Uniform Civil Code & Ashrafiya obsession with Triple Talaq

 

Ayaz Ahmad

ayaz-ahmadIn the wake of upcoming assembly polls, the question of Uniform Civil Code (UCC) is being debated with traditional appeal to religious identity of Muslims & Hindus in their respective constituencies. From the vantage point of Pasmanda, the question of UCC is raised to create the binary of Hindu versus Muslim in order to entrench both identities as a monolith whole. This entrenchment of communal identities is aimed at suppressing caste fault-lines in both communities. The suppression of caste fault-lines is necessary to hold on to the privileges accumulated under Brahmanical social order. Thus, the demand for UCC helps the Savarna to consolidate its dominance over the Bahujan under the garb of Hindu identity & opposition of UCC helps the Ashrafiya to consolidate its dominance over the Pasmanda under the garb of Muslim identity.

However, UCC is not the exclusive strategy of constructing the binary of Hindu versus Muslim. It is deployed in combination with various other cultural symbols which mark out the caste ridden diverse populace into two hostile groups. The most prominent among them are Aligarh Muslim University & Banaras Hindu University (Muslim modernity versus Hindu modernity), Muslim Madarssa Education & Hindu Sarasvati Education (Muslim culture versus Hindu culture), Muslim League & Hindu Mahasabha (Muslim Politics versus Hindu Politics), Muslim Personal Law versus Hindu Personal Law, Muslim Secularists & Hindu Secularists (Jinnah versus Gandhi), Muslim Fundamentalist & Hindu Fundamentalist (Iqbal versus Savarkar), Muslim Liberal & Hindu Liberal (Maulana Abul Kalam Azad versus Pandit Jawahar Lal Nehru) so on & so forth. All these oppositional symbols can be ontologically understood by replacing the expression 'Muslim' with 'Ashrafiya' & 'Hindu' with 'Savarna'. Similarly, the question of UCC can be understood in the dialectic of religious identity formation & invisibilization of caste identity & the need for their continuous reproduction through hostile binaries.

The function of creating false binaries is performed as much by secular, liberal & modern Ashrafiya-Savarna as by priestly Ashrafiya-Savarna. In fact, the former has the uncanny ability to provide maximum momentum to secular-communal bandwagon by invoking ingenious ways to scold their kith and kin on the other side of the pool. When Savarna demands UCC by objecting to Triple Talaq or Polygamy permitted by Muslim Personal Law, the Ashrafiya ridicules Hindu Personal Law by pointing that incidents of polygamy are higher among Hindus compared to Muslims or Hindus leave their women in the lurch without divorcing them due to stringent norms of divorce! The secular, liberal & modern Ashrafiya is better placed to achieve this effect due to his superior cultural capital than the priestly Ashrafiya.

It is no coincidence that in the history of the Indian subcontinent, the height of communal polarization was achieved by Mr. Jinnah & Gandhi who had an impeccable track record of being secular-liberal leaders of their respective caste groups. The Muslim League of Jinnah effectively killed the democratic aspirations of Abdul Qayyum Ansari in this process, while the Congress of Gandhi substantially undermined the democratic space sought by Dr. Ambedkar. In our times, this function is performed by leaders like Sayed Owaisi & Subramanian Swamy. There is an inherent underlying unity in the apparent hostility of the two. Within the Gramscian frame of war of positions, both take a united position against Dalit-Bahujan-Pasmanda position of material interests and seek to win it by hook or by crook. Sometimes it is amusing to watch Ashrafiya intellectuals bat on the UCC bowling of Savarna in a playful display of bonhomie!

However, the question of protection & preservation of patriarchal privileges of Ashrafiya in the garb of existing personal law is only partially answered by above analysis as this question goes to the very root of the caste system. As explained by Dr. Ambedkar in his paper titled "Castes In India: Their Mechanism, Genesis and Development"1 patriarchy constitutes the core of the caste order. Unlike the hostile religious identity which is only a symptom of caste structure rather than the cause of it, patriarchy is the central pillar of the caste system itself. Therefore, patriarchal privileges of Ashrafiya are not just protected under the garb of personal laws, rather the garb of personal law itself is created by the patriarchal foundations of Ashrafiya identity! Hence, patriarchy is the base on which Ashrafiya privileges are laid down & existing personal laws only partially support them. Naturally, Dr. Ambedkar underlines gender injustice in various forms as the chief mechanism of the origin of caste in India.

