A common civil code can further include the Muslim community in the national mainstream. Religion must be restricted to the spheres which appertain to only religion, and the rest must be regulated and modified by the state, writes RAVI SHARMA
The stance of the All India Muslim Personal law Board (AIMPlB), as reflected in its affidavit filed before the Supreme Court in Shayara Bano’s case and its frenetic response to the questionnaire issued by the law Commission of India on uniform civil code, is reminiscent of the atavistic tendencies prevalent amongst the Muslim clergies. The great Sayeed Ameer Ali succinctly concluded about this in his book, The Spirit of Islam, first published in the year 1923, when he wrote: “Prophet has consecrated reason as the highest and noblest function of human intellect. Our schoolmen and their servile followers have made its exercise sin and a crime.”
The obstinate resistance of Muslim bodies against the constitutional mandates of equality, dignity for every citizen and that of uniform civil code, is not just a call against social evolution but, in reality, is borne out of their quest to keep the evils of separatism alive in our politico-social domain, using the facade of ‘freedom of conscience and religion’.
The façade is fallacious. Article 14, which guarantees equality; Article 15, which prohibits discrimination; and Article 44, which obligates the state to endeavor to secure for its citizens a uniform civil code, is as much an integral part of the Constitution as “freedom of conscience and religion”. Freedom of religion under Article 25 itself contemplates the state “making law providing for social welfare and reform” — the objective that the uniform civil code proposes to attain.
While admittedly no religion can be reformed out of existence, its practices are “subject to public order and morality”. No religion can sanction anything inherently unjust and that which is unjust is not immune from scrutiny and modification. This conforms to the mandate of Part III Article 15(3) of the Constitution, that requires the state to make special provisions for women and children, and also fulfill the objectives of Part IV of the Constitution, which requires the creation of a just social order. The substance of such action would have nothing to do with religion even if it may be incidentally affected.
Such being the constitutional position, one wonders why Muslim clergies, instead of confirming to the societal evolution, are wasting their energy in exerting theological and political pressure in order to secure an ‘immunity’ for their regressive personal laws, that too in circumstances when the same ‘immunity’ has in the past resulted in the appeasement and exploitation of the Muslims. This immunity has politically isolated the entire community from the national mainstream.
It is not out of context here to remind the AIMPlB of the wise words of Jawaharlal Nehru, who mentioned while discussing the Report on Minorities in the Constituent Assembly, “If you seek to give safeguards to minority, you isolate it. May be you protect it to a slight extent, but at what costIJ At the cost of isolating it and keeping it away from the main current — I am talking on the political plane of course — at the cost of forfeiting that inner sympathy and fellow feeling with the majority. Now, of course, if it is democracy, in the long run or in the short run, it is the will of the majority that will prevail. It is a bad thing for any small group or minority to make it appear to the world and to the majority that ‘we wish to keep apart from you, that we don’t trust you, that we look to ourselves and therefore, we want safeguards and other things’. The result is that they may get one anna in the rupee of protection at the cost of remaining 15 annas.”
The experience of past 70 years shows that Nehru’s apprehensions were not misplaced. Rather, his prophecy has stood the test of time. Minorities in India are suffering in the clutches of their clergies and its the obligation of the state to free them from their sufferings.
The only way to proceed is to remove the barrier which separates the Muslims in the social and political domain. This process should begin with consultations on the issue of uniform civil code and its timely codification. Enough time has been lost.
The uniform civil code as envisaged in the Constitution, aims at amity, and it’s time for the minorities to realise this and get rid of the isolationist outlook on the issues. This will help the entire community. Religion should not be allowed to be practised under the diktats of a selected few. The clergy should be made to realise that it cannot manipulate religion. It must be restricted to spheres which legitimately appertain to religion; the rest must be regulated, unified and modified in a manner that we evolve as a strong and consolidated nation.
(The writer is an advocate, practising in the Supreme Court)