Home to discrimination

The controversy that has erupted over the rape of Imrana Bibi by her father-in-law and the subsequent annulment of her marriage by the Darul Uloom Deoband embodies a tale of enduring injustice sustained by unprincipled politics, a weak parliament and reluctant courts. The former president, K.R. Narayanan, once pondered over whether the Constitution has failed us or we have failed the Constitution. The saga of ?personal? laws leaves one in no doubt about where the blame lies.

The very nomenclature of the law governing family affairs as ?personal? is less about what it is and more about what it is not. It certainly is not ?personal? in the sense of operating between persons, for the law of contract is no less inter-personal than the law of marriage. A ?personal? law indicates that it is not the business of the political process and the state to interfere with ? it is a claim to be free from being accountable to anyone and justifying the state of affairs. It is akin to calling domestic violence a personal issue between the husband and wife, and therefore everyone else should keep out.

What is shocking is the acceptance of this position by the political process. Mulayam Singh Yadav?s delegation of his own intellectual faculty by saying that the ?decision of the Muslim religious leaders in the Imrana case must have been taken after a lot of thought? reflects a viewpoint since Shah Bano that family law should not be judged by any standards of reasonableness, justice and fairness.

The very idea of different laws for different religious communities, which grant unequal rights to people on the basis of their religion and sex, falls foul with the guarantee of equality in the Constitution. As the supreme law of the land, the Constitution clearly indicates that any law that is contrary to its declaration of fundamental rights must be invalidated by the Supreme Court and the high courts. The religious freedom guaranteed by the Constitution is subject to the primacy of fundamental rights, and in any case does not extend to secular matters such as family, marriage and divorce laws.

One would have assumed that 55 years after this egalitarian aspiration was expressed by the Constitution, much of family law would have become just through judicial intervention. Sadly, the judiciary has not lived up to its constitutional mandate.

The Bombay high court was probably the first court to be confronted with the question soon after the Constitution came into force. In State of Bombay v. Narasu Appa Mali (1952), the high court shockingly declared that ?personal laws? were beyond the purview of a constitutional scrutiny and need not therefore uphold fundamental rights!

Instead of overruling this clearly wrong decision, the Supreme Court lent its own authority to the validity of the position. In Krishna Singh v. Mathura Ahir (1980), the Supreme Court said that a fundamental right guaranteed by the Constitution ?does not touch upon the personal laws of the parties?.

These cases carve out an exception for a set of laws, that do not even have parliamentary sanction, from the scrutiny of the highest law of the land. The Supreme Court tests even constitutional amendments to see if they violate equality, which is part of the basic structure of the Constitution. But a customary law governing family matters, which can be repealed by simple legislative majority, has been put on a pedestal higher than the Constitution itself. This position defies justice as well as common sense.

The discourse on family law in India assumes a helpless Muslim woman as its main protagonist. The sensationalized portrayal of the Shah Banos and the Imranas in the media makes them ideal victims at the hands of the fanatic other as well as unwitting heroines of the secular/ communal cause, all at once. These portrayals hide numerous lesser victims, whose individual sufferings might not be interesting enough for the media, but raise difficult ethical questions nonetheless.

Even to this date Hindu women do not have equal property rights as Hindu men, especially in matters of succession and right to agricultural property. The right to adopt is still not available to most non-Hindus. Another most obviously discriminatory aspect of customary Hindu law is the concept of the Hindu undivided family. The HUF is considered as a separate legal entity and has many financial benefits for tax purposes. The denial of this benefit to Muslims and Christians is as much a denial of equality guaranteed by the Constitution as is the denial of rights by the respective ?personal? laws to Muslim and Hindu women. Saying that Muslims have ?benefited? from these laws is simply false and mischievous. This is not to deny that those who resist reforms in the personal laws also suffer from prejudiced myopia.

The political process has failed the Constitution as much as the judiciary. In promising a uniform civil code, the Constitution hoped that the parliament would respond to the demands of equality. Such a code need not make all customs and rituals ?uniform? ? the aspiration behind the promise is an equality of rights to all citizens, irrespective of religion and sex.

The All India Muslim Personal Law Board has done immense disservice to the cause of Indian Muslims by painting them as a monolithic illiberal, intolerant and unjust people. The need for a genuine representative leadership within the community, which is alive to its pressing material needs instead of demanding the right to treat people unfairly, cannot be overemphasised. Voices of dissent from the newly formed Muslim Women?s Personal Law Board and other such boards are a welcome challenge to this monolithic portrayal of the Muslim community.

Blindness to discriminatory aspects of Hindu law has allowed the majoritarian Right to portray the issue of ?personal? laws as problem of a fanatic minority. If the Bharatiya Janata Party is principled in its demand of a uniform civil code, it must accept that such a code will outlaw the triple talaaq as well as the HUF, that Hindu women shall also be given their due share of rights. A ?uniform? law cannot choose to grant equality in some respects and discriminate on others. The onus is upon the BJP to demonstrate that it is not using the bodies and rights of Muslim women to advance a sectarian agenda.

The Congress? initial silence was deafening, while its delayed attempt to shelve the debate on personal laws, citing technicalities in Imrana?s case, betrays signs of defensive nervousness. The left has to demonstrate that it is doing more than paying lip-service to equality in condemning the fatwa. Spending a fraction of the political energy it invests on the question of disinvestment on gender equality will surely help matters. The power to make laws on family matters is shared by the Centre and the states in the concurrent list. If the left is really serious about the issue, amending the laws to ensure equality in the states ruled by Left Front governments will be a good beginning.

The ?secularists?, ? la Mulayam Singh Yadav, have demanded a suspension of rationality and fairness in respecting the ?personal? laws of the minorities. This is as much an attempt towards political segregation of the Muslim community from the national mainstream as is singling the community out for criticism of the laws applicable to it.

A good faith debate towards the goal of securing equal rights for all citizens needs to ensue. Meanwhile, the judicial tolerance of unjust and unconstitutional laws must end. There is nothing ?personal? about family law. It is time we reclaimed it as the problem of everyone interested in equality.