Home Blog Page 2127

Uttarakhand HC notice to CEC, officials directed to preserve EVMs from constituency won by BJP candidate

0

The Uttarakhand High Court today issued notices against Central Election Commission, the State Election Commission and BJP’s Vikasnagar MLA, Munna Singh Chauhan, in response to a petition on EVM tampering.

uttarakhand High Court

According to news agency ANI, the High Court has directed the authorities to preserve the EVMs.

In the elections held in February this year Chauhan had defeated the Congress candidate, Navprabhat by over 6,000 votes.

Former Uttarakhand Chief Minister Harish Rawat had hinted at possible tampering of EVMs to tweak the poll outcome in Uttarakhand.

He had told reporters, “I want to thank ‘Modi Kranti’ (revolution) and EVM ‘chamatkar’ (miracle)… You know everything. I am not confusing you. I leave it to you to understand.”

In recent months several non-BJP parties have alleged tampering of the electronic voting machines by those allied to Hindutva.

The Aam Aadmi Party had blamed EVM tampering for the latest electoral success of the BJP in the MCD polls, where the latter won more than 180 seats despite 10 years of anti-incumbency and alleged misrule.

On repeated requests from the Chief Election Commissioner (CEC) for VVPAT (voter verifiable printer audit trail) equipment to attach to EVMs, the Modi government has recently sanctioned Rs 3,000 for the purpose. The CEC proposes to use only VVPAT enabled EVMs for the next general elections due in 2019.

Hindu nationalism and Muslim nationalism co-produce each other: Khalid Anis Ansari

0

In this episode of the Ambedkar Age series, Round Table India talks to Prof. Khalid Anis Ansari, Director, Dr. Ambedkar Centre for Exclusion Studies & Transformative Action (ACESTA), Glocal University, Uttar Pradesh.

khalid

The interview focuses on the Pasmanda movement, on the issues of secularism/communalism and on the upper caste hegemony in all political, cultural and social fields in India. The interview was conducted by Kuffir, Contributing Editor, Round Table India, and produced by Gurinder Azad.
You can watch the full video here: https://www.youtube.com/watch?v=xWeeaXADPBw

Continued from here
~

Kuffir: Yes, definitely a time to re-think, but there is also the question of a larger Muslim victimhood not being a totally invented narrative. It is also a reality and Dalit victimhood is also a reality. And there have been lots of riots in the thousands, which have been almost genocidal in nature.
As you were discussing the Pasmanda and how they are affected by all these larger politics, is there a kind of awareness among all the Pasmanda, at least in Bihar-UP, that they have been used and they are being used and they are not getting any representation? Even if you start with the question of representation at least, you get a certain number of MLAs, a certain number at least in the Municipal Corporation as corporators….panchayat representatives – is this happening? Is it converting into any kind of real terms? Because they have not been guaranteed even the reserved seats. What do you think of that? What is the situation rather?
Khalid: There are two things. One, continuing with this communalism; there is a realisation that whether by default or by design, that this entire communalism discourse, whether the manufacture of communal riots, manufacture of islamophobia – it has worked to their disadvantage. Of the broad bahujan groups across religions. Whether it is Hindu Bahujans, whether it is Muslim Bahujans. Mostly the Muslim Bahujans have been at the receiving end, but because of this secular-communal discourse, their core issues – the issues of bread and butter, are absolutely side-lined. So there is that realization, and that realization is being circulated; more and more Pasmanda people are sharing this sentiment that we need a political brand, or that we need a political articulation that helps us in transcending this secular-communal binary; in transcending this majority-minority binary, and if we are not able to transcend this, then our core concerns will never be placed on the table. And Pasmanda movement is a very early, tentative articulation from the Pasmanda Muslims. It’s an attempt to really transcend these binaries, so that at least our real issues, our core issues, might be addressed. The issue of representation, the issue of land; how is land allocated in India, who gets what – those are the key issues. Issues of power, issues of representation in media, the question of women. And unless this communalism and islamophobia, unless it is displaced as the ‘master discourse’, these issues will never get recognition in the public sphere. On that count, Pasmanda movement has attempted a number of conceptual inversions in order to achieve that.

One is the entire idea of solidarity. While the elite of all religions always focus on the question of religious solidarity – solidarity on the basis of faith, Pasmanda are saying that while that is one kind of solidarity, other kinds of solidarities are also possible. Solidarities of pain. Solidarities of common experiences of stigmatization, common experience of caste exclusion. And why not work with those solidarities?

Kuffir: And common experiences of exploitation. Because that should have been the strategy of the Left, but they have been the biggest proponents of the religious binary.
You were discussing the mainstream political responses – the Left discourse, the Congressi discourse, and the Dalit-Bahujan discourse as well. How have been their responses? How can we gauge the degree of their sensitivity to the Pasmanda demands? Has there been reaction? Summing up in a way, looking back?
Khalid: If you look at these movements, I don’t want to say much on the left movement, which has not gone beyond minority politics; not only on the political level but even on the social level. There is some lip service, but in terms of substantive support to the movement, I don’t see it forthcoming there. When we come to the Bahujan movement, I would differentiate it into the political trajectories and the social trajectories. While the political trajectory has all its problems which are associated with the Indian politics – so Bahujan politics, Bahujan political movements also face those problems, which emerge from the First-Past-the-Post system; so they are in the election to win, and when you are in the election to win, you try to capture as many votes as possible. Every Bahujan party tries to speak to every constituency, and when it comes to the Muslims, they are aware that the so-called Muslim ideological structures, whether they be the mosque, whether they be the madrassa, or the civil-society Muslim organizations, NGOs, media, even ‘alternative’ media platforms – they are all dominated by the sharif Ashrafia class. So they have this sense that it is the sharif culture, it is the sharif class which actually manages the Muslim body politic, including the Muslim lower castes. So they are satisfied at this point of time to just engage with the sharif class and let them speak on the behalf of all the Muslim community and get as many votes as possible from there. That is true for all the major political parties, including the Bahujan parties.

