The Hindu : An alibi that isn't

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Friday, May 10, 2002

Opinion

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An alibi that isn't

By Tahir Mahmood

Votaries of communal politics have been using the false story of a Shah Bano-related `constitutional amendment' to cudgel the minorities.

A FIERCE debate on the Gujarat mayhem is in progress on TV. A BJP politician angrily tells the Congress participant: "Your party amended the Constitution to appease the Muslims when they rejected the Shah Bano case decision to deny payment of a petty amount of maintenance to a poor widow." The Congressman does not point out any untruth in this accusation, every word of which is factually wrong. Instead, he tries to meet it with a flimsy argument. No one on the debating panel or among the audience rises to set the record straight either.

Right from 1985-86, votaries of communal politics have been using the false story of a Shah Bano-related `constitutional amendment' to cudgel the minorities and provoke the majority community against them in search of petty political gains. Generously sparing the Constitution, some of them have instead been talking of the `amendment' of one or other public law of the country — actually in force or even imaginary — the Indian Penal Code, the non-existent "civil code" or whatever other law their wisdom or fancy could bring to mind. The bogey has often been used as a defence for the vandalism displayed in Ayodhya in December 1992 resulting in the criminal destruction of a religio-historic monument. And now it is being demanded that since 16 years ago the Muslims had asked for and were given by the then `pro-minority' Government a special favour by an `amendment' of the Constitution or a public law, the present pro-majority Government must at least overlook if not abet their merciless annihilation in Gujarat and elsewhere. The absurdity of this argument is now indeed crossing all limits.

The fact is that neither the Constitution nor any other law, major or minor, was ever amended to "appease" the Muslims as a result of their response to the Shah Bano case. The reality of the Shah Bano judgment of 1985 and the subsequent enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, has to be seen in the proper perspective. Maintenance of divorced women is a civil law matter governed in India for religious marriages among all the communities by their respective personal laws, and for the cases of civil marriages by the civil marriage law of 1954. The Criminal Procedure Code of 1973 (CrPC) provided a temporary relief in this regard under which the former husband of a divorced woman could be ordered by a Magistrate to provide her a small sum as maintenance on a transitory basis till the matter was duly decided by a civil court under the regular law applicable to the parties. For Hindus, Buddhists, Jains and Sikhs, these were the Hindu Adoption and Maintenance Act, 1956, and the maintenance provisions of Sections 24-25 of the Hindu Marriage Act, 1955. Any order passed under the CrPC for a divorced woman belonging to any of these communities was to last only till a civil court gave a final decision under this statutory law. There was no parallel statutory law of maintenance for the Muslims whose personal law on the whole has remained uncodified in this country — of course to their own detriment and for no rhyme or reason. Wrongly presuming that the uncodified Muslim law had no relief at all to offer to divorced women, temporary maintenance orders passed for Muslim women under the CrPC of 1973 were being treated as permanent and final in all respects. This was obviously legally incorrect. It was also prejudicial to the interests of Muslim women, as Muslim law had in fact a lot more to offer them than what they could get under the CrPC. On popular demand, then, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act. Unlike the Hindu maintenance law of 1955-56, which is for the civil courts to enforce through their notoriously time-consuming processes, jurisdiction to apply the newly enacted Muslim maintenance law was, however, given to Magistrates to be exercised as per the quick procedures provided by the CrPC. This was indeed a plus point. Most certainly the new Act neither overruled the Shah Bano decision nor amended the Constitution, the CrPC or any other law for that matter. Nor was there anything unconstitutional in this exercise.

As regards the rationale of the Shah Bano case, it was indeed unassailable. What had annoyed the Muslims was the misuse of its inflammable asides by the anti-Muslim elements who were hell-bent on projecting the new ruling as the "last nail in the coffin of Islamic law in India". The common Muslims were driven to misbelieve that by virtue of this decision their personal law was on the verge of extinction. Labouring under this delusion, they over-reacted. The events of 1985-86 indeed made an unhappy chapter of the recent legal history of India. It could have been well avoided if ill-informed religious zealots among the Muslims had not jumped into the fray and their ill-intentioned opponents had not communally exploited the situation for nefarious purposes.

The newly enacted Muslim Women Act attempted — albeit not wholly successfully — to codify the Muslim law on divorced women's remedies. From the very beginning the courts applied it very generously. Case after case was decided under its provisions to grant quick relief to divorced women in the form of exorbitant one-time payments (while under the CrPC the ceiling of Rs. 500 a month as the maximum amount payable as maintenance to all the claimants together — wife, divorced wife, children and parents — remained in force for another 15 years and was removed only in 2001). The anti-minority communalists, however, kept shouting from the rooftops to make people believe that the new Muslim Women Act was an "anti-women, unconstitutional and anti-national" measure.

The very sensible view point expressed by knowledgeable observers that the Muslim Women Act, 1986, did not overrule the Shah Bano decision and that it was not at all unconstitutional was upheld by the Supreme Court in the Danial Latifi v Union of India case decided on September 28, 2001. It was emphatically held in that case that the new Act, far from upturning the Shah Bano ruling, had in fact given effect to the same. Also the court found nothing anti-women, anti-national or unconstitutional in it. But, who cares? Whose writ then runs in the country? Do we, Indians, still believe in the rule of law? Are the communalists prepared to ensure lasting peace in the country in return for an outright repeal of the Muslim Women Act, 1986? Will they guarantee that innocent men, women and children will no more be butchered and burnt alive, that places of worship will not be vandalised, that human rights will not be violated any more, that all citizens' fundamental rights and civil liberties will be equally respected, that religious tolerance and communal harmony will return to the beleaguered nation now in turmoil? If they can come out with these guarantees in a manner believable by and acceptable to the international community one can reasonably expect that just a statute, even though constitutionally valid and helpful to women, may not be regarded by the Muslims as indispensable. But, will any such guarantee be forthcoming from any quarter?

(The writer is Professor of Law, University of Delhi, and former Chairman, National Minorities Commission.)

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