Books
THE POLITICS OF PERSONAL LAW IN SOUTH ASIA: Identity, Nationalism and the Uniform Civil Code
by Partha S. Ghosh. Routledge, New Delhi, 2007.Partha S. Ghosh, a perceptive student of South Asian history and politics for three decades, in this offering makes an analytical foray into one of the more keenly debated political and emotive issues in India and the region since colonial times, one which remains a subject of bitter political debate. The crux of his argument is elaborated in the third chapter titled, ‘It is Politics, Stupid!’ In any case, a study in the context of the two interlinking variables mentioned in the subtitle – identity and nationalism – has to depend on political factors.
The study has immense contemporary relevance for India. Despite a constitutional promise made in Article 44, Part IV of the Directive Principles of State Policy, which is non-justiciable, that ‘The State shall endeavour to secure for all the citizens a uniform civil code throughout the territory of India(.)’, given the emotionally charged post-partition atmosphere and its potential sensitivity in the electoral arena, this politically hot issue was put in political and policy freeze. The Bharatiya Jan Sangh did attempt to generate some sparks, but really managed to heat up the matter only when in its BJP reincarnation it emerged as the second largest party on the platform of Hindutva. Nevertheless, it failed to translate the issue of uniform civil code into law while leading the NDA coalition for six years, in the main because its coalition partners were unwilling to go along. In this context, the South Asian perspective is critical for a holistic analysis, because colonial India has given birth to three states, two of which are Islamic. Sri Lanka with four religious communities and Maldives with Muslim only population too add variety to the experience and thus analysis.
Interestingly, despite personal law being an emotive issue for each community, changes have been made through governmental initiative, despite community leaders tendingto exploit the sentiments of their co-religionists for maintaining the status quo. Obviously, it is this mindset and politics that adds volatility to the debate. Since identity is critical to nation building and to the question of nationalism and political mobilisation, the issue as to how communities conduct their personal affairs falling within the legal realm becomes significant in attempts at balancing the relationship and binary interaction on such issues between civil society and government.
Historically, the changing ruler-ruled relationships following military conquests led to inter-societal intermingling of customs as well as fresh legal impositions on personal lives. A spilling over of disputes from the societal realm to the realm of state also brought in adjudicatory changes. However, the most far-reaching changes came with formal codification of laws in the spheres of civic life and state-society relations with the introduction of an alien cultural milieu under the British and other colonizers. A traditional-feudal society’s interaction with a modernist and modernizing social value-system found itself facing amazing paradoxes, particularly that of preserving social, customary and legal identity while simultaneously wanting to be identified with the perceived ‘superior’ western way of life, which had acquired a gloss for being the lifestyle of the conqueror and the ruler. Simultaneously anti-colonial struggles sharpened identities and the race for protecting identity markers, including customs now projected as personal laws, no matter how regressive. Nevertheless, the colonial rulers succeeded not only in codifying a large body of laws, including personal laws such as those concerning sati, they were even able to reform some of them.
Post-independence politics in India and in each of the South Asian countries created fresh social and political compulsions. While the demands of a multi-cultural society and a highly competitive political and constitutional system in India have created one kind of discourse, in Islamic Pakistan and Bangladesh the issue has taken a different shape. The prevalence of a highly regressive mindset and system amongst the Hindus in Bangladesh and a nexus between the Muslim and Hindu fundamentalists come as a revelation. What we confront is a continuing tug of war between fundamentalism and modernism across communities in each society.
Processes, politics, social dynamics and policy ambivalence marking each of the complex situations has been analyzed with insightful lucidity by Ghosh with the help of facts, data and prevailing discourses. He has walked through the definitional and theoretical maze with aplomb, described and analyzed the complex issues of law with clarity and simplicity. In the Indian case, the analysis of the post-independence political dynamics, while both framing the Constitution and subsequently, dealing with this question politically, would help the students of social sciences in India acquire a clearer understanding of this question. Particularly fascinating are the accounts, some of them well-known, on how the national leaders after independence differed on such critical questions relating to ‘personal’ spheres of the society and how even a modernist of Nehru’s stature was forced to be cautious, if not reticent, in thinking of interfering in such religio-social matters.
