The politics over Muslim Personal Law and Uniform Civil Code (UCC) has been heating up. Contentious issues are being debated in the popular media with the traditional appeals to the religious identity of Muslims and Hindus within their respective constituencies. From the vantage point of the Pasmanda, the question of UCC has been raised to create the binary of the Hindu versus the Muslim in order to entrench both identities as a monolith whole.
This entrenchment of communal identities is aimed at suppressing the caste fault-lines present in both communities. The suppression of caste fault-lines is necessary to hold on to the privileges accumulated under the Brahmanical-Saiyyadvadi social order. Thus, the demand for UCC helps the BrahamanvadiSavarna to consolidate its dominance over the Bahujan under the garb of Hindu identity and the opposition to the UCC helps the SaiyyadvadiAshrafiya to consolidate its dominance over the Pasmanda under the garb of a monolithic Muslim identity. Pasmanda is the social category which includes SC, ST and OBC who converted to Islam and are now dubbed as Muslims.
The UCC is not the exclusive issue used to construct this binary of the Hindu versus the Muslim. It is deployed in combination with various other cultural symbols which mark out the caste ridden diverse populace into two hostile groups.
The most prominent among them are Aligarh Muslim University and the Banaras Hindu University (Muslim modernity versus Hindu modernity), Muslim MadarssaEducation and Hindu Sarasvati Education (Muslim culture versus Hindu culture), the Muslim League andthe Hindu Mahasabha (Muslim Politics versus Hindu Politics), Muslim Personal Law versus Hindu Personal Law, Muslim Secularists and Hindu Secularists (Jinnah versus Gandhi), Muslim Fundamentalist and Hindu Fundamentalists (Iqbal versus Savarkar), the Muslim Liberal and the Hindu Liberal (MaulanaAbulKalam Azad versus PanditJawaharLal Nehru) and so on and so forth.
All these oppositional symbols can be ontologically understood by replacing the expression ‘Muslim’ by ‘Ashrafiya’ & ‘Hindu’ by ‘Savarna’. Similarly, the question of UCC can be understood within the dialectic of religious identity formation and the invisibalization of the caste identity and the need for their continuous reproduction through these hostile binaries.
The function of creating false binaries is performed as much by the secular, liberal and modern Ashrafiya-Savarna as by the priestly Ashrafiya-Savarna. In fact, the former often provides, with uncanny regularity, a momentum to the secular-communal bandwagon by invoking the symbol and then reprimanding their kith and kin on the other side of the pool.
When the Savarna demands the UCC by objecting to Triple Talaq or Polygamy permitted by Muslim Personal Law, the Ashrafiya ridicules Hindu Personal Law by pointing out that incidents of polygamy are higher among Hindus compared to Muslims or Hindus leave their women in the lurch without divorcing them due to stringent norms of divorce! The secular, liberal & modern Ashrafiya is better placed to achieve this result due to the superiority of his intellectual capital over the priestly Ashrafiya. It is no coincidence, then, that in the history of Indian subcontinent, the height of communal polarisation was achieved during the reign of Mr. Jinnah & Gandhi over Indian politics, both ofwhom had an impeccable track record of being secular-liberal leaders of their respective caste groups.
The Muslim League of Jinnah effectively killed the democratic aspirations of Abdul Qayyum Ansari in this process while the Congress of Gandhi substantially undermined the democratic space sought by Dr. Ambedkar.
In present times, this function is performed by leaders like SayedOwaisi and Subramanian Swamy. There is an inherent underlying unity in the apparent hostility of the two. Within the Gramcian frame of war of positions, both take a united position against Dalit-Bahujan-Pasmanda positions of material interests and seek to win the round by hook or by crook. It is often amusing to watch Ashrafiya intellectuals bat on the UCC while bowling to the Savarna in a playful display of bonhomie!
However, the question of the protection and preservation of the patriarchal privileges of the Ashrafiya in the garb of existing personal law is only partially answered by the above analysis as this question goes to the very root of caste system.
As explained by Dr. Ambedkar in his paper titled “Castes In India: Their Mechanism, Genesis and Development” patriarchy constitutes the core of the caste order.
Unlike hostile religious identity which is only a symptom of caste structure rather than the cause of it, patriarchy is the central pillar of the caste system itself. Therefore, the patriarchal privileges of Ashrafiya are not just protected under the garb of personal laws rather the garb of personal law itself is created by the patriarchal foundations of the Ashrafiya identity! Hence, patriarchy is the base on which Ashrafiya privileges are laid down and existing personal laws only partially support them. Naturally, Dr. Ambedkar underlines gender injustice in various forms as the chief mechanism of the origin of caste in India.
