It is for the Muslims of India to now exercise their collective wisdom and decide the response to such a perceived threat to their identity. It has been pointed out by a few people that the use of the word “common”, with reference to the civil code in the Law Commission questionnaire, instead of “uniform” used in Article 44, is mischievous as it reflects the Sangh Parivar’s avowed objective of submerging all the diverse cultural and religious identities into a “one culture, one nation” identity known as “Hindutva”. The words of the Law Commission–“to harmonize the various cultural practices” – to express its objective, further reinforce this suspicion in the mind of a beleaguered community which is facing continuous onslaughts from the over-enthusiastic cohorts of the ruling dispensation. To add insult to injury, most of the questions pertain to Muslim personal law.

Having said that, what should be the response of the Muslim community to the questionnaire? Should it, (as mandated by the AIMPLB), boycott the questionnaire, or, should it participate in the debate and express its views on the viability and need or otherwise of a uniform civil code? Logically and rationally the answer would have to be “Yes” for the latter proposition. By boycotting the questionnaire and stonewalling any debate or discussion, the Muslim community is rendering itself vulnerable to a “common” civil code being thrust down its throat. And, if this common civil code has a tinge of saffron flavour, then the community will have only itself to blame. On the other hand, by participating in the debate, the Muslim community would be demonstrating its openness to the democratic process and retain the moral right to question any code that seeks to submerge its core identity and values. And in this, the community would find support, not just from other, similarly placed, minority communities, but also from sections of the majority community itself.

It is also time for the Muslim community to introspect on how things have come to such a pass. That the “Shariah” law as practiced in India falls short of meeting the evolved standards of gender justice and equality is a given. Practices like triple talaq, halala and polygamy, steeped in patriarchal and medieval narratives, can hardly be regarded as just and fair. The moot question is – are these practices really an integral part of the “Shariah”? Even a cursory study of the history and evolution of the Muslim Personal Law would reveal that the Quranic injunctions and hadith traditions were subjected to a process of logical study, interpretation and deduction by ordinary mortal minds having no pretensions to divinity. Their conclusions are known as “Fiqh”. In India, Fiqh underwent substantial distortion under the British rule and evolved as Anglo-Mohammedan law, which actually passes off as the “Shariah”. Leaving aside the distortions brought in by the British jurists, the fact that the law could be interpreted by those living in the 7th to the 11th centuries to suit the then social conditions, leads to the logical conclusion that the changed social context warrants fresh interpretation by modern minds.

When the Hudood injunctions prescribing gruesome punishments for moral offences (such as stoning to death for adultery, amputation of limbs for theft and beheading for murder) could be replaced with more humane visitations like imprisonment under a uniform penal code, (notwithstanding the spiritual mandate that the offenders who escape punishment in this life would suffer more gruesome punishments in the Hereafter), there is no reason why unjust practices like triple talaq and polygamy, (which are at best only permitted and not mandated), should not be given up. Why can’t Muslim men give up these misconstrued rights, which are not an essential or integral part of the practice of the religion?

Islam, as originally conceived, was a reformist movement that brought about sweeping changes in the established patriarchal system existing in the Arabian Peninsula in the 7th century AD. Unrestricted polygamy, polyandry, female infanticide, buying and selling of women and many other hedonistic practices were put an end to. The rights of women to hold property, to consent for marriage and to seek dissolution of an unhappy marriage were established and enforced. Traditions attributed to the Prophet of Islam even go into minute details of how gently and lovingly men should treat their wives during coitus. The Quran declared that husbands and wives were a raiment unto each other, thereby recognizing and reiterating the equality of status between men and women. Practices like conditional polygamy were no doubt permitted, but under the circumstance of a lopsided male-female ratio caused by the ravages of prevailing wars. In the present era, where the converse ratio exists and where women command an equal status with men in terms of education, fiscal freedom and physical independence, it would be anachronistic and absurd to say that polygamy has any validity or justification. To retain polygamy, restricted, conditional or otherwise, in a country governed by a secular, democratic Constitution would be undermining the express promise of equality and the right to a life of dignity. The Quran itself unequivocally emphasizes monogamy.