On the level of social, there are a number of new organizations; even old organizations, who have been very sensitive towards the Pasmanda movement, including Manyawar Kanshiram ji. The initial days, almost all the Muslims who joined DS4, or who joined the BAMCEF in the early 1980s, almost all of them were lower caste Muslims – when the movement was not successful in terms of politics. Because they could relate to what Kanshiram ji was speaking about. They could relate to what Behenji was speaking about. They were facing the same problems in their own communities. They were facing the caste-based stigma, the caste-based humiliation. But with time, one there was a split in 1986 between the political and the social; there was a political trajectory to the BAMCEF and there was the social trajectory. So there was one group which said – it’s a typical old social political binary – Manyawar Kanshiram ji articulated that politics was the master key, and the social would follow. And the second group which was led by Khobragade ji or…I don’t recall his name, when the split happened in ’86, he articulated that the social was equally important, and we should right now concentrate on the social, in contrast to the political. That has been a consistent theme even during the nationalist struggle before independence. The unique binary of the social and the political has been persistent in the Indian discourse.

Now if you look at the social side, especially various new formations; whether it is BAMCEF, those little magazines which are run by various Bahujan groups in UP and Bihar – there is a magazine known as Social Brainwash which is published from western UP, there are other little magazines which are published in Bihar – they have really played a very good role in circulating the Pasmanda discourse. So they have published articles on the Pasmanda politics, on the Pasmanda movement, Pasmanda people; raised very interesting questions, and even within the BAMCEF – there are at least two major formations; one is the one headed by Waman Meshram ji, the second one is headed by Shreeram Maurya ji – so the BAMCEF group headed by Shreeram Maurya ji; it has a very interesting rotation policy; the president is changed every two years. When we compare the two BAMCEFS, then probably the one headed by Shreeram Maurya ji has been especially sensitive to the Pasmanda articulation and the Pasmanda discourse. In the last 8-10 years, they have constantly given space to Pasmanda activists to come and speak from BAMCEF, to have a dialogue. And I would even acknowledge the work of Round Table India, because when we started in 2008-09, you were one of the very few websites; when I used to send my articles, most of my articles were rejected – I won’t name the major (publications) – you were one of the first websites who really published my articles, really encouraged me to write further on that.

So on the level of social, I see great hope; a great sensitivity towards what the Pasmanda activists and ideologues are raising. On the level of political I think there are constraints. And those constraints cannot be located in the figure of Behenji, or the figure of Ram Vilas Paswan. I think those are larger structural constraints, and unless we really challenge the First-Past-the-Post system in a substantive manner, unless we talk about a proportional electoral system which would probably be more democratic and just, under the present scheme of things….

Kuffir: Some kind of proportion.
Khalid: Yes, some kind of proportion; we can argue and contest about the various models that are available. Whichever is more appropriate for the Indian conditions, we have to chalk out some kind of proportional electoral system. Unless that is done – it is not only about the Pasmanda; it is about 60 percent of subaltern communities in India who have no hope of representation in this system for the next thousand years!

Kuffir: It is actually over 95 percent of communities which will never ever get any representation. 150 communities out of 6000 go to legislatures – what about the other 5850? And many Muslim communities are not even named or recognized as such by the State, so there is a huge problem unless there is some kind of recognition. And it is very deleterious to the resource-crunched Bahujan parties, whether from Muslim or Hindu side, so it is not always possible to participate in this kind of competition which are called elections. That’s my view.
Now going by what you said, we are talking about UP-Bihar, UP-Bihar, and it’s not even stretched to Bengal as it had been in the earlier days. The geography of the Pasmanda space has shrunk.
But we do see some articulation of angst by the Muslim writers in Telugu – from the Pasmanda Bahujan writers. There had been a kind of outpouring and we have tried to publish some of those in the Shared Mirror and Round Table India.  
So why has this ideology not spread beyond Bihar and UP? Politically…
Khalid: I think politically it is weak even in UP and Bihar. And if you look at it historically, Dr. Ambedkar pinpointed very clearly that so long as this ‘communalism’ is there…every riot produces the Hindu and the Muslim. So the riot is the chief mechanism which is used by the elite classes in India to actually create the Hindu and the Muslim as identity. Those are produced constantly, and those identities cannot be interrupted unless there is a big subaltern movement of the lower castes. And it is this dilemma that has to be sorted out.

Kuffir: A big subaltern movement across religions?
Khalid: Absolutely.