Both positions, in favourof and inopposition to the UCC are an outcome of an intuitive ‘higher caste’ consensus across religious categories rather than any pious allegiance to constitutional principles or Islamic tenets as they are made out to be. Neither the constitution mandates creation of the UCC nor does Islam oppose such a system as the very idea of UCC in practical terms is non-existent in both Constitutional & Islamic jurisprudence! The main reason for the demand for the UCC by the Savarnaand its opposition by Ashrafiya is due to the consolidation of communal identities by the invisibalizingof caste identities. Both functions go on to support caste order. In any case, there need not be any real conflict between a secular uniform civil code and religious separate laws as the former can not come into being without accommodating the later. In fact, the existing secular uniform civil code in the form of Special Marriages Act performs the very same function although in a very biased and unscientific manner.
Similarly, it is very much possible to develop a civil code without affecting the core values of Islam and cultural autonomies of ‘minorities within majorities’ if this question is approached from the vantage point of gender justice & justice to sexual minorities. If, however, the creation of a civil code is to be utilised as hegemonic tool of dominant groups belonging to any category which is inherent in all exercises of law making, then such a possibility is impossible to imagine, and hence futile to explore.
The Pasmanda identity, on the other hand, has emerged in opposition to minority politics as the later has failed to fulfill the aspirations of the former. It is similar to the emergence of Bahujanidentity which was formed in opposition to majority politics for materially similar reasons. The Pasmanda identity is relatively young and its arrival is and has been actively resisted by the Ashrafiya proponents of minority politics, in the present context by manufacturing an opposition to UCC.
Thus, the opposition to UCC through conservation of regressive laws and practices including Triple Talaq, Divorce without making sufficient provision for maintenance, Halala and polygamy along with the hegemonic symbols as discussed earlier continuously obstruct the articulation of Pasmanda concerns. It is evident that the UCC debate has no substantive objects to achieve apart from its role as consolidator of communal identities. Further, the question of gender justice can be addressed within the framework of existing personal laws provided that sincere efforts for reforming personal laws are made and the debate is not used to sustain the Hindu versus Muslim binary to sub-serve the Brahmanical-Saiyyadvadi agenda of a hierarchical social order.
Keeping this background in mind, the Pasmanda position on the UCC debateisrooted in ethical concerns of inter-sectionality. For this purpose I tentatively propose the following points for consideration by Pasmanda activists:
- Codification of all Personal Laws without reference to communal identities
- Incorporation of gender justice including justice to third gender as the guiding principle of all Personal Laws. In the immediate context it would mean undertaking the following reforms:
- Abolition of Triple Talaq
- Adoption of minimum waiting period of one year for any divorce to take effect
- Compulsory provision for maintenance of women after divorce till remarriage or till the time she finds an independent means of sustenance
- Abolition of Halala
- Universal application of criminal provisions relating to bigamy/polygamy
- Recognition of inherent equality of genders on issues covered by Personal Laws
- Legitimisationof theAll India Women Personal Law Board
- Legitimisation of the All India Pasmanda Personal Law Board
- De-legitimisation of the All India Muslim Personal Law Board
- Delegitimization of Madrassa’s and Mosques as the representative of Pasmanda concerns on the question of Personal Laws
- Preparation of a Draft UCC after incorporating these concerns
Ever since the Shahbano fiasco, the Saiyyadvadi-Ashrafiya obsession with the Muslim Personal Law has significantly strengthened the Brahmanical position against a Dalit-Bahujan-Pasmanda discourse. The Pasmanda movement hopes to prevent a repeat of this by adopting the principle of gender justice in the field of personal laws. The Ashrafiya leadership both secular and priestly is singularly incapable of undertaking the agenda of reforms in personal laws as it would mean a loss of an important tool for the reproduction of Ashrafiya identity. Therefore, the Ashrafiya position that the call for reforms must come from within the Muslim community is nothing more than dilatory tactics adopted to please their Savarna kith and kin in order to safeguard their caste privileges.
For the Pasmanda, choking essential personal law reforms would mean delaying the arrival of their legitimate social, economic and political concerns which have been suppressed for centuries.
(The author is Head, Glocal Law School, Glocal University-Saharanpur-UP)