Tag: Uniform Civil Code

9th March 2011

UCC and the contentious issue of polygamy

Continuing my discussion of the UCC issue (started here), here's are two further extracts from BFN. These will help clarify some of the comments received earlier.

EXTRACT

There is a potentially legitimate concern underpinning this Directive Principle. It is possible that things like bigamy and practices in Islam that (apparently) do not take appropriate care of divorced women drove the inclusion of this Directive Principle. The way for a government to deal with such evolving social expectations is to shift the agreed minimum standards of individual accountability. An umbrella of minimum standards of civilizationcan beestablished, not complying with which can be deemed to be criminal. Creating a minimum standard is not the same thing as having a UCC. It creates uniformity in outcomes and not in processes; and it is not a code, but a prohibition. This would be a mechanism fully compatible with freedom and flexibility of social evolution.

Left to themselves, societies and religions will constantly evolve. Ethical standards will also evolve. For instance, slavery is no longer acceptable whereas it was a part of most societies in the world till about 150 years ago. It was abolished only in the mid to late 1800s. As a society evolves, it re-defines the boundaries of individual accountability. Each society can therefore abolish, over time, ‘primitive’ social norms not compatible with civilization, including things like bonded labour, sati and child marriage. These prohibitions limit our choice but only in the interest of accountability and of equality of opportunity, and thus foster our freedoms; particularly the freedoms of children and women.

We know that polygamy (marrying more than one wife) was equally practised among all communities in India till the 1950s. The abolition of bigamy in Islam is one of the demands of the votaries of the UCC. Bigamy is now a potential candidate for such prohibition.However,there is a need for discussions and negotiations first. I have discussed the issues that potentially arise in this regard in Appendix 3 in the Online Notes.[i]

In a similar fashion, not as a set of prohibitions, but as a set of minimum acceptable accountability standards, a society can legitimately establish a requirement that women shall be looked after well after divorce, or such things. Citizens can always choose to deliver to themselves standards that exceed these minimum standards. I believe that these two methods, combined, will address all the underlying ‘needs’ of the votaries of the UCC. It is important to note that such generic methods to resolve underlying social concerns are topics for potential policy debate, which need to be discussed by each generation’s parliament. These are not matters for inclusion in a country’s Constitution. That can only be disastrous.

I would therefore urge the RSS and BJP to work with others to agree on these two sets of minimum standards for India. In closing this discussion, I have provided my suggestions for a personal law framework that will be compatible with freedom in the Online Notes. This manner of generic treatment of outcomes, not of processes, will also help to repeal the Hindu and Muslim laws enacted by the Parliament – something which it should never have done in the first place, for such matters are none of its business.[ii]

This is an extract from my book, Breaking Free of Nehru. CONTINUED – SEE APPENDIX BELOW

[i] [https://www.sanjeev.sabhlokcity.com/book1/BFN-Notes.doc].

[ii] The fact that a Muslim Women (Protection of Rights on Divorce) Act, 1986, had to be separately promulgated makes it clear that by interfering in one religious law – in this case Hindu law – the Pandora’s Box of all religious laws gets opened up, each creating needless controversy. The good thing is that, now, given this 1986 Act, and the Hindu laws of the1950s, it should be possible for a minimum standard to be enacted for divorce (for instance), and the religious laws repealed.

APPENDIX FROM ONLINE NOTES

Polygyny and polyandry

Polygamy (with polygyny being marriage to multiple women, and polyandry being marriage to multiple men) has roots in the traditional cultures of India going back thousands of years. Historically, polygyny arose from our tribal, warrior, past. Primitive societies were almost continuously at war, in which men tended to get killed in great numbers, leaving an excess of women over men. It was considered to be a social obligation for wealthier men to take on more than one wife, so that someone the surplus women could have a normal life. But constant war is not what happens, or should be happening, in modern free societies. The rationale for polygyny is now over. It is worth noting that polygamy has absolutely nothing to do with population growth in a society, which is related to the number of women in a society and determined by factors described in chapter 6, not by the number or type of marriages. Accordingly, India’s population hardly grew over thousands of years, despite the large incidence of polygamy.

