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The unholy nexus between religion and law

Bar & Bench

By Saumya Ramakrishnan

Women in India have more often than not been on the wrong side of religion. This presumption was at display recently when the trustees of the Haji Ali Dargah in Mumbai barred women from entering the sanctum sanctorum housing the tomb of the 15th century Sufi saint, though it was open to women to visit the other parts of the dargah. Defending the decision to prohibit women from entering the sanctum sanctorum, Rizwan Merchant, a trustee of the Haji Ali Dargah Trust and noted criminal lawyer said, “If Islamic scholars have issued a fatwa, in accordance with the Islamic law of Sharia, and have demanded that women not be allowed in dargahs, we have only made a correction.” It was not surprising then that the ban faced a huge opposition from the liberal section of the society, who saw it as a regressive step, something that is likely feed Islamophobia. The Bharatiya Muslim Mahila Andolan decided to take up the matter with Maharashtra Minorities Minister Arif Naseem Khan. Stopping short of explicitly declaring that they cannot expect any help from the government, Khan said, “It is purely a part of rituals. The muftis and maulanas will take a decision on whether to allow women devotees inside the main area called as ‘Mazar-e-Sharif’.”

Another incident this year that put religious and fundamental rights in jeopardy was when a Parsi woman married to a non-Parsi was not allowed to retain her own religion (Zoroastrianism), ruling that she has adopted the religion of her husband (Hinduism) by marrying him, albeit under the Special Marriage Act. The incident that prompted the woman concerned to file a petition was that a Parsi lady who had married a non-Parsi was prohibited from entering the Parsi religious places to attend her parents’ last rites after their death.

These events can be looked at from a multitude of angles: Firstly, why is it that it is always the women who are on the wrong side of religion; secondly, what is the true essence of a secularity – does it mean non-interference in religious affairs or does it mean ensuring religious freedom to all and thirdly, is a uniform civil code even a remote possibility in India?

The first question regarding women and bias towards them as far as traditions are concerned has more to do with the society and the biases rather than law. However, it also does involve interpretation of religious texts by the courts, and how they balance the same with their fundamental rights and the way women-centric issues have been dealt with by the judiciary. While the Constitution provides that no person shall be discriminated from another solely on the ground of gender or religion, the reality has been quite different. Since the personal laws of different communities in India differ from each other substantially, it so happens that the status of women depends on the personal laws which govern them. More often than not, the judiciary has refused to interfere with the personal laws of any religion as long as the basic rights are not affected.

An effort was made way back in 1985 by the Supreme Court to ensure that a woman gets her rights in marriage, irrespective of her religion and personal laws in Mohd Ahmed Khan vs. Shah Bano Begum. In this case, the Court ruled that even a Muslim woman has the right to claim maintenance under section 125 of the Code of Criminal Procedure, even if maintenance is not guaranteed to her by her personal laws. While the liberals lauded the judgment as it guaranteed women of security and dignity in marriage irrespective of religion, the more orthodox sections of the society considered the decision as a threat to Islam. Consequently, the then government overruled the judgment of the Supreme Court in effect by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986. While the Act claimed to protect the rights of women, it defeated the purpose as it gave the right of maintenance to a woman from her husband only during the iddat period, while passing off the burden of maintaining her after the iddat period to her relatives or the Wakf Board.

The rights of women in marriage was once again recognized by the judiciary in the case Sarla Mudgal vs. Union of India when the question before the court was whether, after contracting a Hindu marriage, the husband could convert to Islam and marry a second wife, without divorcing the first. The Bench, headed by Justice Kuldip Singh, held that an errant Hindu husband could not do so to circumvent the provisions of Hindu law and would be punishable for bigamy under the Indian Penal Code.

Women have been in the wrong side not just of religion, but also of the prejudices of the society against them in sexual assaults and related offences. More often than not, the woman’s character, her sexual history and personal life are brought to the forefront in the course of the trial, the only object being to malign the victim. The most exacting demonstration of the bias of the judiciary towards women came in the Mathura rape case in 1972. In 1972, a sixteen year old from Chandrapur district in Maharashtra was raped in broad daylight by two policemen within the confines of the police station.

The Sessions Judge held that since she had earlier eloped with her boyfriend, she must have been habituated to sex, and, hence could not be raped. The High Court reversed the judgment, sentencing the policemen to six years in prison. In 1979, the Supreme Court again reversed the order. The judges felt that since Mathura had not raised any alarm, and since there were no visible injury marks on her body, she must have given her consent. The decision led to uproar amongst women rights activists which led to some important amendments in the Evidence Act, to the effect that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent and to the Indian Penal Code, which included a provision for presumption against the policemen in cases of custodial rape. Even though the laws of the country have been amended to make it more sensitive to cater to women, the bias that exists in the society against women often comes in the way of justice for women.