Putting the debate in a comparative perspective not only enhances the understanding of status-quoist interests operating in social and political realms, it also gives a wider picture of the options available should the leadership in India develop a non-partisan stance on the issues relating to personal law and introduce reforms, if not attempt to bring in a uniform civil code. It is inadequately appreciated that personal laws touch upon a whole range of issues related not only to marriage, divorce and adoption, but also the substantive questions of individual and group rights, women and child rights and so on. This diligently conducted study comes at an appropriate time in India’s social and political history. Hopefully, Ghosh’s non-partisan inquiry will help both the social and political leadership to find solutions to a number of related issues.
Ajay K. Mehra
POLITICS OF INCLUSION: Caste, Minorities and Affirmative Action by Zoya Hasan. Oxford University Press, New Delhi, 2009.
EVEN as it is globally recognized and hailed as a successful ‘new’ democracy, India continues to remain a deeply unequal society in both social and material terms. What complicates the issue of inclusion is that disadvantages and deprivation are not restricted to any single group. There are groups which have historically been victims of ‘active exclusion’ due to the working of social processes like the caste system and continue to face deliberate discrimination. There are also other groups which have become victims of ‘unfavourable inclusion’ in post-colonial India primarily due to their minority status in a divergent social plurality.
Policy-makers in post-colonial India have taken some measures aimed at ameliorating the deplorable socio-economic conditions of various disadvantaged groups. Inclusionary policies have been put into place to enhance their representation in public institutions and the power structure. What has, however, not been adequately recognized by successive governments, policy-makers and academics is that there has been a kind of distinctiveness as well as divergence in the process of framing these affirmative policies. While responding to exclusion, policy-makers think primarily of the historically oppressed groups, i.e. SCs, STs and now OBCs, which become the prime focus of the affirmative policy discourse, and not the religious minorities. This notwithstanding the fact that the minorities too remain as backward and often even more under-represented than the former categories. Low income, low productivity and low merit are not the sole markers of the lower castes but of most minority groups, especially the Muslims. Why is it then that only the caste question is located in the framework of social justice, equality, and democracy whereas the minority question remains relegated to the domain of identity politics? The ‘secular’ political parties and their leaders, often prefixing ‘Maulana’ before their names, remain in self-congratulatory mode by claiming to provide ‘protection’ and a ‘dignified life’ to the minorities during their regimes.
Zoya Hasan, an academic as well as a member of the National Commission for Minorities, underscores the need to give due recognition to the historical discriminations that rationalize the affirmative action policy towards the historically disadvantaged castes. Her complaint, however, is that policies aimed at ensuring a fair sharing of power and resources are not simultaneously extended to all the social groups who are equally marginalized on the basis of race, religion, and ethnicity. If caste can be the legitimate basis for reservation then why not religion, more so if there are necessary indicators to prove marginality? Equally, if special educational and cultural rights can be given to the minorities on the basis of religion then why not the special economic and political rights? Hasan explores these questions but not very forcefully. She is, however, firm in suggesting that instead of relying principally on caste to define marginality, social and economic criteria should also be taken into consideration. She repeatedly asks why the existing affirmative policies cannot be revisited and supplemented to evolve a ‘forward looking, egalitarian, and just approach of dealing with disadvantages.’
Hasan especially focuses on the Muslims who, she argues, remain grossly under-represented in the domains of education, politics and administration, even when compared with the level of representation of the historically oppressed castes, i.e. dalits and the backward castes. She presents empirical evidence in support by presenting the data provided first by the Gopal Singh Committee Report (1983) and then the Sachar Committee Report (2006), both revealing in graphic detail the extent to which Indian Muslims have been excluded from the developmental process.