Both position of & opposition to UCC is an outcome of intuitive 'higher caste' consensus across religious categories rather than pious allegiance to constitutional principles or Islamic tenets as it is made out to be. Neither the constitution mandates creation of UCC nor does Islam oppose such a system as the very idea of UCC in practical terms is non-existent in both Constitutional & Islamic jurisprudence! The main reason for demand of UCC by Savarna & its opposition by Ashrafiya is consolidation of communal identities by invisibalizing caste identities. Both functions go on to support caste order. In any case, there need not be any real conflict between secular uniform civil code and religious separate laws as the former can not come to life without accommodating the latter. In fact, the existing secular uniform civil code in the form of Special Marriages Act does exactly the same although in a very biased & unscientific manner.

Similarly, it is very much possible to develop a civil code without affecting the core values of Islam and cultural autonomies of 'minorities within minorities' if this question is approached from the vantage point of gender justice & justice to sexual minorities. If civil code is to be utilized as the hegemonic tool of dominant groups belonging to any category, which is inherent in all exercises of law making, then such a possibility is impossible to imagine, hence futile to explore.

On the other hand, the Pasmanda identity has emerged in opposition to minority politics as the latter failed to fulfill the aspirations of the former2. It is similar to the emergence of Bahujan identity which was formed in opposition to majority politics for materially similar reasons. Pasmanda identity is relatively young & its arrival is actively resisted by the Ashrafiya proponents of minority politics, in the present context by manufacturing an opposition to UCC. Thus, the opposition to UCC through conservation of regressive laws & practices including Triple Talaq & polygamy along with hegemonic symbols as discussed earlier continuously obstruct the articulation of Pasmanda concerns. It is evident that the UCC debate has no substantive objects to achieve apart from its role as consolidator of communal identities. Further, the question of gender justice if any can be addressed within the framework of existing personal laws provided that sincere efforts for reforming personal laws are made & it is not utilized to sustain the Hindu versus Muslim binary to sub-serve the Brahmanical agenda of a hierarchical social order.

Keeping this background in mind, the Pasmanda position on UCC debate would evolve firstly, to open up maximum space for its expression, secondly to root Pasmanda position in ethical concerns of inter-sectionality. For this purpose I tentatively propose the following as the Pasmanda position on UCC:

 (1) Codification of all Personal Laws without reference to communal identities
(2) Incorporation of gender justice including justice to third gender as the guiding principle of all Personal Laws
(3) Recognition of inherent equality of genders on issues covered by Personal Laws
(4) Legitimization of All India Women Personal Law Board
(5) Legitimization of All India Pasmanda Personal Law Board
(6) Delegitimization of All India Muslim Personal Law Board
(7) Delegitimization of Madrassa's & Mosques as the representative of Pasmanda concerns on the question of Personal Laws
(8) Preparation of UCC draft after incorporating these concerns.

Ever since the Shah Bano fiasco, the Ashrafiya obsession with Muslim Personal Law has significantly strengthened the Brahmanical position against Dalit-Bahujan-Pasmanda discourse. The Pasmanda movement hopes to prevent a repeat of the same by adopting the principle of gender justice in the field of personal laws. The Ashrafiya leadership, both secular & priestly, is singularly incapable of undertaking the agenda of reforms in personal laws as it would mean loss of an important tool for the reproduction of Ashrafiya identity. Therefore, the Ashrafiya position that the call for reforms must come from within the Muslim community is nothing more than dilatory tactics adopted to please their Savarna kith & kin in order to safeguard their caste privileges. For Pasmanda, choking essential personal law reforms would mean delaying the arrival of their legitimate social, economic & political concerns suppressed for centuries.

~

Notes

1. Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1. Bombay: Education Department, Government of Maharashtra, 1979, pp. 3-22

2. Khalid Anis Ansari, "Muslims that 'minority politics' left behind" The Hindu, June 17, 2013 available at http://www.thehindu.com/opinion/lead/Muslims-that-minority-politics-left-behind/article12076617.ece last seen 16/01/2017

 ~~~

 

 Ayaz Ahmad is Head, Glocal Law School, Glocal University-Saharanpur-UP. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

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