More recently, a Judge of the Karnataka High Court, while hearing a divorce petition filed on the ground of cruelty, said that the woman should just “adjust” to the situation for the sake of her marriage and future of her children. During the course of the hearing, he said, “Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business; he will take care of you. Why are you still talking about his beatings?” It is indeed alarming when the guarantor of the fundamental rights and the one who is supposed to act in the most neutral and unbiased manner breeds these kind of biases.

Thus, it can be seen that despite the efforts taken by the judiciary to ensure that the rights of the women are not trampled upon in the name of religion, there have also been instances where women have not only been victim of offences, but have been further victimized at the trial. It’s not just the judiciary but also the police force that is seen to have a bias against women while dealing with rape cases. In an investigation conducted by Tehelka, it was revealed that the cops in the Delhi-NCR region are saddled with a primitive mindset, considering female victims of sexual assault as provokers and not victims.

The Legislature, on the other hand, has shied away from codifying and amending some personal laws even if they are not compatible with the times owing to the political and religious considerations.

This leads to our second question – what does secularism mean in India? Does the freedom to practice, profess and propagate the religion of your choice envisage the absolute non-interference of the state in matters concerning religion like the Minister refused to interfere or does it involve special incentives from the state as well?

Constitutionally, India is a secular state, however the Indian concept of secularism is quite different from the American concept of secularism which implies a complete disconnect of the church from the state. In India, however, the disconnect between state and religion is only superficial and there are many instances when the two have to confront each other. There are no clearly legally defined parameters as to what extent the state can interfere in religious matters. However, Article 25 of the Constitution provides that all citizens are free to practice, profess and propagate any religion of their choice.

Different religious communities are governed by different laws in India. Moreover, the government has introduced some schemes for the benefit of some minority communities, for instance the airfare subsidy for Haj pilgrims, which are not always appreciated by the judiciary. In May 2012, the Supreme Court asked the government to ease out the subsidy for Haj pilgrims by 2022. Most of the policies reek of minority-appeasing tactics for electoral gain. This has led the critics of the Indian form of secularism to conclude that in India, secularism has only led to more divisive relations between religious communities and increase in inter-religious disputes.

The judiciary, on the other hand, has shown the tendency to balance religious freedom with fundamental rights, more often than not, without favouring any religion in particular. One of the biggest reinforcements of the secular ideology from the judiciary came in 1994 when a five-judge Bench of the Supreme Court declined to answer the Presidential Reference on whether there was any temple (or other Hindu religious structure) at the site where the masjid was demolished at Ayodhya.

The Judge even lamented that the purpose of the reference is opposed to secularism and hence, unconstitutional and that the dignity and honour of the Supreme Court cannot be compromised because of it. However, the Supreme Court has not been able to avoid matters concerning religion, often being called upon to answer complicated questions of law and fact. In 2010, the Allahabad High Court cast doubts on the true secular character of Indian society by giving its stamp of judicial approval to the Hindu belief that Lord Ram was indeed born there but held that the land must be divided between the three petitioners – Sunni Wakf Board, Nirmohi Akhara and the party representing Ram Lalla. However, this attempt by the apex court to balance secularism with freedom of religion only further complicated the problem with the Hindu groups demanding that the entire land should go to them.

Another case where religious laws were upheld over general laws as far as women are concerned was when the Delhi High Court this year held that a Muslim girl can marry as per her choice at the age of 15 years if she has attained puberty. This ruling received flak from human rights activists, as they saw it as an attack on the rights of a girl child and the universally accepted minimum age for marriage as 18 years. It would not be wrong to conclude that India has its own concept of secularism wherein there is freedom of religion but the state is also not totally detached from religious affairs. However, women always seem to be on the back seat when religion is at the forefront.

In the light of this, is it possible to fulfill the constitutional goal of a uniform civil code? Article 44 of the Constitution provides that the state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. One of the earliest and strongest recognition of the need for a uniform civil code came through the words of Justice Chandrachud, who observed, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.”

It has to be noted here that India is far away from attaining the goal of establishing a uniform civil code; in fact, for every step taken forward, ten steps are taken back. For instance, the Hindu Marriage Act, 1955 applies to Hindus, Buddhists, Jains and Sikhs. For long, there has been animosity amongst the Sikhs over merging their identity with that of Hindus. Hence, recently the Anand Marriage Act for Sikhs (which so far did not have any provision for registration) was amended to enable Sikh couples to register their marriage under this Act.

A uniform civil code might not be the solution for the dilemma that law faces each time religion clashes with it. However, an effort must be made to reduce the differences amongst different religions, at least as far as the rights and duties of the citizens are concerned. The rituals specific to each community may be left intact. Religion should not come in the way of fundamental ways and efforts must be taken to ensure this.

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