Kuffir: Unless that happens, the Pasmanda is kind of doomed…
Khalid: That is what the Pasmanda is saying. Because the Pasmanda slogan is ‘Dalit Pichda Ek Saman, Hindu Ho Ya Musalman’ – all Dalit Backwards are alike, whether they be Hindu or Muslim. Ali Anwar also says – it’s a very interesting conceptual inversion – that 'Hum shuddar hain shuddar. Bharat ke moolniwasi hain. Baad mein musalman hain.' (We are shudras, first the mulniwasis of bharat, muslims later). 
People interpreted that as running down on faith or something. But Ali Anwar is not talking about faith. He is talking about a particular identity. And that identity cannot really be conflated with faith, which is a much larger category. The critique against that identity is not because it derives from some understanding of faith, but because it is an identity which is hegemonized by the Muslim elite Ashrafia classes. And because that identity does not work for the majority of lower suppressed Muslim castes, that identity has to be critiqued. And it is critiqued through the vantage point of the ‘Sons of Soil’ arguments, from the vantage point of the Mulnivasi identity. There are problems with that nomenclature itself – that is a separate issue altogether – but there is an attempt by the Pasmanda Muslims to somehow contest the politics around the Muslim identity. And just like subalterns anywhere, they latch onto whatever articulation is possible in a particular spatial and temporal context. So it’s a counter-hegemonic exercise; it must not be really understood in terms of scientific precision. Because in any case we are talking about politics. We are not talking about biology or science. So it’s a particular kind of articulation.

Kuffir: It will hone itself in time.
Khalid: Yeah, absolutely. So this is counter-hegemonic solidarity of subaltern castes across religions. Because those are the caste groups which actually act as foot soldiers in the ‘riot-apparatuses’ which have been created across this land; that is the term Paul Brass uses, but he hadn’t gone further: why are these riot apparatuses there in the first place? what role do these riot apparatuses serve in consolidating a big savarna capitalist empire? So one has to understand this riot apparatus as a form of ‘restorative violence’ which basically consolidates the position of savarnas across religions, away from the democratic assertion that is coming from the grassroots.

Kuffir: So do you think the stake in creating and sustaining this religious binary of Hindu-Muslim – how much of the responsibility would you attribute to the Sangh?
Khalid: I would attribute the responsibility to all the elite classes. I won’t really go into the question of measuring which is what. I think it’s a symbiotic relationship. Hindu nationalism and Muslim nationalism – they co-produce each other. With the result that the voices of the vast mass majority are crippled. That would be my interest. I won’t go into the question of who is more responsible and who is less responsible.

Kuffir: Because this question is raised again and again…
Khalid: Yeah, it is the master discourse! Between slave owners! ‘My master is better than your master’! I’m not interested in that! I’m a slave, you are a slave, and we have to talk about slavery! Which master treated you better than my master – that is not my concern. It’s a master’s discourse.

Kuffir: We can’t choose between masters because we don’t want masters.
Khalid: Absolutely. We have to get rid of masters altogether!

Kuffir: So in a situation wherein this polity is so dominated by two kinds of political formations and other national parties are just hangers-on, and there are a lot of regional parties which do negotiate these identities on a more concrete basis at the grassroots. In a way, the Sangh and the Congressi formations don’t even have to deal with the Pasmanda Muslims, because in a way, they just have to deal with the Ashraf and also the Brahmin on the other side. Also the riot apparatuses are switched on or off whenever they need to.
So if this has to be carried forward; we have recognized that there has to be solidarities across Bahujan communities; across faith. There also has to be a certain kind of recognition that the regional parties may play a much more practical role in diffusing or addressing the Pasmanda questions. What do you think of that?
Khalid: One, I would say, the ruling class in India, that is, the caste-elite across religions; we should be very clear that its methodology in politics is very similar. So it will try to appropriate the new dissenting voices within their jurisdiction, it will create whispering campaigns, it will resort to character assassination – the methodology is very similar. I’ll give a practical, empirical example. In 2005, Lalu was the Chief Minister – he had ruled Bihar for 10-15 years. And then Bihar was going into elections. Now, Nitish, who was an ally of BJP, they (his party) approached Ali Anwar sir, and they formed this Mahadalit – Ati Pichda – Pasmanda alliance. Initially, Ali Anwar was hesitant, but when Nitish went to his house and there was a discussion and conversation, this alliance was gelled and came into existence. When they went into the elections – obviously Lalu was wiped out – and Nitish’s party JDU and the BJP combine won handsomely. It happened because the MBC vote, the Mahadalit vote and the Pasmanda vote, which were obviously feeling excluded under Lalu’s brand of politics. Lalu used to say ‘our alliance is M-Y alliance’, M-Y sameekaran.

Ali Anwar critiqued that it was not M-Y alliance but FM-Y alliance – Forward Muslim-Yadav alliance. So that is the kind of critique which Ali Anwar advanced. At that point of time, in 2005, the Ashrafia organizations dubbed Ali Anwar as a BJP agent. When Nitish Kumar won the elections, he was made a Rajya Sabha member, he was sent to the higher house. Now, Ali Anwar, who was a so-called ‘RSS agent’, Nitish Kumar who was a BJP ally –  Lalu Yadav was obviously the saviour of all Muslims – now they (Ashrafias) repositioned themselves. And later, I won’t name, but most of the big Ashrafia organizations in Bihar got very close to Nitish Kumar and convinced him that ‘now the Muslim vote will come towards you, we will ensure that’, and in the next elections also, Nitish won. And one of those people, who critiqued Ali Anwar as being a Sangh agent, his daughter stood for elections from the JDU ticket. So within five years, this entire understanding; that Ali Anwar was a BJP agent, and Nitish was a BJP ally – all that went into the dustbin. The Ashrafia class in Bihar repositioned themselves, they went over to Nitish Kumar – and Nitish stopped using the term Pasmanda. Immediately after winning the 2005 elections, when he came out of the airport, he said, “I won this battle because of the MBC, Pasmanda and Mahadalit vote”. Nitish Clearly acknowledged that, and Praful Bidwai also wrote an article in frontline at that point of time, reflecting on this. But in five years, what happened? The entire Ashrafia brigade got very close to Nitish Kumar. Now Nitish felt that ‘I no longer need the Pasmanda community because the entire Muslim community is coming to me’. Again, Ali Anwar is still the JDU MP, but Nitish is no longer talking about the Pasmandas. So, their ability to reposition is because of their control over the ideological propaganda machinery, over the so-called community institutions, etc. It gives them more leverage.

