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Journalism of Courage
In the normal course, the Supreme Court would make news if it came up with a radically new interpretation of the Constitution. This is an unusual occasion when it 8212; in this case, the chief justice himself 8212; has made headlines for merely re-stating one of the directive principles of the Constitution.
Chief Justice Khare8217;s passing observation obiter dicta and regret over the state8217;s inability to bring in a uniform civil code has caused such a commotion in Parliament and elsewhere. With a mere passing observation the chief justice has, perhaps unintentionally, revived the old debate on a uniform civil code for all communities.
Only politics as confused as India8217;s could have produced a situation so loaded with contradictions. What did the founding fathers mostly Congressmen of one ideological shade or another have in their minds when they enshrined this directive principle in the Constitution?
These were after all the same wise men who made secularism one of the central pillars of our republic. It could not have been their intention to plant the seed of some awful anti-minorities idea in the same august document. As with other directive principles, they were only saying they thought these things are desirable for India but because the time is not ripe, or perhaps because political discourse is too immature yet, they were happy to be patient8212; meanwhile let us all work together to create the environment where these 8216;ideals8217; could be achieved.
A plain reading of the Constitution, simple analytical commentaries on it in school textbooks even of the pre-Murli Manohar Joshi vintage would tell you the founding fathers had seen it not as a sop to the Hindu right then opposing the reformist Hindu Code Bill. They had seen it as a modernising, empowering, civil rights issue.
The Constitution was written by people who were liberal, and imaginative enough a half century ago to appreciate the secular ideal. These were not communalists or pseudo-secularists and they saw the problems in a republic, that constitutionally celebrated diversity, with each community following its own set of personal laws.
First, this was always going to cause heartburn as each community saw the others deriving undue benefits from its own peculiar set of laws of marriage, family and inheritance. The Hindu men, for example, would grudge the Muslims their four wives or easy, one-sided divorce, the Muslims and Christians would resent the privilege the rich among the majority gave themselves by way of the HUF Hindu Undivided Family status, which allowed them to have two income tax accounts.
Second, and more importantly, they saw, in the continuation of so many archaic, religion and tradition-based family laws a system inherently unfair to women and, at any given point of time, to the weaker member of a family.
Even Nehru never really repudiated the idea of a common civil code. He said, repeatedly 8212; and often in the context of the debate on the Hindu Code Bill 8212; that it was necessary to reform the Hindu personal laws first, and then bother about the minorities.
You8217;d wonder how his own view on a common personal law would have evolved had he, or Nehruvian politics, survived a little bit longer. Could it be that, rather than cede this agenda entirely to the saffron right, he would have actually followed the 8220;directive8221; of the Constitution and worked towards building a genuine, probably de-polarised national consensus on essentially an issue of modernisation and reform of family laws and women8217;s rights?
As with much else, it would be tempting to blame the saffronites in this case too for distorting the debate. After all when Pravin Togadia talks of reforming Muslim personal law or improving the fate of Muslim women or when Narendra Modi teaches them virtues of family planning while hundreds of those who killed and raped Muslims and burnt their houses walk free, they are not really advancing any great ideas of the founding fathers.
But so unimaginative and intellectually bankrupt are the Congress and whatever8217;s left of the liberal Left that they have ceded, what should have been a civil rights agenda aimed at bringing equity and fairness to all, particularly women, to this loony right. It is probably because of the short-sighted and vote-oriented way that Indira Gandhi structured her post-1969 politics that the Congress psyched itself into painting the very idea of the common personal law in deep saffron.
Opposing it then became the cornerstone of its policy of appeasing Muslim clerics who, it believed, controlled the minority votes for ever. It paid in the short run. But it also led Rajiv Gandhi into making what must rank among the four or five greatest political blunders made in independent India.
Not only did he reverse through legislation the Supreme Court8217;s liberal, landmark judgement in the Shah Bano case, he also threw to the wolves the man with the most liberal, modern, and genuinely Muslim voice in his party. That was just after poor Arif Mohammed Khan had made such a stirring speech in Parliament in defence of the judgement that both, the right and the liberals, hailed it as one of the most articulate expressions of the modern 8212; and changing 8212; Muslim mind.
The rest is history, and it is still in the making. With that one silly step Rajiv ultimately lost his party both the Muslim and the Hindu votes in the Hindi heartland. He panicked when he saw the disaster and compounded it by trying to please the Hindus by re-opening the Ayodhya issue with an election-eve shilanyas. This left the Muslims furious and Hindus, obviously, confused and wondering as to who, among the Rajiv-Buta Singh Congress and the Real McCoy. The choice was obvious: the BJP.
See the reversal of fortunes. Then, Rajiv Gandhi reversed a liberal Supreme Court judgement to strike a blow for communalism on both sides. This made the Ayodhya-Babri issue the monster it is now. Now the same Congress and the liberal Left want the same Supreme Court to somehow solve Ayodhya for them. One would imagine Chief Justice Khare 8212; and his brother judges 8212; should have more to complain about than merely the non-implementation of a common personal law.
Postscript: In his heyday in the Golden Temple the late Jarnail Singh Bhindranwale demanded a separate religious status and personal law for the Sikhs. The RSS reacted with alarm. I happened to be interviewing Bhindranwale on the day the then RSS chief Balasaheb Deoras reacted saying Sikhs were no different 8212; actually they were merely 8220;keshdhari unshaven Hindus8221;.
8220;So what will he call Muslims then?8221; Bhindranwale asked, 8220;sunnatdhari circumcised Hindus?8221; But soon enough he was playing down his demand for that separate, non-Hindu status for the Sikhs, and thereby hangs an obvious tale which you should have guessed by now8230; a whole horde of his rich Sikh supporters and financiers came to him protesting the snatching away of their HUF privileges!
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