The shocking figures underline the desirability of measures that can provide an adequate representation to the Muslims in the political system and governance. Besides giving them a legitimate voice in the democratic bodies, it would also enable them to influence affirmative policy decision-making process regarding their community and thus possibly help them be better prepared to accept an unfavourable decision. Consider that the overall average representation of the Muslims in all 14 Lok Sabhas constituted so far approximates a mere 5.79%, which is less than half of their share in the country’s population. In the absence of a ‘more rational delimitation policy’, even constituencies with a high concentration of the Muslim population often remain reserved for the SCs. The figure is lower in case of the representation of the women legislators from the community. The Muslims have also been victims of under-nomination in terms of ticket distribution by all mainstream parties, including the Congress, the ‘natural party of Muslim affiliation’.
While the geographically dispersed nature of the Muslims goes against them in the first-past-the post electoral system, caste and communal factors also contribute to ensuring the community’s under-representation. For instance, in UP where Muslims constitute 19% of the population, the proportion of Muslim MLAs which was earlier between 8-10% came down to 5-6% in the post-Ayodhya movement phase. The under-representation of Muslims in public employment is testified by the Sachar committee report submitted in 2006 showing that the Muslim employees in all government employment and PSUs was 4.9% and 7.2% respectively. In the key central services of IAS, IPS and IFS, their percentage further dips to a mere 3.2%.
The uneven pattern of empowerment becomes clear when these figures are contrasted with the ascendancy in the nomination and presence of the backward class candidates in the legislative bodies as well in public employment, testifying to their recently acquired clout in democratic politics in post-Mandal India. Clearly, reservations in public employment helped provide an impetus to the process of their inclusion. Moreover, caste-based political mobilization not only gave rise to ethnic parties but also encouraged national parties to give tickets to the numerically significant OBCs. In contrast, there has been little serious institutional or political effort to rectify the under-representation of Muslims in the public domain, even if we leave aside providing reservation on the basis of being a minority.
The two recent documents on reform of the electoral system, namely the Law Commission’s Report (1999) or the National Commission to Review the Working of the Constitution Report (2002) as well as the Fourth Delimitation Commission (2007), however, failed to take into consideration the issue of the under-representation of Muslims in the public domain. There has been little debate about the possible strategies of inclusion for the minorities which could have taken the form of adopting a proportional representation system or, if that was not possible, at least ensuring more party nominations in proportion to the overall population of Muslims in the country. In fact, there has been a lack of consensus on policies for the religious minorities in the wake of the rise of Hindutva forces. Even the ‘secular’ UPA government has been unable to take any substantive measures to implement the Sachar Committee’s recommendations barring some welfarist measures, possibly for fear of being accused of indulging in minority appeasement.
The National Sample Survey data has clearly shown that Muslims are not merely under-represented in public employment but are also among the most deprived groups along with the SCs and STs. Nevertheless, unlike the Hindu SCs and STs, the reservations for Muslim dalit castes belonging to broader category called arzal (excluded) has still to be accepted despite the Ranganath Mishra Commission recommendations. The counter argument is that any reservation on communal basis would undermine the constitutional project of secularism and national unity, and that Islam (and Christianity) does not recognise the caste system. Ironically, the same set of arguments could as easily be advanced against the subsequent extension of reservations to the dalits professing Sikhism and neo-Buddhism.
The official and judicial position, however, is that affirmative action is admissible on the basis of social backwardness if defined in caste terms but not on the basis of minority identity. Thus post-Mandal Muslim OBCs belonging to a broader category called ajlaf (mean and lowly) have been listed for reservation benefits in several states and by the Centre if they figure both in the state and Mandal Commission lists. Nevertheless, the benefits have mainly gone to the dominant Hindu backward castes and not to the Muslim OBCs who suffer from both backwardness and communal prejudices. It does not help that unlike the OBCs, the Muslim community has not been able to evolve a middle class that could have benefited from the new economic policies and possibly contributed to the process of greater democratisation and return to ‘citizen politics’ within the Muslim community, which remains stiflingly dominated by the upper castes category called ashraf (noble born), a fact not given much emphasis by Hasan. She also overlooks the presence of the artisans OBCs, sandwiched between the landholding peasant OBCs above them and the SCs below, who have similarly lost out to both.
