the underprivileged. In the economically improved strata of Muslims, the sort of oppressive practices being discussed is a rarity. Poverty is the root cause of obscurantism in Muslim families. Economic empowerment is one tide that lifts all the boats. It enables you to provide better education, better housing and better healthcare. 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, they need economic redemption. The need for educational and financial empowerment of these women is of utmost critical importance. Economic redemption is more important for Muslim society than religious redemption.
Misinterpreting the civil code
A standard civil code is being oversold as a silver bullet for gender justice which it is not. It is certainly not going to produce the ideological conditions that are being promised. What is urgently required is draining the swamps of Muslim poverty, breeding unrest and frustration, leading to physical and mental violence. The opponents argue that those opposed 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 a secular civil code on everyone. Reform is an unruly horse that can go berserk unless adequately saddled. The modern trend is for the acceptance of diversity. It is equally essential for the Muslim theocracy to understand their proper role: 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 mindset of respect and a demonstrable concern for improving women’s well-being, particularly when they have been assigned a very exalted position by the Qur’an and Its Messenger.
The community’s social codes do not indeed 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 categorisation. 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 standard works. The result is that the law remains stationary while the people are moving.”
To those opposed to reformist ideas, 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 problems.”
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. He can be reached at email@example.com