At least till the mid-20^th century, between 1/6^th and 1/20^th of all marriages in India were polygamous, depending on the number of surviving women in that society. Rich men, whether tribal, Hindu, Buddhist, Jain, or Muslim, took multiple wives. Dasharatha, the father of Lord Rama in Ramayana, was a polygynist, as is King Jigme Singye Wangchuck of Bhutan today with his four wives. Even polyandry wasn’t frowned upon, though not actively encouraged. Draupadi of Mahabharata married five Pandavas (who had other wives too, each Pandava being separately polygynous). There was therefore significant freedom of choice on matters of marriage in India, and social norms were quite flexible. Until the Hindu laws (ironically not made by the Hindus but by the Indian Parliament!) forbade bigamy in 1955, it was prevalent both among Hindus and Muslims in India in roughly the same proportion—around 5% of all marriages—with Hindus perhaps being slightly more bigamous, on average, than Muslims.[1] Ritu Menon, a writer, noted in an interview in November 2004 that “In fact, bigamy is equally common among Hindus.”[2]

Freedom has a simple and clear message of accountability. What varies over time is our understanding of how this accountability is to be met. Today, on the matter of polygyny or polyandry, I believe that it is distasteful to human sensibility, and arguably in opposition to equality of opportunity, for a person to have more than one spouse at a point in time. In particular, our equal regard for women—who were not accorded the necessary equality of opportunity at one time, being considered to be the property of men—leads us to now withdraw our support for polygamy, just as modern society has withdrawn support to practices like headhunting, cannibalism, and slavery. Therefore, a Prohibitions Act (discussed in the main text) could reasonably prohibit bigamy just as it would, things like sati or child marriage. Such a prohibition is in favour of the life and freedom (particularly equality of opportunity) of women who have good reasons to be apprehensive about their fate in a polygynous marriage.

Islam is the major religion in India which has not accepted this position. But the Islamic view across the world, however, is changing. This issue is therefore now ripe for a careful re-think by Indian Muslims. Tunisia, a Muslim republic, prohibited polygamy in 1956. Turkey, which is secular but almost entirely Muslim country, prohibited polygamy even earlier, in 1926. Millions of Muslims living in Western countries have adjusted to laws that do not permit polygamy. Indeed, in the USA, England, Australia, and Canada, Muslims can face criminal prosecution if they enter into a polygamous marriage. In other Western countries such as France, Germany and Japan such marriages are deemed null and void. In addition, “There is a growing tendency towards monogamy in Muslim countries and this is the ultimate goal that various women’s organisations are encouraging”.[3] For example, the Sisters In Islam group of Malaysia issued a press release in 2003 entitled, “Campaign for Monogamy”.

I am aware that some Muslims brothers in India may see this call to review of their position on bigamy as an ‘external’ imposition on their religious practices. People don’t like change and don’t like being asked to change by others. But the original tribal conditions which led to polygamy have changed. There are other good reasons why something that has ‘worked’ for thousands of years may no longer relevant. After all, we do not have kings in India today, either. Things change. Muslims in India may therefore consider paying attention to what their own sisters’ feel on this matter, and consider what is in their best interest.

On balance, in the interest of freedom of choice, particularly given this custom was practiced widely till very recently, I suggest that Muslims of India arrive at their own understanding of this issue in the light of the evolution of the philosophy of freedom and of Islam itself. With Islamic countries themselves prohibiting this practice, such a change may not be very hard. Either way, a democratic discussion within Indian Islam on this issue is very important. A consensus is preferable, for that would mean that the position against polygyny is internalised, and seen as the right thing to do, not as an imposition from outside.

