Equality or Justice?

Would you choose justice or equality? Let’s see this through. Equality. Whenever this word comes up, I am immediately taken back to ‘Animal farm’ by George Orwell, one of my favourites. He so wonderfully stated that some animals are more equal than others. Equality as an idea is quite far fetched for a country like India that is laden with casteism, hierarchies and undertones in everyday life that don’t make equality a distant future, it sure hurts me to say that. Here, in this majestic country which we belong to, ‘we’ believe that the privileges that we enjoy as individuals because we were born in a particular section is our birth right, that these are quite inalienable much like our fundamental rights. Quite in contrast, we spot a lovely dichotomy. We fail to acknowledge the beauty of chance. How could it be our birth right when it was solely because you were lucky enough to be born in the family that you were, it entitles you to their property and share and all those materialistic things that one craves for. It doesn’t entitle you to superimpose your standing in the society.

A by-product of equality is reservation in India as of now. Now hundreds of people like me, who aren’t looking for a vote bank, would say that this concept ruins that of equality. Keeping in mind that yes, upliftment of the downtrodden is of utmost importance. Without it, we wouldn’t reach anywhere. But my proposition would be to enrich people and provide them with sincere educational facilities during primary and secondary stages. By reserving seats per se, we tend to send out the message that one is weak, that one needs such supplements to stand somewhere in the society, leave a mark on society, to achieve whatever one might want to. If the base level is clear then one would fight on the basis of merit, fight and prove that reservation doesn’t have to be. Reserving seats, moreover, serves as a discouraging factor for all the others who, after having met with reservation, now start to believe that hard-work doesn’t necessarily mean success. That ‘some are more equal than others’, that the way is paved up for a few. Feelings of inequality stem up in the society and somewhere justice lacks. Here’s when justice comes to play. Where ever there is inequality, injustice would be a given.

The human mind that is always in a state of chaos crops up to be in two frames of mind. I wouldn’t be human if I didn’t break in too. Hence, the contradictory statements follow. This would also be the leftist in me that pours. If equality in a society means having a classless society where socialism prevails, everyone gets their fair share and none go home disappointed or deprived or discriminated, it would be the most ideal form of society. Then you have justice as well as equality sitting on a bench, hand in hand, being the best of friends. The rich would understandably have issues, their argument being that it is their hard earned money, totally valid. But what about the greater good? What about getting rid of the evil of inequality that is so deeply rooted and so prevalent? What then would you do? Would you rather have 10,000 men equivalent to one, or would you have everyone at par? My answer is pretty clear in which I see justice and equality, both.

I’m sorry to have asked such a trick question, the ‘e’ with which justice ends is the same ‘e’ with which equality begins, there is no separating both.

The author, Ahana Singh Rathore, is pursuing BA at Sophia College, Mumbai.

THE DEMAND FOR “COMMON” CIVIL CODE

“The Uniform Civil Code maybe described as controversy’s favorite child.”

Article 44 of Directive Principles of State Policy says “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.” But it is a matter of regret that article 44 of the Constitution has remained a dead letter for the Indian judicial system. Article 44 is based on the notion that there is no viable relationship between religion and personal laws in a civilized society. In one hand, Article 25 of the Indian Constitution allows everyone the right to follow, profess and propagate his or her religion with utmost dignity, whereas Article 44 seeks to divest religion from social relations and personal law.

The discussion for having a proper Civil Code for all did take place during Constituent Assembly proceedings, where the then Law Minister of India, Mr. B.R. Ambedkar stood in favour of reforms in the society by having a proper Civil Code. But due to stiff resistance, this proposal was not allowed to be passed in the Assembly and hence was pushed to the category of “non actions” called the Directive principles of State policy. Therefore the meaning of Uniform Civil Code was articulated as a proposal to replace the personal laws based on the scriptures and customs of each major community in India with its own sets of laws governing every citizen.

When we talk about equality before the law to all in society, we cite the criminal laws of the country. But in civil matters such as marriage, adoption, succession, divorce and inheritance, the allowance of patriarchy is on a high. The dilution of gender justice done through ages has not awakened the minds of a common Indian. Therefore the idea of a “Common Civil Code” needs to be well conceptualized so that it can be understood by all. Religion cannot be used as a tool to justify acts of public immorality, public disorder or discrimination. The rightful interpretation of religious texts is essential to counter these draconian laws to the extent possible.

By setting aside the discriminatory aspects of existing personal laws and incorporating modern and progressive aspects, we can move towards a common civil code. The applicability of so many personal laws for different communities has created a deep-seated problem in the Indian judicial system. This fact has been acknowledged by the Honorable Supreme Court of India which has time and again stated that there is a “Total Confusion” when it comes to personal laws governing religious practices.