Marriage as a contract is itself a revolutionary concept. It presupposes equality between the contracting parties. When a marriage cannot be contracted without the consent of both parties, it cannot also be terminated except by consent of both parties or through a process of arbitration (as prescribed in the Quran) or through judicial intervention (as practiced in many Muslim countries). There cannot be a unilateral, arbitrary and whimsical termination of the contract by one party alone without inviting penal consequences. Obviously, capricious practices like triple talaq and polygamy, are antithetical to the very idea of equality, which underlies an Islamic marriage. In this context, Muslims have to understand that there is nothing in the Quran or the Hadith traditions that prohibits a progressive approach to matters of social intercourse. It is wrong on the part of the Muslims to claim that giving up these unjust practices would be compromising on their religious identity. The core identity of a Muslim is the belief that there is one God and Mohammed is His Messenger. This belief is the essence of Islam and defines the real identity and faith of a Muslim and this is what is protected under Article 25 of the Constitution of India. Secularism is not a millstone to be hung round the neck of any one community. It is a liberating, and yet uniting, principle enshrined in the Constitution. It upholds the right to a life of dignity and equality and therefore binding on all.

The Muslims have missed the bus by failing to get the personal law codified in conformity with the principles of equality and justice enunciated by the Quran and enshrined in the Constitution. The Muslim Personal Law (Shariath) Application Act, 1937, makes the “Sharia” applicable to the Muslims of India. However, the absence of a definition of Sharia, has led to chaos with seminaries and scholars issuing conflicting fatwas on the same issues. The victims of this chaos are not just the women but also the men. A codified personal law would usher in the much needed clarity and consistency. While the AIMPLB slept over the idea of codification, the Bharathiya Muslim Mahila Andolan, a women’s organization based in Mumbai, boldly came out with a draft code. However, this courageous effort was met with cynicism and derision. Now, with the prospect of a uniform civil code looming large, it would be wise to give up the paranoia and engage in a reasoned debate with the government and ensure that the secular values, religious plurality and cultural diversity, which define the greatness of this country, are not compromised at the altar of uniformity. An effort can still be made to get the personal law codified.

AJ Jawad is a practicing Lawyer and Mediator at Madras High Court.

The opinions expressed in this article are the personal opinions of the authors. This was first published on LiveLaw and this article was made possible because of financial support from Independent and Public-Spirited Media Foundation.

SabranIndia is reproducing this article with the permission of the author.

The post Uniform Civil Code Or Codified Personal Law? appeared first on SabrangIndia.

I read with mixed feelings the announcement of the Prime Minister of India, Shri Narendra Modi, that August 14 should be remembered as the “Partition Horrors Remembrance Day”. The Home Ministry was very quick to issue a notification to this effect.

I don’t wish to delve into the political compulsions that made the Prime Minister make such an announcement. Being a mediator by vocation, I was wondering how such a statement can be viewed from a conflict resolution perspective. But before that, let me give the Prime Minister the benefit of the doubt. Maybe his intention was to tell the people that “Look, it is important to stay united in order to avoid the horrors of the Partition.” The question is – if that was the intention, could it have been reframed in a better way?

Reframing conflict

Mediation is all about peace-making. In mediation, a mediator plays the role of a facilitator who helps parties in conflict to move from the past and focus on the future. The past would have been a time of great difficulty, turmoil, emotional trauma and pain. This leads the people in conflict to hate each other, to indulge in toxic communication and behaviour, to damage each other, to blame each other for all the mishaps and to generally think of the other as a monster or an ogre from the Grimm Fairy Tales. When they sit before the mediator, the atmosphere is usually one of tension, anger and other intense emotions. The mediator has a tough task to diffuse the tense situation and to get the parties to move from the past and focus on the future. The mediator uses the technique of reframing to change the terms of reference between the parties. Where, for instance, one party says that the other party is “lying” about something, the mediator would say, “Well, you have a different recollection of what happened.”

The technique of reframing is used effectively by the mediator to do what William Ury and Roger Fisher talk about in their seminal masterpiece “Getting to Yes”, viz.

