Saturday 1 February 2020

In India the Supreme Court is supreme (Sunday Guardian)

By M D Nalapat

In the 21st century, any policy based on religion is an anachronism.

According to the Times of India (30 January), the All India Muslim Personal Law Board (AIMPLB) claims that the Supreme Court of India has no authority to rule on whether or not women should be allowed to enter mosques. In their view, “the matter falls squarely in (sic) religious domain”. While the AIMPLB graciously consented to Muslim women entering a mosque to offer prayers, a caveat added was that such visits were not “obligatory”. Such a duty impliedly applies only to men. Further, freedom by women to enter a mosque and pray within its precincts was subject to the private decision of the “muttawali” of each mosque. Should such an individual decide that women should not be permitted to enter, they would be barred from doing so. And because such decisions formed part of the expansive “religious domain”, the AIMPLB was clear that even the Supreme Court of India had no jurisdiction over such a matter. This when in any civilised state, women should have freedoms similar to men, including in the matter of entry into religious places. Stoning to death an adulterer or chopping off the arm of a thief is also considered to form part of the same doctrine that the AIMPLB regards as immune from judicial review or executive action. The AIMPLB does not seem in much of hurry to demand the right of stoning presumed adulterers to death rather than—as is now the law in India—allow them to escape any taint of criminal conduct. Will all the good men (women being absent) of the AIMPLB at some future date demand that Muslims who have indulged in adultery should be stoned to death, or that Muslim thieves should have an arm of theirs sawed off rather than face prosecution? Although the Constitution of India seems to be silent on the matter of carving out an exception in the matter of court proceedings to matters that are defined as religious, in practice, governments beginning with that headed by Jawaharlal Nehru have implemented successive policies that have differentiated between Muslims and Hindus in numerous matters. In the 21st century, any policy based on religion is an anachronism, no matter the community favoured or discriminated against. A growing number of individuals within the modern, moderate majority of the Muslim community silently or otherwise cheered on moves by the Narendra Modi government in matters such as Triple Talaq or Article 370. An atmosphere was being created for the smooth adoption of a Uniform Civil Code (UCC), as the fundamentalist fringe was finally ceding leadership of the Muslim discourse to moderate elements for the first time since Mahatma Gandhi made the Congress Party back the Ali brothers in their obsession with reviving a doomed Caliphate in Turkey. Rather than the UCC, what was instead brought forward by the government was the Citizenship Amendment Act (CAA). The messaging of this was so poorly done that the CAA has given a pathway to the Wahhabi fringe to seek to regain control over the Muslim discourse. Someday, the Supreme Court of India may need to decide whether the separation in law of “minority” from “majority” is or is not opposed to the basic structure of the Constitution, which is anchored on the equality of all citizens.
Laws and regulations based on a binary division of the population may have arguably been needed were Partition avoided and therefore policies were needed to ensure that the siren song of the Two Nation theory ceased to hold so many Muslims in thrall. Mahatma Gandhi was seen by Hindus as being the one leader who could defeat the Jinnah-Churchill conspiracy to divide India, but in the end, the Mahatma had to watch helplessly as the subcontinental unity for which he had pledged his very life was shattered. Again and again dividing the population of India into Hindu and Muslim (aka “majority” and “minority”) simply serves to perpetuate the embers of the Two Nation theory that are these days growing in intensity in a manner that is disturbing. Those fringe Hindus and Muslims who regard the two faiths as forming separate populations are once again walking in the path chalked out by M.A. Jinnah and Winston Churchill. Future historians need to analyse why the leaders of a country that witnessed the horrors created by Two Nation edicts (such as Morley-Minto in 1909) persisted even after 15 August 1947 in implementing policies that distinguished between Muslims and Hindus. The Supreme Court of India has taken up the matter of the entry of women into places of worship not just of Muslims but of other communities as well. Should any law—or governmental practice—reflect the toxic Two Nation binary that separates Hindu from Muslim, it would be doing severe damage to the future of a country where communal harmony is essential for future success. Rather than seek to place Muslim women on a different level regarding rights than Muslim men, the scholars of the AIMPLB need to celebrate the fact that tens of millions of Muslim women in India have freed themselves from colonial-era ghettoes of prejudice and live and work happily among those of other faiths. Muslim women in India have become leaders of their nearly 200 million strong community in spreading the benefits of modern education, whereas several men still remain fixated on the concept that the only suitable education for Muslims should be that imparted by religious schools. The Holy Quran enjoins each and every believer to discover and cogitate individually on its divine message, rather than outsource its interpretation to a group of men who regularly commit blasphemy by claiming that they alone know the path that will lead to Paradise in the afterlife. Such a promise is used by them to beguile the unwary into obedience to dictates that are often contrary to the gentle and merciful message of the Holy Quran, which is explicit that the Almighty is the creator of all humanity, and not just those belonging to a single faith. In other words, all human beings are children of the same Almighty and therefore need to be treated as sisters and brothers to each other. The hurt and anger caused within the Muslim community by the exclusionary clauses of the CAA should not be a pathway through which the fundamentalist fringe within the Muslim community retakes the leadership role in public discourse and thereafter in state policy. Both Muslims as well as Hindus should ensure that leadership be firmly in the hands of those who refuse to accept the toxic Morley-Minto-Linlithgow-Churchill-Jinnah edict that Hindus and Muslims form Two Nations. Since Independence, successive governments have allowed too many pre-1947 Two Nation separation walls to continue rather than tear them down, as they ought to have done. The Holy Quran enjoins constant awareness of changing conditions and adjustment to them. In the 21st century, in any religion, giving males the right to enter places of worship while denying the same to females is anachronistic. This is especially so in the Muslim community, where women are leading the way in education and reform.

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