Kuffir: Whose ability are you talking about?
Khalid: The Ashrafia. The elite Muslim ability. So, from Lalu, they shifted to Nitish Kumar.

Kuffir: They obviously don’t derive their strength from numbers, so they derive their strength from traditional caste-capital structures.
Khalid: Also colonisation. I mean, their discourse colonised the Pasmanda. Just like the savarn-Hindu discourse has colonized the vast majority of the Hindu castes.

Kuffir: So do you say this kind of recognition of the Pasmanda – even if temporarily – is happening within the nationalist discourse of the national parties?
Khalid: Haan. It is there. People are still confused about how this will play out. Everyone acknowledges that this is a new constituency. This is a new subterranean movement, that is emerging. But no one is actually sure how this will pan out. So there is a sense of ambiguity and there is a sense of anxiety. Because there is an experience of the Dalit politics. In the 1980s, no one took Mayawati and Kanshiram seriously, but they changed the entire chessboard and the chess game altogether. 1994, BSP came to power in UP, and even then they (the opponents) kept on underestimating; they thought they will manage, but in 2000, Mayawati came back with a majority. So there is something which the Dalit politics has established – which is the fear of the unknown. Don’t take these people lightly! Mayawati ji has established something, that the Dalit-Bahujans can be politically ambitious, they can also play the game to their favour, they can also negotiate, they can also reposition themselves. So as far as the Pasmanda is concerned, if you look at the last 10 years, every major party has paid lip-service. Even Modi ji has used the term Pasmanda in one of his speeches – I have that copy somewhere. Rahul Gandhi has had negotiations with the Pasmanda activists. So almost all parties are talking to them, are engaging with them – but not, in a sense, to emancipate them, but to gauge which way the movement is moving. What is the right time to really take over…

Kuffir: The first goal is of course, representation. Who has given more representation to the Pasmanda? The regional parties or the national parties? As you said, Nitish did try…
Khalid: Nitish tried, but across the board, I think the story is the same.

Kuffir: You had also mentioned that Kanshiram saheb had also tried to an extent in UP…
Khalid: Again, whatever happened to Nitish Kumar, that is what happened to Kanshiram ji. Once he became powerful, the entire UP Ashrafia class went to him. So right now if you look at Behenji; if you look who is on the left side and who is on the right side, you’ll find people from particular caste locations, whether Hindu or Muslim.

Kuffir: They say that if the Dalits and Adivasis have 121 or so reserved (parliament) seats, there are around 125 seats across the country wherein only the upper castes are always chosen and elected.
I mean, these should also be considered reserved even if not named officially. So, these are also reserved for the upper castes. And the competition for the rest is not very tough for them either. Because the remaining are only the OBCs, among which the Muslims also fall, and the OBCs have right now only 18 percent or so.
So how do you think the Pasmanda will ever reach Indian parliament?
Khalid: There are no shortcut solutions. They’ll have to work just like all other subaltern communities have worked. They’ll have to study, they’ll have to research, they’ll have to organise, they have to struggle. There is no shortcut.

Kuffir: There is only Ali Anwar we can speak about right now.
Khalid: There also others, but the movement is still very nascent, and probably in the next 5-10 years, many more voices will emerge, many more institutions and organisations will emerge.

Kuffir: I’m talking about the larger structures, of how this electoral system is and the polity is…
Khalid: One thing, like you said about the reserved constituencies that needs to be mentioned here; most of the Dalit reserved constituencies, if you look at the data, are reserved where there is a majority of Pasmanda population. That’s one. And because of the 1950 presidential order, Dalit Christians and Dalit Muslims have been excluded from the SC list.

Kuffir: That is the question I want to ask. We keep hearing about agitations and protests demanding that, but the voice from the Dalit Christians is more than the voice from the Dalit Muslims in some ways. That’s what I found.
Khalid: I think it’s because of the church. Because they have an organized church, and Muslims don’t have an organized body of that sort.

Kuffir: And they have been consistently asking.
And the voice from, any caste voices from the Muslims; those who are vocal publicly – there has been more of a rise in demand for religious reservations on the basis of their being a Muslim, as a whole marginalised category. What do you think of that?
Khalid: Those voices that say reservations for Muslims as a whole community, those are usually raised by those organizations that are in any case dominated by the Ashrafia Muslims. Pasmanda Muslims are already getting reservations. Even in the Central OBC list and the State OBC lists. Now the question is not reservation.

