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| MARGINAL NO MORE?
Will India's Hindu nationalist government walk a moderate line? March 20, 1998 |
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Questions asked
in this forum:
Other political parties claim to have religious roots, but are not called fundamentalists. Why the double standard? Why is the BJP support of a uniform civil law considered an anti-minority position? What is the significance of small, independent parties in this election? Will the BJP embrace multinational organizations? Is a there any reason for minorities to worry about a moderate BJP government? 
Question:
Why is the support of a uniform civil law for all India's citizens viewed by some as an anti-minority measure?
Professor Varshney responds:
A uniform civil code is an anti-minorities measure if it is imposed upon the minorities, but not if the minorities themselves want it. Basically, the state has no business to interfere in the private lives of individuals, until the private disagreement takes a criminal form. In other words, one cannot justify domestic violence on the ground that it is a private or family matter. But short of violence, how individuals wish to lead their lives is something that most political philosophers would like to leave to individuals themselves. Religious doctrines have historically determined the social mores about marriage, inheritance, divorce etc. Unless those governed by these religions wish to reform the religious doctrine, the state should not interfere.
Similarly, if any individual wishes not to follow the religious rules about marriage and divorce, he or she should not be forced by the religious authorities to act against his/her wishes -- that is another point at which the state can step in. A state-mandated criminal code for all is a necessity in modern societies, but not a state-mandated civil code. Religions should be allowed their historical role in the latter, with the proviso that those wish to opt out of "religious personal laws" should be protected by the state.
Professor Brass responds:
This has a history. Before Independence, when the Pakistan movement was in full swing, a tacit understanding was reached between the leaders of the Indian National Congress and the traditional, orthodox representatives of the Muslim community in India that, in an independent India, the Congress would not undertake to integrate Hindu and Muslim civil laws into a common code without the acceptance of the Muslim leadership. On the basis of this understanding a significant section of the Muslim community, that is to say, a good part of the ulema (Muslim clerics) opposed the Pakistan movement. These Muslim clerics knew very well that Jinnah, the leader of the Pakistan movement, was as thorough-going a non-religious person as Nehru, the predominant leader of the Congress at Independence. So, they had no desire to participate in the Pakistan movement. In the new Pakistan, they would face threats to their religious control over the Muslim community. At the same time, support for the Pakistan movement would have left them and all Islamic institutions vulnerable in India after Independence. That is, the new leaders of India might have said, in effect, well, all you Muslims supported Pakistan, now why don't you go there? Or they might have felt less restrained in their dealings with Muslims generally.
That bargain between the Congress and the Muslim leadership was kept throughout the post-Independence period. Rajiv Gandhi almost upset it in a famous case in 1985 known as the Shah Bano Case, but he changed tack in the middle of this controversy to calm the angry sentiments of the Muslim conservative and religious leaders. In this case, the Supreme Court of India made a ruling affecting the rights of Muslim women in divorce proceedings. At the end of the controversy, however, Parliament passed a law that, in effect, wrote Muslim law on the matter as the law of the country for Muslims. The BJP has used this historic bargain and the Shah Bano case as a basis for its argument that the Muslims have been "pampered" in post-Independence India and that they have refused to become integrated fully into the Indian legal system and, therefore, have refused to become fully Indian by insisting on adhering to their personal laws pertaining to marriage, family, and inheritance, which are the principal types of law involved. Like so much of BJP ideology and policies, some people suspect that it uses issues such as these to arouse anti-Muslim sentiment rather than to create a unified nation in which Hindus and Muslims are equal citizens. So much of its political rhetoric and practices have been in fact anti-Muslim that it is hardly surprising that many people doubt its bona fides on the matter.
Professor Embree responds:
The support of a uniform civil law for all citizens is viewed by Muslims (and to some extent by Christians) as an anti-minority measure because they believe, first of all, that it is part of a concealed agenda to enforce the will of the Hindu majority on every one - that the uniform code would be a Hindu code, since it would be passed by a majority in Parliament. This problem is rooted in the curious provision made in the mid-nineteenth century as a concession to all religious groups: to let people be governed as far as personal law was concerned-- marriage, divorce, inheritance, adoption - by the laws of the religious community to which they belong. It was essentially done so that the Indians could not complain that the British were trying to impose their religious laws on them. This is not a matter of choice: government laws require that a Muslim be governed by the Muslim law. The demand by both secular groups and Hindu nationalists coincide: why not have one law for all Indian citizens, personal law that had no religious reference at all - as is more or less true in this country. (The opposition to single-sex marriages in this country is an exception of religious groups seeking to have their beliefs part of the law.) Most Muslims see the move for a universal law as an attack on the basis of their family life - inheritance, divorce, marriage. In India, divorce for Muslims (men at least) is very easy, and many non-Muslims and at least some Muslims, regard this as needing reform for the protection of women's rights. Also, Muslim men are not required to pay alimony to their divorced wives. Also, Muslim men are not required to pay alimony to their divorced wives. Very few Muslims have more than one wife: yet they see the demand for a law requiring monogamy as aimed at their religious and social beliefs. The Muslim answer is, of course, that this is their way of life, and Hindus should not interfere with it. By contrast, there is more or less universal law for all Hindus-- laws enacted after independence gave all Hindus, no matter what the sect they belonged to, the same rights in regard to divorce and marriage; and the right of daughters to inherit with their brothers. These laws are very similar to laws in Western democracies. So secular minded people argue for the same laws for everyone. But Muslims see the Hindu nationalists arguing this way in order to weaken the family rights of Muslims. This is a very complex issue. It is worth noting, however, that Muslim feminists join Hindu feminists in demanding changes in the law that would give more protection to Muslim women.The BJP support for a uniform civil law is that it all citizens, under the Indian constitution are equal, but that providing for personal civil law defined in terms of religious community, denies the equality of all Indian citizens. The BJP, its leaders insist, believes in freedom of faith and worship for everyone, and the present legal enforcement of Muslim personal laws is a denial of this equality. This argument can be seen, of course, as self-serving, but it is hard not to recognize that it has considerable validity, The BJP, it should be noted, has softened its demands for a uniform code, recognizing how divisive it could be, even though one suspects that a majority of the people of the country favor it. I expect that if they ever attain a working majority, they will move towards a uniform code.
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