Shah bano case- justice delayed is justice denied
Vishwajeet Singh Bhati
(Querist) 25 October 2011
This query is : Resolved
I am working on my college project on how the principle of 'justice delayed is justice denied' applies to the landmark case of Shah Bano. I have figured out two heads-
1. The case taking a total of 7 years to reach the SC.
2. Also, the bringing in force of a Uniform Civil Code in India which is still not in force after 64 years of independence.
Please suggest me about other heads I could put in my project.
prabhakar singh
(Expert) 25 October 2011
visit following site:
http://www.legalserviceindia.com/articles/sabano.htm
prabhakar singh
(Expert) 25 October 2011
also this site:
http://jurisonline.in/2010/03/uniform-civil-code-an-unfulfilled-vision/
prabhakar singh
(Expert) 25 October 2011
The time: the late 1980s. An old and penurious woman had knocked on the courts for justice after she felt she was wronged in the way her husband divorced her. The matter, in due course, reached the Supreme Court of India [ Images ], where the learned judges upheld her right to maintenance. An open and shut case, it should seem, but for the Bench's reference to the need for enacting a Uniform Civil Code since after all it was part of the Directive Principles enshrined in the Constitution which the nation was duty-bound to implement -- in due course.
This seemingly innocuous event was a crucial moment in the nation's history. Upset by what they felt was the judiciary's interference in their personal law in deciding the Shahbano case, the Muslim orthodoxy -- in the persona of Z A Ansari and Syed Shahabuddin -- convened what they knew best: street-level power. As the muezzin gave the call of Islam in danger, the masses thronged the streets.
One would have thought a prime minister with the biggest parliamentary majority in history would have the courage to withstand such tactics but Rajiv Gandhi [ Images ] was made of different stuff. It was not as if the nation had not been warned of the Gandhi scion's inexperience.
In the run-up to the 1984 general election Ramakrishna Hegde had warned Indians on television that it was not the time for on the job experiment, but the nation, impressed by the son's composure at his assassinated mother's funeral, felt otherwise. Never mind there was evidence otherwise at that moment: as Sikhs were being butchered across the capital and elsewhere Rajiv Gandhi had glossed over the murders with the throwaway line: 'When a giant tree falls the earth is bound to shake a little.'
The Muslim mass protest was like a giant tree falling, and it shook the Gandhi government. Its next actions are still reverberating across the polity: one, using its brute majority it brought in legislation overturning the Supreme Court verdict (thereby presenting a precedent on a platter to the Hindu Right to reject the court order if it went against the Ram temple in Ayodhya); two, to 'please the Hindus' upset at this capitulation before the mullahs it unlocked the Ram Janambhoomi temple, which breathed life into the Bharatiya Janata Party's [ Images ] efforts to consolidate the Hindu votebank.
The period: July 2003. Yet another innocuous case before the Supreme Court of India, seeking to strike down Section 118 of the Indian Succession Act which prevents Christians from willing property for charitable and religious purposes, and the Bench has again regretted the government's inability to enact a Uniform Civil Code.
SC favours Uniform Civil Code
Will 2003 see a reprise of 1985? In fact, the situation is fraught with possibilities. Unlike the last time, the Hindu Right is not only in power today, but has also managed to replace the centrists as the party of discourse. The agenda is being drawn by the Right, with the rest reacting to it. It is a seminal moment.
Will religious orthodoxy and the lumpen once again join hands to scuttle what is a progressive, and essential measure, after painting it as an attack on established religion?
Or, will the BJP, as it had done so cleverly then, once again present the entire argument in an anti-minority light to win over majority votes? We are in election mode, remember?
The reality is that common law will never become a reality in India so far as it is only promised by the BJP. And so far, there is no sign that any of the major political -- even the 'enlightened' ones such as the Communists -- will include it in their agenda, leave alone manifesto.
And why should they -- the best way to create communal votebanks is by keeping the people separate. Everything is hunky-dory till the time someone like the BJP comes along and goes, 'hey, why can't I do the exact same thing with the majority what these fellows are doing with the minorities?' and suddenly the game becomes deadlier.