(1) Separate the people from the problem and
(2) focus on their interests and not their positions.

For example, if one party says, “My partner is unscrupulous. He thinks nothing about misleading the customers and keeps making false representations about the product. He cares nothing about how this will affect the goodwill of our firm. I am tired of his crooked methods,” the mediator would reframe this as, “What I hear you saying is that, the reputation and goodwill of the firm is important and you wish to preserve that.” In one stroke, the mediator has shifted the focus of the parties to a future need to have honesty and transparency with the customers – an interest that is common to both.

In effect, what the mediator does through the technique of reframing is to draw the parties from their past unpleasant experiences, help them to understand what is good for them for their future and get them to work towards that goal. All that is toxic, negative and painful is reframed to something that is purposeful, positive and future-oriented. People in conflict tend to be entrenched in the past. They are unable to move beyond all the pain, anguish and suffering they have been through. Sometimes this pain and suffering is real and sometimes it is either exaggerated or, maybe, even imagined. But remaining in that state can be harmful. It creates a lot of toxicity, vitiates the environment and drives people to do things that may be potentially harmful for themselves and for others. The past is a lesson for the present and the future. It is not something you dwell on, wallow in, feel sorry for yourself, generate hatred towards others and make the present and the future worse for everyone.

Is conflict bad?

Most people think conflict is bad. When you say “conflict” it brings to mind strife, struggle, fighting, killing, war. But actually, conflict is not bad. What is bad is not managing it and resolving it. Allowing conflict to spiral out of control is bad. It is worse to perpetuate conflict and to keep reliving it. Conflict can have a positive effect as a harbinger of change. But for conflict, many important changes in the world would not have come about – emancipation of slaves, women’s rights, workers’ rights, freedom from colonial rule and so on. The world would be a victim of inertia described in Newton’s first law as “an object remaining in its state of rest or uniform motion unless acted upon by an external force.” Conflict is that external force that brings about change, provided it is managed and resolved peacefully. If not, it can cause tremendous damage or even total annihilation.

If we agree that conflict is not all bad but needs to be managed and resolved peacefully, then it is important to (a) not remain entrenched in the past but focus on the future and (b) work towards identifying, understanding and reaching common interests and goals. Nelson Mandela recognised this when he refused to succumb to the demand for the trial of the apartheid regime and opted for the Truth and Reconciliation Commission instead. Mahatma Gandhi chose the path of non-violence to secure freedom from British colonial rule, firmly refuting the belief that large struggles have to be violent. Great leaders and thinkers have always advocated the path of reconciliation and peace-making rather than revenge and recrimination. A great statesman is like a mediator. She plays the role of servant-leadership, helping people to navigate through their conflicts, find common grounds and work together to solve the problems of the present and to ensure a better future.

The partition is itself a lesson for us: that if you perpetuate hatred, distrust and animosity between communities, it leads to cataclysmic consequences in which both sides suffer. What is needed is to foster understanding, trust, love and harmony. What is important is to be liberated from the past and not to repeat it.

Can we positively reframe “Partition Horrors Remembrance Day”?

“Partition Horrors Remembrance Day” is replete with the imagery of the brutality and savagery that accompanied the partition of India. It does nothing to help the people to move on. It can only perpetuate hatred, animosity and distrust. Does it augur well for the nation? Certainly not! Where we should be focusing on education, health and progress, we would be thinking of revenge and recrimination. Could the Prime Minister have reframed “Partition Horrors Remembrance Day” and, in the true spirit of statesmanship, designated August 14th as a “Partition Forgiveness and Reconciliation Day”? It is not too late. He can do it even now. Will it show weakness? No. On the contrary, it will show the strength and spiritual power of our hoary culture that has helped us to endure two centuries of foreign rule and yet remain true to our core values of compassion and inclusiveness. It is time that our leaders graduate from being politicians to becoming statesmen. As Yuval Noah Harari puts it, “Historians study the past not in order to repeat it, but in order to be liberated from it.”

*The author is a Chennai-based advocate, mediator and digital dispute resolution specialist.