Nevertheless, Hasan deserves appreciation for presenting a balanced set of arguments that contribute immensely to the ongoing debate about the affirmative measures in India by asking as to why differentiated approaches have been adopted while framing and implementing affirmative policies for the disadvantaged groups. Why can the ongoing politics of inclusion not move beyond dalit and OBC discourse? What about the Muslims who are doubly disadvantaged for being both a minority as also poor? Hasan presents her arguments in a cogent manner, comparing and contrasting the divergence in the state’s treatment of the two sets of marginal communities who have much in common except their religion. Without indulging in airy-fairy theorization, Hasan prefers a pragmatic approach to the whole issue, first building her case by repeated reference to the empirical data and reports findings that reveal how the largest religious minority in India has received a raw deal and how it does not even register in the nation’s conscience which remains obsessed with Mandal I and Mandal II.
The book makes clear that any meaningful discourse on group rights has to recognize the ascriptive identities of the minority communities and their entitlements in a substantive sense so as to increase their sense of being part and parcel of the political community in which they live, as also to establish a more egalitarian and just society. Toards this end, there needs to be an enhanced awareness among the masses and classes about the political under-representation and socio-economic disadvantages afflicting the minorities, especially the Muslims; the callous vote bank politics of the political class that tends to either ignore or use the minorities; and the possible public policies and the institutional mechanism needed to address the minority question which, of course, goes much beyond reservations. Overall, Zoya Hasan does a commendable job. A must read in these difficult times to be informed about the other side of the politics of inclusion.
Ashutosh Kumar
MUSLIM PORTRAITS: Everyday Lives in India edited by Mukulika Banerjee. Yoda Press, Delhi, 2008.
‘WITH stereotypes we leave biography and history behind, recognizing those different from us through visible signs, as if such human beings belonged to a different species altogether.’ So writes historian Shahid Amin about the Mussulman in India. I also remember his extreme irritation when friends and colleagues routinely approached him to help translate difficult passages or verses in Urdu. ‘Why do they assume that just because I am a Muslim, I know how to read and write Urdu? After all, like them, I too studied in Modern School and St. Stephen’s College.’ But nothing incensed him more than the commonplace poster on national integration with a Hindu, Muslim, Sikh and Christian, each typified with a particular headgear or religious mark. ‘Don’t they know that the fez cap with which the Muslim representative is adorned, went out of fashion with the Caliphate?’
For most of us, majority Hindus, the Muslim communities remain a world apart. For the purpose of most everyday discussion, ‘"The Muslim" is nameless, probably bearded or veiled, impoverished, fecund, pious and or/militant but rarely with a personal story or biography. It is an identity that is often reduced to a statistic, to make an argument in favour of or against the Muslim.’ No wonder, so many of us find it difficult to make sense of former President Kalam, a vegetarian, veena-playing, Gita-quoting, Tamil-speaking scientist. Equally, possibly why so many approve of him. For here is a Muslim who in our eyes is not quite a ‘proper’ Muslim.
If there ever was a time when a Muslim, though seen as different, was not seen as the ‘other’, whom we could recognize as just another neighbour, whom we liked or disliked for dozens of reasons other than just the fact that he/she happened to be a Muslim – those days now seem relegated to a mythical, fairy tale past, one constructed by ‘secularist’ intellectuals keen to play up our composite culture. Post partition/independence, and more recently the destruction of the Babri Masjid, the unending cycles of pogroms and riots, and now the emergence of what the media loves to characterize as ‘Islamic terrorism’, the Muslim communities and individuals in India have been successfully ghettoized and ‘othered’. As a result, both we (the non-Muslims) and they (the Muslims), whether or not any of us have ever been directly scarred by conflict, have changed, and become more suspicious of each other.