So long as the Uniform Civil Code is pursued only by the BJP and its associates, the minorities will see it as Hindu law being stuffed down their throat. And the BJP, by making it an anti-Muslim plank, has managed to keep the truth about the UCC from its votebank. Which is that a lot of negative aspects currently part of the Hindu law, will be jettisoned. In fact, when the truth about the UCC is known, greater opposition will come from the BJP's traditional Hindu voters than from the minorities. It is all right to harp on the UCC while in the Opposition; being in power enforces certain responsibilities, one of which is not to bluster.
Does India need the Uniform Civil Code? Of course it does -- even Italy [ Images ] has one, as do the rest of the developed world. Nowhere is a scenario like in India, of various personal laws jostling together, allowed. But it needs to come on the heels of a political consensus, which is what the BJP, as a responsible party in power, needs to evolve.
This is the BJP's biggest challenge. Its reign has been marked by total absence of consensual politics -- except on issues where it realises its absence of parliamentary majority needs the Opposition's -- read Congress Party's -- support. Where it does not, it has done as it pleases -- as with Pakistan where it first blustered, then bullied, and finally backed down. Governance, especially in a parliamentary democracy, is through consensus, and so long as the BJP does not learn this simple fact it will only rule, not govern.
For the Congress, this is chance for redemption. For party President Sonia Gandhi [ Images ], this is chance to rectify her husband's monumental blunder. She could either seize the opportunity to involve her party rank and file in convincing the grassroots of the need for the Uniform Civil Code. Or she can rely on her numerous advisors who will fill her ears with the tale that the quickest way to win back the minorities' confidence, and votes, will be to oppose the measure. Just as her husband had done.
Before she sets out on the same path, it will help her to remember that though Rajiv Gandhi set out to please both Hindus and Muslims, he only succeeded in alienating both.
prabhakar singh
(Expert) 25 October 2011
Should secular India have an uniform civil code?
The Telegraph-Calcutta Club National Debate
Calcutta Club, March 13, 2005, 18:00
We are sitting in an ocean of black heads, with the stage brightly lit in front, with the logo - The Telegraph Calcutta Club National Debate. Night hangs over us, a few stars visible through the Kolkata fog - a moon crescent like the communist scythe is hanging just above the stage. After waiting here for about an hour, the speakers have finally cone up on stage. On the left are the rightists - Narendra Modi, Seshadri Chari, Vasundhara Raje, and Arun Jaitley, and on the right, not quite the leftists, but at least the pink - Mani Shankar Aiyar, Syed Sahabuddin, Fadi Nariman, and Salman Khurshid. In the middle, at a small desk all for himself, is Dileep Padgaonkar, who is moderating. The President of the club welcomes everyone and apologizes for the fracas in front of the club where protesters are burning effigies and chanting - Narendra Modi go away, and a huge police contingent is on duty, and the from comments I am overhearing in the crowd, I gather that the commissioner himself is present.
The motion before the house is : To be truly secular, India needs an uniform social code. The saffronites are in favour, and the congress votaries are opposing. Each speaker gets 10 minutes of monologue each, followed by a brief rebuttal by the two team leaders, after which it will be put up to vote.
Arun Jaitley is the first to take the podium. He reminds us that in November 1948, in the constituent assembly, BR Ambedkar, A Munshi and others all said that they were working towards eventually achieving an uniform civil code. Were they to repeat these speeches today, there would be an outcry. Jaitley raises the Shah Banu case, which will no doubt be mentioned again, as an extreme example of religiosity being used to violate the fundamental rights of an woman citizen, who was thereby reduced to destitution. Whereas rituals relating to birth, marriage, inheritance, etc. are certainly in the realm of religion, there are areas where these infringe on guarantees provided in the constitution, such as polygamy, oral divorce, etc, and in these areas the law must step in to ensure a minimal set of rights for its citizen.