Related:

PM Narendra Modi names August 14 “Partition Horrors Remembrance Day”

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Representation Image

In the background of a bunch of writ petitions filed before the Supreme Court by some Muslim women’s organisations and individual victims, challenging the regressive and arbitrary practices of triple talaq, halala and polygamy among India’s Muslims, the Law Commission has come out with a questionnaire on the viability of a uniform civil code. The timing of the release of this questionnaire close on the heels of the Union of India’s categorical stand against these arbitrary and unconstitutional practices before the Supreme Court, has raised concerns in the minds of those pressing for serious reforms in the personal laws of India’s Muslims.

 
One concern is that, this would enable the All India Muslim Personal Law Board (AIMPLB) – a self-appointed custodian and defender of Islam – to whip up a fear psychosis in the Muslim community and stonewall any meaningful outcome in the pending legal proceedings. Predictably, the (AIMPLB) has issued a call to all Muslims to boycott the questionnaire. That this stand is immature, illogical and shortsighted is not surprising, given the fact that the Board is like Rip Van Winkle who wakes up once in 20 years to scream that Islam is in danger.
 
It is for the Muslims of India to now exercise their collective wisdom and decide a response to such a perceived threat to their identity. It has been pointed out by a few people that the use of the word “common”, with reference to the civil code in the Law Commission questionnaire, instead of “uniform” used in Article 44, is mischievous as it reflects the Sangh Parivar’s avowed objective of submerging all the diverse cultural and religious identities into a “one culture, one nation” identity known as “Hindutva”.
 
The words of the Law Commission–“to harmonise the various cultural practices” – to express its objective, further reinforce this suspicion in the mind of a beleaguered community which is facing continuous onslaughts from the over-enthusiastic cohorts of the ruling dispensation. To add insult to injury, most of the questions pertain to Muslim personal law.
 
Having said that, what should be the response of the Muslim community to the questionnaire? Should it, (as mandated by the AIMPLB), boycott the questionnaire, or, should it participate in the debate and express its views on the viability and need or otherwise of a uniform civil code? Logically and rationally the answer would have to be “Yes” for the latter proposition. By boycotting the questionnaire and stonewalling any debate or discussion, the Muslim community is rendering itself vulnerable to a “common” civil code being thrust down its throat. And, if this common civil code has a tinge of saffron flavor, then the community will have only itself to blame.
 
On the other hand, by participating in the debate, the Muslim community would be demonstrating its openness to the democratic process and retain the moral right to question any code that seeks to submerge its core identity and values. And in this, the community would find support, not just from other similarly placed minority communities, but also from sections of the majority community itself.
 
It is also time for the Muslim community to introspect on how things have come to such a pass. That the “Shariah” law as practiced in India falls short of meeting the evolved standards of gender justice and equality is a given. Practices like triple talaq, halala and polygamy, steeped in patriarchal and medieval narratives, can hardly be regarded as just and fair.
 
Even a cursory study of the history and evolution of the Muslim Personal Law would reveal that the Quranic injunctions and hadith traditions were subjected to a process of logical study, interpretation and deduction by ordinary mortal minds having no pretensions to divinity.

The moot question is – are these practices really an integral part of the “Shariah”? Even a cursory study of the history and evolution of the Muslim Personal Law would reveal that the Quranic injunctions and hadith traditions were subjected to a process of logical study, interpretation and deduction by ordinary mortal minds having no pretensions to divinity. Their conclusions are known as “Fiqh”.
 
In India, Fiqh underwent substantial distortion under the British rule and evolved as Anglo-Mohammedan law, which actually passes off as the “Shariah”. Leaving aside the distortions brought in by the British jurists, the fact that the law could be interpreted by those living in the 7^th to the 11^th centuries to suit the then social conditions, leads to the logical conclusion that the changed social context warrants fresh interpretation by modern minds.
 