Kuffir: No, how do you understand if the Pasmanda, who are the majority, are getting reservation – well, not the majority, but they have been formally recognized for it, so the castes also had to be notified and made aware of on many places – so what is this new recognition of only the whole Muslim category as a backward…
Khalid: That is a ploy by the Ashrafia castes to get included within the OBC list for reservations.

Kuffir: Is it just to further deter or stop the reservations for the Pasmanda?
Khalid: Absolutely.

Kuffir: Because that’s what it has resulted in, most times. Whenever the issue was raised in AP, it went back again to the Backward Class Commission and it went back again to court and it’s still hanging around in court in some ways. So that’s what is being raised again in Tamil Nadu, Maharashtra and other places. So it is actually stopping these entitlements from reaching the most backward.
Khalid: Yeah.

Kuffir: So I see this also as an attempt to dilute the primary truth or reality that caste is the primary divide in Indian society, and to again bring back the religious divide, even if it doesn’t yield any results practically to the Pasmanda or the Ashraf Muslims. It does serve the Brahmin needs.
I would like to understand the need for the so-called religious minority – the Ashraf leadership – to create a ‘Hindu’. Why is there a need to create the Hindu?
Khalid: (Laughs). It’s a cause and effect relationship. It’s a symbiotic relationship where both win. Both get from the State larger benefits, when compared to their population.

Kuffir: To create the Hindu when it’s is obvious that the non-Hindus are Dalits, Adivasis, and the Lingayats and several such communities; and the Sikhs and the Buddhists and Jains. These are not Hindus. But broadly speaking, they are all categorized as Hindu. Apart from that, there are, in the Backward Classes 90 percent of them – actually speaking 100 percent of them – don’t have access to the scriptures, access to any gurus or whatever. And acceptance of the Brahmin either way, has been very recent. So this need to create the Hindu is justified to create the Muslim as another category.
Khalid: Absolutely. If we look, there are more than 650 lower caste groups within Muslims. They have their own mythologies of origin, their own occupational specializations, they have their own culture, they are linguistically different, they are regionally spread out. Now if these 650 communities mobilize, organize and bring their concerns to the public sphere, it will be impossible for the ‘minority’ category to really accommodate them. Similarly for the ‘majority’ category; 4000 caste groups.

Kuffir: The majority will break down.
Khalid: The majority will break down!
So the majority-minority duopoly is actually a very savarn invention to consolidate their own position within a democratic game. And unless we do away with the majority-minority category, unless we radically redefine, or transcend, or re-understand…whatever… I’m not very sure of the words to use here. I’m using the term ‘post-minority condition’ for this. So I’m saying there is a need to revisit how the secular-communal duopoly, how the majority-minority category has played at the hands of the savarnas and actually excluded the mass majority.

Kuffir: The only thing this baggage – secular, communal, Muslim, Hindu – comes well along with the whole design of the Indian nation. It helps set discourse – secularism-communalism, good elements-bad elements – in India we divide politics and people into good-people-bad-people (laughs); there is no stratification, only good people and bad people… as a friend was saying.
So this kind of politics doesn’t promise emancipation even in the distant future, because this discourse can go on and on, – any time the Pasmanda makes a demand, or the Backward Classes make a demand about reservations, or the Dalits make a demand that our rights as human beings be recognized – they will bring in the Hindu-Muslim-communal-secular divide; they will bring in the other kinds of multifarious divides. Even in the distant future it seems very bleak, that a Pasmanda would enter parliament…
Khalid: It is very bleak, but there is also hope.

Kuffir: Which means, actually speaking, let’s look at the reality of what I had just said. It actually means that 85 percent of Muslims will never be represented in the Indian parliament.
Khalid: Also 85 percent of Hindus.

Kuffir: No, let this also be recognized, because that is already recognized. Let this also be emphasized, that they will never ever – under the present conditions and under the present structures.
Khalid: Why I’m saying there is hope; because this early imagination of the nation and its related conceptual assemblage, whether it is the majority-minority, secular-communalism and so on and so forth – all of this conceptual assemblage is now under increasing pressure from all quarters. The Nation is being reimagined, majority-minority is being reimagined, secular and communalism is being reimagined, but, it is being reimagined in the interest of, and from the vantage point, of the elite classes. Now the onus is on the Bahujan classes; how to really challenge this rethinking process, and bring their own concerns into reconfiguring these categories, so that they are more pro-subaltern, pro-Bahujan. It’s a discursive battle. Nation-State is an empty signifier.

There is clarity; Dr. Ambedkar was very clear that this ‘nation’ is a collection of nationalities. It’s not really a nation, but a ‘nation to come’. It will become a nation hopefully. On that there is clarity. And there are two interesting volumes, one published by G. Aloysius which says Nationalism Without A Nation, another published by Christophe Jaffrelot, Pakistan: Nationalism Without A Nation. So, there are two volumes – one for India and one for Pakistan. So it is very clear that this is still a ‘nation to come’. We have to create a nation.

We have two guiding principles – from what I could distill from Dr. Ambedkar, whatever little I have read about him – one, that the ‘nation to come’, will be a form of an associational democracy. So there is great clarity on that; it is not only about liberty and equality, but it is about fraternity. At least people should be able to talk to each other, they should be able to marry each other, they should be able to love each other, across religious boundaries, across caste boundaries and so on and so forth. So that is the fundamental; the core principle, which I see in Doctor Saheb. This idea of an associational democracy, this idea of fraternity.