Now to the other side - Mani Shankar Aiyar. He starts by looking at the two panels, and points out that all four on the other side are self-proclaimed "believing" Hindu's, while their side have two muslims, a parsi, and himself, an atheist. (applause) He then asks why "the noblest Roman of them all," Arun Jaitley, in his six years as law minister, never could bring a bill for an uniform civil code (laughter). Why he could not in his six years, bring a bill to repeal the Shah Bano law? Why did his solicitor general not move the Supreme Court saying these laws are unconstitutional? Because secularists on his side prevented him, and he did not have the moral courage to stand up to his rants. All of us Indians are hyphenated citizens - we carry with us our linguistic, caste, and religious identities. Before the Hindu Civil Code of 1956, they were subject to the Civil Code of 1898. Why did the Hindu's wish for a separate law? Because they wished for a structure in keeping with their practices. The visionaries of the constitution did not specify a deadline for a secular civil code, because each community would need to take their own paths to this code, taking into account all the different jurisprudences that are prevalent in the country. Similarly, during Arun Jaitley's tenure as minister, a law for Christian practices have been introduced and passed nearly unanimously. The last group, the Muslims, will be happy to submit to a law, but it has to be one that they themselves will define. Until such time as they evolve their own consensus on this matter, we cannot impose on them the will of others, especially not a group of hindu fanatics. He ends by quoting Gandhi - 25 July 1947 - The Hindu religion prohibits cow slaughter for the Hindus, and not for the rest of the world. The prohibition comes from inside, and any attempt to impose it from outside is despicable.
Compared to the seriousness of Jaitley, but also perhaps because he is speaking later, Mani Shankar Aiyar definitely comes up tops. He makes the audience laugh, and he makes good points.
The next speaker is Seshadri Chari - he gets a laugh by opening with - "Dear Hindus, Muslims, others, and Mani Shankar Aiyars". Chari is the editor of "The Organizer," the RSS magazine (what a tired word it has become - this "mouthpiece") . He points out that the fact that the four people on this side are Hindus was by invitation, not something they had any control over. The rest of his speech is more polemical than substance - "Does the Congress have a leader who can lead, and not follow the crowd."
Fali Nariman has a wry sense of humour. He says that "I am not a Hindu, I am not a Muslim. I am merely a poor fish in a shoal of sharks." And he goes on, "And sadly, we are now an endangered species." He plays to the gallery when he says, If India was to be secular, the capital should have remained Calcutta. Jaitley mentioned the Constituent assembly, he says, but he did not tell you all of it. Ambedkar went on to say that the civil code, if enforced, will be enforced only by the will of its citizens. Women, whether Hindu or Muslim, are oppressed in India, not because one has a codified set of rights, and the other does not, but because women are being oppressed by men in all levels of the Indian polity. He relates the story of how the Parsi intestate laws of the 1890's became gender-neutral only in 1991, after intense debate and consensus within the community. The minorities are particularly sensitive to externals who wish to interfere in the way they govern themselves.
Vasundhara Raje highlights the fact that she is the only woman. Given her royal background, she is the only speaker to mention that she has been working at the "grass-roots" on the plight of women. In the law, the father is the guardian of the legitimate child, while the mother is that for the illegitimate child... but most of her polemic is addressed at the imbalance of laws affecting women, and she fails to direct her comments on the secular issue. Goa, she points out, has some good elements in the civil code (no triple talaq, no polygamy), but exceptions are reprehensible (bigamy permitted if first wife has no male issue, matrimonial property managed by daughter's husband). But one can start from these, look at the best practices in all the codes, and come up with an uniform code.
Syed Sahabuddin harps on the notion of "consensus". He points out the difference between the words "uniform" and "common", which he says, really mean plurality and singularity, and stresses this difference (while this sounds like more rhetoric, I wonder if it may actually be part of the semantics, especially in this context). There are measures for interpretation of the Muslim code, which is both Shruti (Quran) and Smriti (Hadith etc) which together constitutes the Shariyat. Times are changing and many islamic communities have adopted changed modes. Even in India, the muslim community is moving towards change, on their own. But the psychology of minorities is such that any attempt to impose change will only slow things down. If we want an uniform code, why is there a separate Hindu law of taxation (the Hindu Undivided Family code). If uniformity and common-ness is the same, then why have any diversity at all - why not have only one religion, one language, one kind of food?