When the Hudood injunctions prescribing gruesome punishments for moral offences (such as stoning to death for adultery, amputation of limbs for theft and beheading for murder) could be replaced with more humane visitations like imprisonment under a uniform penal code (notwithstanding the spiritual mandate that the offenders who escape punishment in this life would suffer more gruesome punishments in the hereafter), there is no reason why unjust practices like triple talaq and polygamy (which are at best only permitted and not mandated), should not be given up. Why can’t Muslim men give up these misconstrued rights, which are not an essential or integral part of the practice of the religion?
 
Islam, as originally conceived, was a reformist movement that brought about sweeping changes in the established patriarchal system existing in the Arabian peninsula in the 7^th century AD. Unrestricted polygamy, polyandry, female infanticide, buying and selling of women and many other hedonistic practices were put an end to. The rights of women to hold property, to consent for marriage and to seek dissolution of an unhappy marriage were established and enforced. Traditions attributed to the Prophet of Islam even go into minute details of how gently and lovingly men should treat their wives during coitus.
 
The Quran declared that husbands and wives were raiment unto each other, thereby recognising and reiterating the equality of status between men and women. Practices like conditional polygamy were no doubt permitted, but under the circumstance of a lopsided male-female ratio caused by the ravages of prevailing wars. In the present era, where the converse ratio exists and where women command an equal status with men in terms of education, fiscal freedom and physical independence, it would be anachronistic and absurd to say that polygamy has any validity or justification.
 
To retain polygamy, restricted, conditional or otherwise, in a country governed by a secular, democratic constitution would be undermining the express promise of equality and the right to a life of dignity. The Quran itself unequivocally emphasises monogamy.

To retain polygamy, restricted, conditional or otherwise, in a country governed by a secular, democratic constitution would be undermining the express promise of equality and the right to a life of dignity. The Quran itself unequivocally emphasises monogamy.
 
Marriage as a contract is itself a revolutionary concept. It presupposes equality between the contracting parties. When a marriage cannot be contracted without the consent of both parties, it cannot also be terminated except by consent of both parties or through a process of arbitration (as prescribed in the Quran) or through judicial intervention (as practiced in many Muslim countries). There cannot be a unilateral, arbitrary and whimsical termination of the contract by one party alone without inviting penal consequences.
 
Obviously, capricious practices like triple talaq and polygamy are antithetical to the very idea of equality, which underlies an Islamic marriage. In this context, Muslims have to understand that there is nothing in the Quran or the Hadith traditions that prohibits a progressive approach to matters of social intercourse. It is wrong on the part of the Muslims to claim that giving up these unjust practices would be compromising on their religious identity.
 
The core identity of a Muslim is the belief that there is one God and Mohammed is His messenger. This belief is the essence of Islam and defines the real identity and faith of a Muslim and this is what is protected under Article 25 of the Constitution of India. Secularism is not a millstone to be hung round the neck of any one community. It is a liberating, and yet uniting, principle enshrined in the Constitution. It upholds the right to a life of dignity and equality and therefore binding on all.
 
Muslims have missed the bus by failing to get the personal law codified in conformity with the principles of equality and justice enunciated by the Quran and enshrined in the Constitution. The Muslim Personal Law (Shariat) Application Act, 1937, makes the “Sharia” applicable to the Muslims of India. However, the absence of a definition of Sharia, has led to chaos with seminaries and scholars issuing conflicting fatwas on the same issues. The victims of this chaos are not just the women but also the men.
 
A codified personal law would usher in the much needed clarity and consistency. While the AIMPLB slept over the idea of codification, the Bharatiya Muslim Mahila Andolan (BMMA), a women’s organisation based in Mumbai, boldly came out with a draft code. However, this courageous effort was met with cynicism and derision.
 
Now, with the prospect of a uniform civil code looming large, it would be wise to give up the paranoia and engage in a reasoned debate with the government and ensure that the secular values, religious plurality and cultural diversity, which define the greatness of this country, are not compromised at the alter of uniformity. An effort can still be made to get the personal law codified.

(AJ Jawad is a practicing Lawyer and Mediator at Madras High Court).

(This article first published on Live Law is being republished here with the writer's permission).

The post Choice Before Indian Muslims: Reform Now Or Repent Later appeared first on SabrangIndia.