Secondly, he also says, even when equality might be a fiction, at least it should be a guiding idea. It should be the guiding principle of all our politics. Once we are clear on what kind of nation we have to envisage, or what kind of nation we have to build – the guiding principles are very clear. Second, affective change and structural change – in the earlier vocabulary it was articulated as social and political, like we discussed earlier. So, structural change has to go in a dialectical movement with affective change. If there is structural change, and people’s emotions, people’s sensibilities are not ready for it, it will collapse. Unless there is affective change, meaningful structural change is not possible. So it’s a chicken-egg question.

Kuffir: I agree totally with you. I see it this way, that the moment has arrived, which means it’s not so far ahead – utopia -it’s a possibility.
Beyond this, to form these solidarities – it is very necessary, it is not just a question of electoral alliances – as you rightly pointed out, we have to build social institutions.
Khalid: At least we have to get a conversation going. The very reason that you have come all the way from Hyderabad, and I drove seven hours from Saharanpur, just to discuss this – that is a good beginning, isn’t it!
So this will keep on happening. It will be built inch by inch, brick by brick, slowly, but surely. And the Bahujan will have to reclaim the universal. Just like Dr. Ambedkar said, that even when equality is fiction, it must be a guiding principle. Now the Bahujan must start seeing itself as the governing class in India. And governing class not in order to get the benefits of a future regime, but a governing class which can really bring about the values of liberty, equality and fraternity into the body politic, into the nation, to the maximum level possible. It could be an ongoing process, there could be no timelines – freedom, equality, fraternity have to be fought for each day. But now the Bahujan has to see itself as the universal class, and the class that will govern the destiny of India from now onwards. At least that confidence should be there, and we should not be pessimistic or under-confident about it.

Kuffir: Practical bhi hona hai!
Khalid: We have to be practical, we have to talk about it, and that confidence should be there. And I see great hope. The young people across the board, in the campuses and everywhere outside the campuses – they are discussing these issues. And that is a good sign. Once we start discussing, once an idea has found mention somewhere, it will become a reality, sooner than later. And that is a good sign.

Kuffir: Yeah of course. Without hope, as you said, we won’t be meeting!
Khalid: Absolutely.