Narendra Modi speaks in Hindi, but he is extremely eloquent. The secularists do not feel secure unless he is sitting next to a minority person. Does he not feel he can be secular on his own strength? By the same token, we could call the other side anti-woman! That India is secular, is not in question. It is a pluralist society, it has been secular, it is secular, and it will remain secular. But is it fair that in a family, there should be one rule for the mother, one for the father, and one for the children? When he asked this of children in a school in Aurangabad, they said in one voice - there should be only the same rule. What is clear even to children, is unfortunately unclear to my intellectual friends on the other side. If the Shariyat law is so dear to our friends, why not propose it also for criminal law, why only in civil code? No - because it is not convenient to them. This is the land where its citizens, not looking to a votebank, not looking to follow the crowd, produced leaders like Ram Mohun Roy who were able to fight the entrenched system of Sati, and then widow remarriage. When the Muslims go to the US, how come they can live under an uniform code, does it violate their muslim identity? [applause] We don't want a VHP/BJP code. Let there be a committee, formed by eminent people, not from the BJP or VHP or RSS, constitutional experts and other learned men. Let them choose the best practices from every community. Let us come up not with an uniform civil code, but a "modern" civil code, suitable for the 21st "saadi".
Salman Khurshid starts by refuting Narendra Modi - are we going to ask children for what we want - why is it then that we don't allow children less than 18 years old to vote? A rather poor repartee - when one could have said that in families there actually are different rules; e.g. only the mother can nurse the child, resulting in some special treatment to her at these times. As for women - the points raised by the woman on the other side were all for gender justice, and we invite her to join us on this side, and we will all fight for her causes here. We in fact tried something bigger, we wanted to give this country a woman prime minister, but those on the other side would not have her (this fawning reference is of little relevance to the debate, and perhaps does not belong here). But they didn't anticipate that she would not want this position of power, but would only want to serve. As for the United States, Muslims there follow the same code, but even in their code, Quakers can marry as many wives as they want, and this is permitted because it was a special group in the US and they needed a special law. If the group wants it, they can conjoing their wills and get the law changed. Thank god Mr. Modi that everyone is not like you - in fact, if everyone was like you, we would not need any uniform civil code, not just that - we would not need any kind of law at all.
In closing, Arun Jaitley brings the women's equality into the debate, by noting that the primary reason for having different laws relating to marriage and inheritance, while all other laws were common - were to perpetuate the male superiority. Mr. Salman Khurshid brings in the issue of homosexuality. Should we consider the fate of homosexuals first, when Indian women are suffering from injustice enshrined in the law?
Mani Shankar Iyer rehashes the argument that why not undo the Hindu Undivided Family code first? Gandhi didn't look to change any other group's laws - he only attempted to improve the Hindu practices. If the code of any group is to be altered, it must be done from within that group. The civil code must step very carefully between ritual and justice. Will Narendra Modi be cremated or interred after his death - should the law decide it for him? The difference between that side and this, is that they are 85% Indian, but on this side we are 100% Indians.
Dileep Padgaonkar's turn now to sum up. We are tired after all this peroration, and he is mercifully brief. He says that we need to rise above the tired rhetoric and see if this is really a question the nation should even be debating. I personally agree - I think there is a rightist bias even in choosing such a topic for the agenda... Had it been titled "Should all religions be made to submit to the same set of laws" may have quite a different response. In any event, there is to be a vote on the motion. By a show of hands, the motion carries. A significant majority in the audience think that India should have an uniform code. Although I had come in today thinking that it should, by the end of the evening I must say that I was one of the hands among the minority, which goes to show that I had not thought of some points on the other side, especially that in a pluralistic society minorities need their own path to their own consensus. But for now, the majority has spoken.
The crescent moon has set long ago, and people are already filing out under the open night sky.
On to dinner.
Amitabha Mukerjee March 14 2005 04:40AM.
Lightly edited from on-site notes.
prabhakar singh
(Expert) 25 October 2011
visit:
http://ngkjrs69.sulekha.com/blog/post/2008/07/why-we-need-a-uniform-civil-code.htm
prabhakar singh
(Expert) 25 October 2011
also visit:
http://www.scribd.com/doc/21797943/Uniform-Civil-Code-in-India
prabhakar singh
(Expert) 25 October 2011
this one too:
http://www.airwebworld.com/articles/?SHOWALL_1=1
ajay sethi
(Expert) 25 October 2011
well advised by mr prabhkar singh . google search is best for obtaining information
Sankaranarayanan
(Expert) 25 October 2011
yes i do agree and like to express the same word given by mr sethi. Mr prabhakar singh spend more time to collect all information and given to the owner of the query .
Sailesh Kumar Shah
(Expert) 25 October 2011
appreciable work done by Shri Prabhakar Singh.
Shonee Kapoor
(Expert) 25 October 2011
Much appreciated.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