An referendum organised by the Muslims for themselves (at their own expense) could suggest the way forward. If a majority of Muslims agree to such a prohibition, then the government can legitimately create a general prohibition on this subject. If, however, they do not agree to it, then the situation on this matter should revert back to that point in time when every person in India could potentially have more than one spouse. It is inconsistent to prohibit only some people from having multiple spouses. Whether this means that the entire Indian society will go ‘backward’ is a matter for each individual and for social and religious reformers to consider, not a matter for governments to get involved in. The only thing a government can do in such cases is to treat every citizen the same.

[1] “A study (1971) shows that percentage incidence of polygynous marriages (where a man has more than one wife) is 5.80 per cent among Hindus. The incidence among Muslim is in fact slightly lower at 5.73 per cent. The incidence of polygynous marriages is highest among certain tribes (15.25 per cent) followed by Buddhists (7.97) and Jain (6.72 per cent).” Census of India 1971, “Polygynous Marriages in India: A Survey”, Miscellaneous Studies, Monograph No 4, Registrar General and Census Commissioner, New Delhi. From an article at

http://www.sacw.net/2002/CensusandCommunalism.html

[2] Interview by Rashme Sehgal for InfoChange News & Features, November 2004. See

http://www.infochangeindia.org/analysis49.jsp. Ritu Menon is co-author of Ritu Menon and Zoya Hasan (2004). Unequal Citizens: A Study of Muslim Women in India. Oxford University Press.

[3] Sudargo Gautama (1991). Essays in Indonesian Law. Bandung. p.158

8th March 2011

We need uniform civil law, not uniform civil code

Article 44 of the Constitution states, ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’.

One may well ask, ‘What is wrong with this innocuous statement?’. To keep the record straight, we first note that the subject under discussion is not about civil law. We already have a consistent framework for such matters. It is about a civil code. But what exactly is a civil code? It turns out that it is all about personal law. Civil code is ‘code’ for ‘matrimonial matters, guardianship, adoption, succession, and religious institutions’.[i] Even before we think further about it, this must raise a red flag. Personal law is surely a dangerous thing to demand uniformity about in a free society.

An individual’s choice of a religion, if any, and actions taken by that individual to manage the journeys of his or her soul as part of the requirements of that religion, is surely a purely personal matter. Among related matters, marriage as a religious sacrament is clearly a human relationship in which, unless a very good case can be made for it, the state has absolutely no business to intervene. The government’s role of providing justice relates largely to damages we cause by commercial improprieties and criminal actions. We do not want a government peeking inside our family unit without either a commercial impropriety being involved or a criminal action. In any event, we don’t need a government to tell us how to marry for the institution of marriage predates modern government by fifty thousand years or more. On the other hand, I agree with the Supreme Court which said on 14 February 2006 that registration of marriages must be made compulsory. Registration of a marriage would be a public record of the facts, including which type of marriage was performed. Registration does not lead to uniformity.

All societies have developed their norms of marriage, including relevant principles of accountability. These principles of accountability are often designed to balance the economic liabilities of the two families or communities that come together through the marriage. There is no uniquely ‘correct’ way to bring these liabilities together; plenty of flexibility and scope for negotiation exists. These accountabilities are largely a creature of convenience and consensus within the boundaries of particular religions or social structures. It cannot be up to a government to decide which mode of consensus is appropriate for an entire segment of society. In general, therefore, I should be in a position as a free citizen to negotiate suitable agreements in a marriage which would then bind, explicitly or implicitly, all parties in the relationship. As long as a group of free people ‘self-regulate’ in this manner, and accept a particular norm for balancing their liabilities, no outsider, including the government, can have cause to get involved.

Many social norms relate to matters on which for a government to legislate will make it look silly. For instance, we cannot legislate the level of affection that must exist between husbands and wives, equally as we cannot legislate that a father must invariably provide for an equal bequest to all his children, irrespective of the care and effort that the children took of their parents when they were alive, or irrespective of the obligations enjoined in the parent’s religion. These are matters of personal judgement and belief. The state cannot have a role in these matters.