Kuffir: So on that very positive note, I thank you for agreeing to talk with us and thank you very much and all the best to you. Jai Bhim, Jai Pasmanda.
Khalid: Thank you so much Kuffirda. Jai Bhim, Jai Pasmanda.   
~~~        
 
Transcribed by Myneni Deepu.  

Courtesy: Round Table India

Personal Laws of All Faiths Violate Principles of Gender Equality, Why then the Sole Focus Only on Triple Talaq?

0

The Invisible Lawyers Team examines how an ill-conceived, even deliberately targeted discourse, by only targeting triple talaq and Muslim women, ignores the fact that all faith-based person laws discriminate. If gender equality is the test, why this lopsided view?

What is at stake is not just Muslim Personal Law but all laws governing marriage and divorce, including Hindu Law.


 

The importance of Shayara’s case for women of all communities

While there has been a state of near hysteria over the issue of triple talaq in the media, no one is clear on the real importance of the case. While the media is flooded with stories of husbands giving unilateral talaq to their wives on the phone and by SMS, no one talks about the fact that women of all religious communities face domestic violence and that women are abandoned without notice. The fact is that inequality in what has come to be known as personal laws exists across all religious communities. Not a single law of any community or tribe is immune from the charge that it violates fundamental rights of women to equality. Agricultural land in many states notoriously is often not held by the daughters of the community.

We have only recently seen an agitation in Nagaland for the inclusion of women in municipal councils that failed. The demand was resisted on the ground that legislation could not interfere with tribal customs.

The Supreme Court in Madhu Kishwar & Ors v. State Of Bihar & Ors (1996 SCC 5 125) when confronted with the issue of whether tribal customs could be challenged on the ground that they violated fundamental rights dodged the issue by stating that: “For in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, brakes to its self-motion, described in judicial parlance as self-restraint…under the circumstances it is not desirable to declare the customs of tribal
inhabitants as offending Articles 14, 15 and 21 of the Constitution…

Similarly in Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149), the Supreme Court was asked to strike down Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. The court refused to do so and preferred instead to “read down” a blatantly discriminatory law that said that the father is the natural guardian of the children and it is after the death of the father that a mother becomes the natural guardian. The Supreme Court interpreted the provision to mean that in the absence of the father or when the father was not in charge of the affairs of the minor either due to an agreement between the two parents or if the father for any reason was not able to take care of the child, the mother would be the natural guardian even during the lifetime of the father. Personal laws have become an island within the Indian Constitution immune from any challenge on the ground that they violate the right to equality of women.

In the triple talaq case the Supreme Court is confronted with this question yet again and it remains to be seen if they will decide the question or dodge it by saying that Islam itself does not recognize triple talaq and hence, there is no need to decide the larger issue of whether personal laws are amenable to constitutional checks and challenges. What is at stake is not just Muslim Personal Law but all laws governing marriage and divorce, including Hindu Law. Will the ruling party that is moving towards a Hindutva State, allow such a challenge is the question. For now the Union of India has committed itself to the challenge but may remain content with the striking down on the ground that it is un-Islamic as some groups have argued. There is a lot riding on this case, not just talaq. The issues are fundamental to constitutional gender justice for all women.
 
Impact of Triple Talaq
The undisputable impact of triple talaq is that it alters the civil status of a married woman in a unilateral manner, as it is the husband who pronounces a woman financially unstable if she is solely dependent on her husband’s income and is primarily responsible for the household chores. Such a woman may be driven to claim maintenance if the mehr (amount of monetary security usually determined at the time of marriage which is given to a Muslim woman at the time of divorce) she receives is nominal which most often it is. She may have to engage in legal battles for the custody of her children. It is ironic that the supporters of triple talaq claim that triple talaq cannot be a subject for adjudication before courts of law and shall continue to remain extra-judicial, but fail to notice that the consequences following triple talaq are adjudicated before courts of law.
 
Stand of the Jamiat Ulama-I-Hind
Legitimate claims, of violation of fundamental rights to equality, life and dignity of Shayara Bano and of several other women like Inayat and Tamana who have been thrown out of their matrimonial homes, left financially unstable, and cut off from seeing their children by means of triple talaq who are being represented through a collective voice of Bebaak Collective, are receiving backlash from conservative groups such as the Jamiat Ulama-I-Hind for taking the matter to court who are of the opinion that – “Part III of the Constitution does not touch upon the personal laws of the parties and therefore their constitutional validity cannot be questioned.”
 
Stand of the All India Muslim Personal Law Board
The All India Muslim Personal Law Board represented by Senior Advocates Kapil Sibal and Raju Ramchandran and several others reacted on similar lines taking the stand that– “(Muslim) personal laws cannot be challenged by the reason of fundamental rights” cautioning the Supreme Court not to interfere in the personal affairs of the Muslim community. The All India Muslim Personal Law Board in its written submissions to court states that: “it is clear that though pronouncement of talaq thrice at one go is undesirable but in view of the aforesaid verse of the Holy Quran, it is clear that three pronouncements, howsoever they may be made result in valid dissolution of marriage.”
 
Law Commission of India on a UCC & UP State Elections
Apart from responses and counter responses of parties to the court case, during the pendency of the matter before the Supreme Court of India, we also saw orchestrated debates on electronic media “liberate Muslim women” and no less than the Law Commission of India issued a questionnaire asking for Yes/No answers to the question “Are you aware that Article 44 of the Constitution of India provides that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India? Do you agree that the existing personal laws and customary practices need codification and would benefit the people?” In a well written letter some of us from the women’s movement asked the Law Commission of India to give us a draft of the so called code before we could answer the question, elementary to say the least.
Then came several election promises made by the BJP in Uttar Pradesh that they would end the practice of triple talaq and after the results we were told that Muslim women voted for the BJP as they wanted an end to triple talaq. It remains a mystery how the secret ballot cast by women became part of political propaganda.

Is the insistence on saptapadi (seven steps around the holy fire) among Hindus for a valid marriage being abolished by a Uniform Civil Code? Does polygamy exist only among Muslims or is there de facto polygamy among Hindus as well? Will marriage among all communities be secularized and be truly considered as “a civil union” and “a partnership of equals, and no longer one in which the wife must be the subservient” as suggested by the Verma Committee or are we focused only on the abolition of triple talaq among Muslims? If the latter is the case, the political agenda behind the government championing the cause of Muslim women falls under doubt.

This is not to suggest that formal inequality can continue to exist under the Indian Constitution but rather that all forms of inequality formal or de facto in all communities must be abolished. The fact is that Hindu Law contains the remnants of Manu’s Laws (an ancient sacred legal text followed by Hindus) and that too must change.
 
Bebaak Collective’s stand in distinction to the Union’s stand
Bebaak Collective issued a statement putting the issue squarely in a secular context against the stand of the All India Muslim Personal Law Board responding as follows:
First, whether the practice of unilateral triple talaq is validated by religion or not is not our contention, rather it is gender discriminatory and epitomises patriarchal values and therefore must be abolished should be emphasized. Second, the belief that women lack decision making qualities dilutes the citizenship rights of Muslim women in India who have been exercising their electoral rights for more than sixty years nowIt is no surprise that All India Muslim Personal Board has not progressed over the decades and reiterates the same position which reverberates the patriarchal conservative ideas of the community. However, we envision a gender just law for the community where women’s question of social security and rights promised by the Indian Constitution will be practised.”

Organizations like Bebaak Collective distinguish themselves from the ruling party in that they articulate the voice of secular Muslim women. They demand not just an end to triple talaq but also social welfare schemes for destitute women. We all know of the notorious problems with Section 125 of the Criminal Procedure Code, 1973 and the difficulty of recovering any money form a disappearing husband even when an order is passed for maintenance. Bebaak Collective demands better living conditions, the right to secular education and other benefits from the State for all women. Relief form triple talaq alone will not solve the problem, they want to negotiate for a more equal space for all women within the marriage, they demand and end to domestic violence.

Hasina Khan, founder of Bebaak Collective is of the view that:
None of the personal laws are gender just. Even Muslim personal law is discriminatory and does not provide equal status to women. Muslim women are doubly oppressed; they witness violence of different forms. State must provide social security to Muslim women who are survivors of any form of violence and discriminations. The State must protect their right to livelihood and also provide community centers, compensations, stipend, library centers, legal aid or counseling sessions to help them with sustenance of their life. The State must provide job opportunities and all kinds of support including working women’s hostel, shelter homes and specialized skills which have market demand to the young women across all communities who can carry forward their life with dignity and independence…We have felt the need to focus on four key issues a) Right to Citizenship and equality, b) Social security, c) Emerging Right wing forces and d) Implementation of Sachar Committee Report… It is seen that a woman has lesser social security irrespective of her community or religious status, we must demand for all of them having emphasis on Muslim women….

They argue that all personal laws are capable of being challenged on the ground that they violate fundamental rights regardless of whether they are based on religion or custom, are codified or un-codified.

Article 13 of the Indian Constitution states that “all laws in force” in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void and the State shall not make any “law” which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 13 (3) defines the expression “law” to “include(s) any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law” and the expression “laws in force” to “include(s) laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

Bebaak Collective and CSS argue that all personal laws are “laws in force” and must meet the challenge of Article 13. The system of personal laws originated in British India prior to the enactment of the Indian Constitution. Right from Warren Hastings Plan of 1772, Maulvis and Pandits (religious priests) were assisting and advising the courts on disputes governed by Muslim and Hindu Laws. While today priests no longer advise the courts, the system of governing people of different religions by different laws continues till today.

The basic defining feature of any law is that it is binding on citizens and is recognized by the State as law and enforceable by the State. Personal laws are binding on citizens and even today are recognized and enforced by the State. The State has explicitly recognized personal laws in form of legislations for example, Muslim personal laws have been provided recognition through the Muslim Personal Laws (Shariat) Application Act 1937 and Hindu personal laws through various legislations such as Hindu Marriage Act, 1955, Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and Maintenance Act 1956.

There is therefore no basis for the demand that the Supreme Court exercise judicial restraint in Shayara Bano’s petition.

The Bombay High Court vide a two-judge bench in the case of State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84) way back in 1952 while upholding the constitutional validity of Bombay Prevention of Hindu Bigamous Marriages Act, 1946 made an observation that the expression “personal law” has not been used in Article 13 and therefore the framers wanted to leave them outside the purview of Part III Fundamental Rights of the Constitution. Later, the Supreme Court in Krishna Singh v. Mathura Ahir (1981 3 SCC 689) while dealing with a case of succession rights of a mahant (ascetic) said: “Part III of the Constitution does not touch upon the personal laws of the parties”. This erroneous decision of 1952 is what the All India Muslim Personal Law Board relies on. Several learned authors have pointed out that no reasons have been provided for this observation made by the Bombay High Court and the Supreme Court. Moreover, in a subsequent judgment of C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami (1996 8 SCC 525) the Supreme Court has held: “Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void under Art. 13 if they violate fundamental rights”.
 
Stand of Bhartiya Muslim Mahila Andolan (BMMA)
BMMA has taken the view that after the Delhi High Court case of Masroor Ahmed v. State (2008 103 DRJ 137), talaq-e-bidat/instantaneous triple talaqhas lost its instantaneous nature, as also its irrevocable nature. Thus, even when instantaneous talaq is pronounced it will not immediately effect divorce…courts in India have by a purely interpretative exercise held that talaq-e-bidat or instantaneous talaq is illegal and ineffective. If the same declaration is given by this Hon’ble Court by a process of interpretation of personal law, then the question of going into the constitutionality of personal law does not arise. In the matters pending before this Hon’ble Court in none of the cases the facts comprise of anything other than women being aggrieved by instantaneous talaq and therefore those issues are also academic.
They argue for a minimalistic approach and request that the constitutional issue of whether personal laws are amenable to challenge and checks in courts not be decided.
 
Stand of the Union
The Union in its affidavit to the court seems to be supporting Shayara Bano’s petition when it states that “It is extremely significant to note that a large number of Muslim countries or countries with an overwhelmingly large Muslim population where Islam is the State religion, have undertaken reforms in this area and have regulated divorce law and polygamy”. But women’s groups are skeptical of a hidden Uniform Civil Code agenda that may be forming the basis of such support. In February before the U.P State elections, the Law Minister made a statement that “The government may take a major step to ban triple talaq.” No such step has been taken, instead the ball has been thrown into the Supreme Court and the Suprme Court itsef has chosen to give this case a priority hearing on the ground that “the rights of many persons will be affected”.
 
The real significance of the case: Are personal laws, regardless of which community, immune from constitutional challenge ?
The broader constitutional issue of importance is whether unlike any other laws that are amenable to constitutional challenge for being violative of rights to equality and dignity, are personal laws – be it of Hindus, Muslims, Parsis or Christians – immune from constitutional checks and can they continue to be practiced despite being discriminatory, patriarchal and against fundamental rights of women or any other person for that sake?
 
What Stand will the Supreme Court of India take ?
Shayara Bano’s petition has now been listed to be heard by a constitutional bench of five judges during the Supreme Court vacations in May. The reason being that the Chief Justice believes that “the matter is of substantial importance” and deserves undivided attention of the court. Only time will tell if the Supreme Court chooses to overrule the Narsu Appa Mali and Krishna Singh cases or chooses to exercise judicial restraint declaring instead that triple talaq in the form in which it is practiced is un Islamic leaving undecided whether personal laws can be challenged. If they do decide that personal laws can be challenged, it will have far reaching consequences for all women regardless of the religion they belong to and advance the goal of gender justice for all.
 
Courtesy: Indian Cultural Forum