The Supreme Court of India has been very active on the issue of same Civil Code for all. It has given landmark judgments to support the cause of non biased civil laws in India whether it is in the famous cases of:

  • Shah Bano (1985), which talks about maintenance of Muslim women after divorce.
  • Sarla Mudgal vs. Union of India and Others (1995), which raised three pertinent questions for Courts; first, whether a Hindu husband married under Hindu law by embracing Islam, can solemnize a second marriage? Second, whether such a marriage, without having the first marriage dissolved, would be a valid marriage for the first wife who continues to be a Hindu? And last, whether the apostate husband would be guilty of the offence under section 494 of the Indian Penal Code?
  • Daniel Latifi vs. Union of India (2001), where the court stated that reasonable and fair provisions include provision for the future of the divorced wife with no confinement along the divorce period as stated in Muslim personal laws. This remains the final case law in this regard.
  • Shamim Ara vs. State of Uttar Pradesh (2002) ruling which supported the claim that arbitrary ‘triple talaq’ is invalid. 

These decisions support the view of Shri K. Kannan, a former judge of the Court of Punjab and Harayana that by borrowing from laws of various communities and making judicial pronouncements that assure gender equality, the nation can move towards a uniform set of civil laws in due course.

Assessing the present scenario, the government has asked the Law Commission of India headed by retired justice Balbir Singh Chauhan to formulate a report on the formulation of Common Civil Code. The Law Commission chief has said that people must be educated on this issue. People should know and understand this Civil law reforms from a humanitarian viewpoint to guarantee the equal rights of citizens, rather than from a non-moderate religious attitude. 

Till the time this matter is seen from a religious perspective, from a perspective of curtailing minority rights, then this issue will face the same resistance as other major reforms in India.

This is high time for introspection among citizens of India on whether they would like to continue to enforce principles of the 18th century that destroy the 21st century of India. Rigidity is inheritably imbibed in many of the personal laws of India. It is a fact that there remains greater rigidity in the personal laws of some communities whereas,in others, serious reforms have been introduced, that have contributed to the progress of those communities. But there is lack of comprehensive reforms even in those outdated laws.

Viewing this demand from a macro level perspective, the implementation of this matter will give a global outlook to India in terms of equal gender rights, equal minority rights and of course equal human rights. Moreover, it should not be seen as a concept presented by the Western World. Rather, it is the periphery adopted by the leftist governments in the east, where state and religion are seen differently and where state is above the question of religion.

There is hope that a call for a Common Civil Code will purge the nation of inequality by removing the evils of polygamy, child marriage, and arbitrary divorce, rigid grounds for a divorce, unjustified property rights and disparity in adoption laws. It is significant to note that the personal laws of the Hindus, such as those relating to marriage, succession and other issues, have all a sacramental origin in the same manner as in case of Muslims or Christians. The Hindus, along with Sikhs, Buddhists and Jains have forsaken the sentiments in the cause of national unity and integration; some other communities haven’t; although the constitution enjoins the establishment of a “Common Civil Code” for the whole of India.

Thus in order to generate wide consensus, any discussion on the issue of Uniform Civil Code in India must be cognizant of the undue stress given on the word “Uniform”. Uniformity in civil laws is often linked with majoritarianism  causing sections of society to resist this revolutionary reform. The very concept of complete uniformity in society is a farce and it is therefore essential that the codification of civil laws should encompass every person under its purview. It has rightly been observed by the Hon’ble Supreme Court that

“Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”

The author, Aditya Poddar, is a student of Commerce at St. Xavier’s College, Kolkata.

License to Kill

A nation known for its democracy in its truest sense, a government which indeed is ‘of the people, by the people, for the people’ and a country which gives due importance to the liberties of its citizens, it is very difficult to imagine a situation where a mockery of basic human rights is made. Initially introduced in the states of Manipur, Meghalaya, Mizoram, Nagaland, Arunachal Pradesh, Assam, and Tripura, The Armed Forces (Special Powers) Act popularly known as AFSPA recently triggered off a public debate due to the violence in Kashmir. It is a draconian law which gives unbridled powers to the armed forces which includes the right to shoot to kill based on mere suspicion that it is necessary to do so in order to “maintain the public order” in a “disturbed area”.

The origin of this law was in 1958 when it was adopted by the Indian Parliament to provide legal support for the army operations against the Naga rebels. The main objective of this Act was to establish a localised form of emergency rule which would come to the aid of the people during distressed times and assist the State Governments which were incapable of maintaining any internal strife. During the 1950s and 1960s, the ASFPA-enabled counterinsurgency operations against the Nagas forced relocation of civilians in camps under close surveillance. Even to this day, the ‘search operations, the starvation periods, the regime of curfew and the loss of identity’ sends a shiver down the spine of those who remember it.

If one goes through the provisions of this act, the realisation of how the statute can wreak havoc on innocent citizens will dawn upon him and the fact that people are actually at the mercy of the armed forces and the government. One of the biggest flaws of this law is that the State can be declared as a “disturbed region” for an indefinite period of time and the armed officer need only be of the opinion that an action needs to be taken in order to maintain peace. The AFSPA also provides immunity to the forces in the sense that no legal proceedings can be carried out against them without the permission of the Central Government. In a country where reports about criminal activities precedes every other news, perpetrators of heinous crimes use this provision as a shield and move about freely in the society under the garb of their uniform. The atrocity performed by the security forces is an example of how humanity is getting lost in the world that we have built and how tainted has our soul actually become.