Indeed, if I am not free to choose my religion, my culture and my own way of life, I would question the point of my existence itself. We must be free to live, and to be what we want to be, not what the state coerces us into becoming. A free citizen must be free to choose from among an array of competing suppliers of marriage laws, religions and cultures; just as the citizen is free to choose between different brands of shampoo. A state can legislate minimum standards for shampoos to prevent people from putting in poisonous ingredients, but it cannot tell us which shampoo to buy or how to shampoo our hair. And we must also remain free to use our home-made shampoo as well.

This freedom implies that those who are not satisfied with the traditional norms of existing social groups must always be free to explore and adopt, or to create alternative norms. As a feeble example, I should be able to choose to marry under the Special Marriage Act(which is what I chose for my marriage) if I do not subscribe to any religious practice (which I don’t). But more generally, I should be free to create my own rules of accountability for marriage. A marriage contract that meets socially acceptable minimum standards should be equally binding as any religious or other form or marriage.

We must be very sceptical of attempts to impose a mythical ‘best’ way on us to marry or

to pass on our inheritance. The free society’s government does not standardize things merely because it can do so. Uniformity among personal laws is not a virtue but an unwarranted imposition,just as demanding uniformity among various brands of shampoo is not a virtue. This ‘hands-off’ approach may appear to allow for continuation of problematic things like dowry, but that is not how it will play out. Madhu Kishwar has demonstrated that dowry is often used as a way to prevent the equitable transfer of inheritance to daughters. Therefore a system without dowry but with equitable inheritance, which takes into account the extra costs incurred by sons (or daughters) in looking after the elderly parents, is a much fairer system. However, rather than having a government prescribe such a thing, I suggest that left to itself Hinduism will move on its own to a system without dowry but equitable inheritance, particularly as children get more educated. The point therefore is that people must be free to choose any appropriate norm they please on personal matters. We can’t have a government telling us what to do. On the other hand, if I were to harass someone for dowry, or cause a dowry death, then that would be a criminal matter to be dealt with under the usual criminal law. Either way, the message for the government is – stay away from uniformity or prescriptions in these matters, and let societies evolve their own understandings.

I have a feeling (I may be wrong) that Article 44 was introduced at the behest of some Hindus –not all of them – to compel conformity by Muslims to their evolving views on monogamy and succession. If that hunch is true, then it was an insidious imposition of majority rule; an example of mobocracy. Originally, some of the religious leaders, whose views BJP presumably now represents, opposed both the Hindu laws as well as the UCC. This RSS position is outlined by K R Malkani in his 1982 book, The RSS Story:

Shri Guruji [Golwalkar] went so far as to say that Muslim Law could continue separately, without being replaced by a Uniform Civil Law, as laid down in the Directive Principles of State Policy. When subsequently asked whether uniformity of law would not promote national integration, he said, ‘Not necessarily’.[ii]

The BJP should move away from a blind faith in uniformity and for the sake of uniformity think of the underlying issues. Article 44, being incompatible with freedom and democracy, must be scrapped.

[This is an extract from my book, Breaking Free of Nehru]

[i] Mitra, Subrata K, and Fischer, Alexander, ‘Sacred Laws and the Secular State: An Analytical Narrative of the Controversy over Personal Laws in India’, India Review, Vol. 1, No. 3, July 2002, pp.99–130.

[ii] Sikand, Yoginder, ‘Hindutva and the Dalit-Bahujans: Dangerous Portents’, 2004, [http://www.countercurrents.org/comm-sikand230204.htm].

23rd March 2010

Women in Islam

I'm starting this post re: the treatment of women in Islam. The material here will advocate for the liberal solution (not Uniform Civil Code) that I have proposed in my book, Breaking Free of Nehru.

Note that this post will evolve over time, basically being a collection point for my notes. So if you have stumbled on this post by accident, come again after a few months.

ARTICLES

Sharia law would harm Aussie Muslim women, Ida Lichter, The Australian March 23, 2010