Whosoever may be responsible for this state of affairs, from Hindu communalists and self-seeking secularist interlocutors, Muslim community leaders, the movement towards creating a global ummah, the post 9/11 ‘war on terror’ – and you can take your pick – the painful fact is that we are all trapped by a growing global legitimacy for Islamophobia. ‘What had been hitherto implicit and unsaid in some minds, is now vocalized freely,’ and ‘the loyalty of Muslims has become suspect.’ It does not matter what data or statistics are trotted out, or what sociological explanations are proffered to explain group and individual behaviour, it is now increasingly acceptable in public spaces to treat our Muslim co-citizens as different from us. And any argument to the contrary is immediately dismissed as ‘pseudo-secular’.
Possibly this is why, as Shahid Amin had pointed out, and anthropologist Mukulika Banerjee valiantly attempts, it is critical for both recovering and healing ourselves to not forget ‘biography and history’, to fill out empty and statistical abstractions with real-life persons, their struggle to be, and develop a better understanding of how individuals living in such an environment cope. Whether or not, ‘the use of the fundamental identity of citizenship that is available to all Indians can transform the discourse of "developmental deficit" among India Muslims in a way that can make it more akin to "developmental initiatives",’ in not attempting to infuse agency to individual Muslim voices, we are likely to condemn ourselves as a people and society to a continuing history of mistrust, hatred and conflict.
Muslim Portraits is a slim collection of eleven profiles, not of well-known personalities, of which we have plenty, but of ‘individuals who have normally stood cheek-by-jowl with hundreds of others in a large canvas.’ The writers are all well-known researcher- academics who had encountered their subjects in the course of their work, and for whom the subjects at some stage stopped being ‘informants’ and became persons, oftentimes friends who, despite the inevitable distancing, continue to reside in memory. These are personal narratives with no claims made to representativeness. Each subject is unique, ‘they live in different parts of India, speak different languages, eat different foods, do various kinds of work, but are all Muslim.’ Together they represent the diversity that is India and tell us something not only about Indian diversity but equally how formally monotheistic religions flourish and acquire very different attributes in diverse cultural settings. At the very least they should help pin down the lie of what in shorthand is referred to as ‘the Muslim question in India.’
This brief review will make no attempt to introduce the diversity of characters – Islam, the barber living near Varanasi and Jannu Lal, his Hindu friend; Lawrence Cohen’s portrait of ‘M’, a Muslim gay who had worked in Dubai as a driver, came back to get married and settle down but continues to dream of another life; Brian Didier’s account of Koya, an alim in Lakshadweep and his innovative use of fatwas; Javeedbhai, the don in Mumbai who is seen as the protector of his community; Zamir, the body-builder and karate expert in Bijnor; or Khatij, the Kashmiri peasant woman caught up in a war-torn land. Each of these individual stories, even if not written with equal elegance, captures the complexity of everyday life, the varying choices made by individuals in settings constrained by an atmosphere marked by more rigid differences and narrowing opportunities. They also demonstrate that the manner in which individuals rationalize and exercise choice is dependant upon a variety of factors, of which religious identity is only one. But most of all that the different Muslim subjects, each located in different settings, think and behave very differently.
My personal favourite, however, remains the story of a friend whose story of a Hindu public name and a Muslim private name had always intrigued me till I read about the amazing and touching story of his grandfather and father, and how, after the grandfather’s brutal murder at the hands of Muslim zealots in pre-partition India, and after experiencing the savagery of his community men during partition, the father vowed to give his children Muslim names. Clearly, the lyrics of the one-time popular Hindi film song, ‘Na Hindu banega na Mussulman banega, insaan ki aulad hai insaan banega’, meant something to an earlier generation. If only we could say the same now.
This is not to argue that if only we understand and appreciate individuals in their concrete histories and biographies, we will stop being driven by prejudice. Nor that individual histories, even if read together, deny the validity of a different ‘collective’ biography. But, at the least, it should force us to pause before we rush to judgement. And that in these days of instant editorializing, and that too with a terrifying level of certitude, is no small gain. For this we need to be grateful to Mukulika and her intrepid publisher, Yoda Press. This book is a small gem that merits repeated dipping into.
Harsh Sethi