Three people shot by the Indian army at Machil sector in Kupwara district of Jammu and Kashmir; 110 lives of civilians lost in the whole summer unrest of the year 2010; barbarous acts committed by the army personnel to get rewards and remunerations under ‘anti-militancy operations’ and this is just the beginning of how low the officers have stooped in order to violate their rights. These incidents are not even close to the other merciless deeds that the forces have been involved in. In Kashmir, the officers used their power to carry out search operations while the men were held for identification outside their houses, near mosques or in a common ground. Even the basic safety measure of including a women officer was not followed. Similarly, the misuse of AFSPA in Manipur had prompted Ms. Irom Sharmila to go on a fast against the draconian provisions of the AFSPA.

In a country where the democratic voice of “We the People” echoes in every state and in every city, it seems to be getting suppressed under this tyrannous rule. In a land where women are worshipped as Goddesses, there can be no greater sin than exploiting their morale and dignity. In a nation, where every man sleeps soundly having the security that the army is there for protection, it is an utmost shameful act to break their trust and hope. The AFSPA was established as an indispensable tool to counter insurgency in “disturbed areas”. The entire purpose of this act was to give power in the ‘right hands of the right people’. Who would have thought that it would soon turn into a nightmare in disguise and render people absolutely helpless.

What we need is a change, an impetus to completely transform the society to make it a better place to live in. India should not allow the future to be dominated by violent paradigm such as the continuing use of AFSPA. It is time we give space for ‘Democracy’ and its cherished values to re-emerge stronger than ever before so that we can surpass all the evils that have crept into our motherland and rise above such trivialities to truly become a global leader. Quoting Swami Vivekananda, “Arise, Awake and Stop not until the goal has been reached” is the need of the hour. The duty of ever Indian citizen is to repeal acts like the AFSPA and to make sure that nothing, absolutely nothing comes in our way of climbing the ladders of success.

The author, Jaishree Dudani, is a student of Commerce at St. Xavier’s College, Kolkata. 

Gender (In)Equality In India

With the recent upsurge surrounding the ‘Teen Talaq’ or ‘Triple Talaq’. One is forced to review, how poorly situated women are in Indian society. In a patriarchal and misogynist society such as India’s, women are treated as second class citizens. They are thought to be thoroughly incompetent and thereby male domination is obviously justified. No amount of laws and court rulings can set this right. Despite the presence of the Hindu succession Act. Hindu women are still willed out by their parents. They have to resort to troublesome court cases to get what is rightfully theirs.

Inspite of this, Hindu and Christians have some sort of a Supreme Court-approved family law. Why is it that Muslims do not have one? The long-drawn controversy over the uniform Civil Code and the staunch opposition posed by Muslim bodies such as the All-India Muslim Law Board are proof that Muslim misogynists are unwilling to let go of the wrongfully attained power that makes them more powerful in the household. Many Muslim women activists claim and correctly so, that this unilateral and arbitrary form of divorce is actually un-Quranic. The Quran does not place women in a subservient position. It is the self-appointed Muslim ‘Holy-Men’ who have interpreted the Quran in a way that favors them.

Some of the key findings of the Bharatiya Muslim Mahila Andolan 2013 survey of 4,710 muslim women in 10 states showed that 92.1% of them wanted a total ban on oral divorce. 91.7% of the women did not want their husbands to marry another woman during the first marriage. 93% wanted an arbitration process to be mandatory before divorce. 95.6% women wanted their ex-husband to pay for the children’s maintenance even if she holds their custody lastly. 83.3% women believed codification of Muslim laws would help Muslim women to get justice.

The Muslim personal law needs to be reformed. Just like the Hindu Marriage Act, the Hindu Succession Act and the Christian Marriage and Divorce Acts, Muslim women feel they too are entitled to a codified Muslim Family Law.

Gender justice is a fundamental principle of every religion. The self appointed custodians of faith enable the tyranny over women through practices like triple talaq, halal and polygamy. Personal Law has nothing to do with religion. Customary practices have been codified to be used as tools of patriarchy. Though codified laws will help, it cannot thoroughly succeed unless the mindset of men is changed. Even women stay away from using the existing laws to their benefit. Patriarchy and misogyny are so deeply rooted in the minds of Indians, that change and reforms receive a lukewarm welcome.

The BJP- government is facing tough opposition from the All India Muslim Personal Law Board, which has the support of many Muslim organizations regarding the uniform Civil Code. However, what is most needed is a change from within. Rather than having the government forcefully make and enforce laws, people should be made to understand the importance of such laws. In the era of progress and democracy, if India lags behind on something as fundamental and crucial as gender equality and women’s empowerment, then it is truly a shame and a failure.

The writer, Srishti Negal, is a student of Honors in Political Science at St. Xavier’s College, Kolkata.