Sunday, June 10, 2012

Labyrinths of the law By Mukul Kesavan - The Times of India

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Date: Sat, Jun 9, 2012 at 9:03 PM
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Your comment on the article ''Labyrinths of the law'' is now displayed on''Mukul Kesavan has brilliantly sailed through the labyrinths of the law; but he has concentrated on the trees, ignoring the wood. India is a secular country. It respects religions and gives full freedom of religion to its all its citizens, irrespective of any difference on the basis of religion, ethnicity, caste, region et al. Why then, Indian government should interfere with the various religious practices and traditions of its people. The first person to dent India's secularism was none other than our first Prime Minister, Jawaharlal Nehru, who worked for Hindu Code bill. Just so that he was a Brahmin, why he should have involved state into the so-called reforms of Hindu society. He should have left it to the society itself to carry out reforms, without bringing in the state authority into the picture and thus damaging the very letter and spirit of India's constitutional secularism. The confusion in the relationship between state and religion/religions has now become so insidious, that unless we visit the very definition of secularism, all branches of the government. the executive, legislature, judiciary and police will be at each others neck, coming out with their own versions of the reform of India's religious society. India should get out of this maze and let people handle their affairs in their own way. Let India follow the same principle of turning over the business of business to the business and turn over the religious reforms to the reformers of the religions carrying with them their own people and coming our with their own solution. The government should get out of the business of religion, altogether and follow India's secular constitution in full spirit and letter.''To reply to this comment , or see the whole conversation , click here

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Labyrinths of the law

Mukul Kesavan | Jun 9, 2012,
The Delhi high court's judgment upholding the right of a 15-year-old Muslim girl to stay married and rejecting her mother's claim that she was a minor who had been abducted against her will, has set in motion a drama with which we are familiar. The script was written long ago in the course of the endless argument about Muslim personal law and polygamy and refined during the Shah Bano controversy over a divorced Muslim woman's right to maintenance.

These issues — polygamy, maintenance for divorced women and the legal age of marriage for women — are substantial matters but the debates they set in motion are so rehearsed, they seem like formalist exercises.

On the one side there are always modern-minded people, Muslim and non-Muslim, appalled by the 'medieval' subjugation that Muslim personal law visits on Muslim women. They are joined by feminists who, while sympathetic to the circumstance of minorities in India, feel that the patriarchal biases of all religious establishments need to be resisted in the name of gender justice. These politically correct lobbies are always discomfited when their bandwagon is boarded by unwanted passengers, namely Hindu rashtravadis, revelling in the rare privilege of venting about Muslims in a politically correct way.

On the other side you have another set of secular, pluralist, modern-minded people who are not Muslim, who argue from a chivalric position. The Muslim community in this view needs time and space to reform itself from within. This is, in essence, the same argument that Jawaharlal Nehru employed in the mid-1950s when he exempted Muslims from the reformist republican zeal that resulted in the Hindu Code Bill. Then it was the need to make Muslims feel secure in India after Partition that called for forbearance while now it is the marginalisation of Muslims as documented by surveys and reports that justify tact and patience.

These Galahads find themselves in the company of conservative Muslims like Zafaryab Jilani, executive member of the All India Muslim Personal Law Board, whose main concern is the conservation of Muslim personal law: not with a view to reforming it over time, but as a way of buttressing Muslim identity in India. In this view, Muslim personal law represents a residual link with the sharia and gives legal substance to the idea of a Muslim community.

Muslim conservatives are sometimes joined, in newspaper reports, by 'moderate Muslims', a peculiarly offensive category that seems to assume that being Muslim is a condition that needs moderation. The term is used for Anglophone, middle-class Muslims who feel that their modernity has alienated them from their community and therefore take conservationist positions for the sake of their own credibility.

These two coalitions confront each other every time an issue relating to Muslim personal law makes headlines. So entrenched are their positions and so rehearsed their rhetoric that the specificity of each issue gets buried.

I want to suggest that this judgment by the Delhi high court raises difficult issues that need to be carefully considered by all of us, Muslims and non-Muslims, regardless of where we position ourselves vis-a-vis these two coalitions.

This ruling on the age of marriage has implications for the age of consent. Till recently, a man who had sexual relations with a non-Muslim girl younger than 16 was guilty of statutory rape. By the logic of the Delhi high court's ruling, the same act within marriage between a Muslim girl who has achieved puberty (and this could happen at 15 or even earlier) and her husband, counts as consensual sex. To a layperson, not trained in the law, this seems to create a circumstance where a conviction for statutory rape, a criminal offence, will be determined by the faith of the girl in question. This seems like a bad idea, if only because the provisions of the Indian Penal Code are meant to apply uniformly to all Indian citizens regardless of their religious affiliations.

At the same time, instead of turning this ruling into an opportunity for Muslim-baiting, this might be a good time to reflect on Parliament's recent decision to raise the age of consent to 18. In a country where underage marriages routinely occur in rural (and urban) India and where teenage sex is likely to become commonplace in certain urban milieus, lawmakers need to consider the implications of criminalising consensual sex amongst young people, regardless of faith.

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