Uniform Civil Code

  -By Justice Markandey Katju

The issue of a uniform civil code has recently been raised. I am fully in support of a uniform civil code.

Article 44 of the Indian Constitution states : " The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India ". No doubt Article 44 is in the Directive Principles, and not the Fundamental Rights of our Constitution, but Article 37 states :

"The provisions contained in this Part shall not be enforceable in any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws " The Constitution was made in 1950, and 64 years have passed since it was promulgated, but Article 44 has till now been totally ignored, obviously for vote bank politics.

I have been raising my voice consistently whenever there was any atrocity on, or oppression of, Muslims, but on the issue of a uniform civil code I have firm views. In fact one of the reasons for Muslims in India remaining backward is that there was no modernization of their personal law.

In all modern countries there is usually one common law for everybody. In fact in India there is one common criminal law (I.P.C. and Cr. P.C.) for everybody, and the land laws (e.g. the U.P. Zamindari Abolition Act, 1951) for everyone. Nobody objected to that, though many of these laws are against the Muslim law. For instance, Muslim law provides for stoning to death for women committing adultery, but that would be illegal under the I.P.C.

The injustice in Muslim Law can be seen in the fact that a Muslim husband can divorce his wife by simply saying 'talaq, talaq, tqlaq', without ascribing any reason, whereas a Muslim wife cannot do so. She has to file a petition in court, which usually takes years to decide, and she must make out a ground (e.g.cruelty, adultery, etc).In all modern countries there is usually one common law for everybody. In fact in India there is one common criminal law (I.P.C. and Cr. P.C.) for everybody, and the land laws (e.g. the U.P. Zamindari Abolition Act, 1951) for everyone. Nobody objected to that, though many of these laws are against the Muslim law. For instance, Muslim law provides for stoning to death for women committing adultery, but that would be illegal under the I.P.C.

Thus there is discrimination against the wife in two ways :

 (1) A Muslim husband can get a divorce immediately without going to court by immediately pronouncing a triple talaq or even sending a letter mentioning the triple talaq, whereas the wife who seeks divorce has to go to court and file a petition which usually takes years to decide

(2) The Muslim husband need not give any ground for divorce, he can divorce his wife whimsically or merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it. This is not only very unjust to the wife, it is also violation of Articles 14, 15 and 21 of the Constitution.

Article 15(3) of the Constitution states that there can be no law against women, but there can be a law in their favour. The Muslim law of divorce is directly contrary to Article 15(3).

I know of a case where a Muslim girl was married to a Muslim young man who had come from England to marry her. It was an arranged marriage. After the wedding in India the young man went back to England alone, saying that he will arrange for his wife to come to England, but instead of doing so he sent a letter of talaq within a month. The girl almost committed suicide.

When the Supreme Court gave a progressive judgment in Shahbano's case many Muslims raised a hue and cry against it, saying it was against the shariat That judgment said that a Muslim husband has to give maintenance to his wife if he divorces her. This was a humanitarian judgment, because who will support a divorced woman (who may have children) except her husband ? All over the world a husband has to give maintenance to his wife if he divorces her. Why then should it be different for Muslims ? Muslims should have supported this judgment, but instead most of them raised big a hue and cry saying it is against the shariat and Rajiv Gandhi, afraid to lose his Muslim vote bank, legislatively repealed the ruling.

I may give another illustration of the backwardness of some of the Muslim laws. When I was a Judge in the Supreme Court a case came before my bench from Orissa. In some village in Orissa there was a young Muslim couple with 3 children. One night under the influence of liquor the husband had a quarrel with his wife and said to her 'talaq,talaq, talaq'. Nobody else was present at that time, and nobody came to know of it. However, about a month thereafter the wife was indiscrete, and told a friend of hers about this, and this friend told someone else, and so on, until the Maulana of the local mosque came to know of it. He then declared that the couple were no longer husband and wife, and so could not be allowed to live together. At this a mob of local Muslims reached the couple's house and told the wife to get out of her husband's house as she was no longer his wife. She protested that she had 3 small children, but the mob would not relent. A petition was filed before the Orissa High Court, which was dismissed, and against that order an appeal came before my bench in the Supreme Court.

I observed in court that everyone in this country has to behave in a civilized manner, whether Hindu or Muslim. If the couple wants to live together, how is it anyone's business ? I then directed the police to give protection to the couple.

The Muslim law is that if a husband divorces his wife he cannot straightaway thereafter remarry her. After the divorce the woman must marry some other man, and the marriage must be consummated, and only if thereafter the second husband divorces her can the first husband remarry her. Is this rational?

A Muslim man can marry 4 wives, but a woman can, at a time, have only one husband. Now monogamy represents equality between man and woman, and this is the age of equality. So why should polygamy be permitted to Muslim males ? It may be mentioned that upto 1955 a Hindu male could have unlimited number of wives, whereas a woman could have only one husband. This law was altered by the Hindu Marriage Act, 1955, which provides for monogamy.

It can be seen that much of the Muslim personal law is totally outdated and inhuman, but it is not allowed to be changed due to vote bank politics.

I submit that those who have not allowed changes in the Muslim personal law have done a great disservice to Muslims. Retaining the outdated personal law has contributed to keeping Muslims backward.

Law has to change with changes in society. To insist that laws made 1500 years ago must continue in the 21st century is totally stupid and unrealistic.

Before ending I wish to say that I know that some Muslims may oppose my views, but that is wholly irrelevant fore me. I have always supported Muslims whenever I thought that injustice was being done to them, and my track record can be seen in this connection. In my opinion great injustice has been done to Muslims by not modernizing their personal law.

Kashmir: Article 370

A Kashmiri political leader recently gave a veiled threat that if Article 370 of the Constitution is repealed Kashmir will secede from India. Another Kashmiri political leader said that amnesty should be granted to stone pelters in Kashmir. All this has been shown recently on T.V. screens.

My own view is that whether Article 370 is deleted or not, whether stone pelters are granted amnesty or not, Kashmir ( or any other state in India) must never be allowed to secede from India.
In this connection, it may be pointed out that Article 1(1) of the Indian Constitution states that India is a 'Union of States'. Thus, India is not a confederation but a union of states. Hence no state has a right to secede from it, and the union is indissoluble.

If Kashmir has the right to secede, then Nagaland, Mizoram, Tamilnadu, etc may also claim the same right. What then will happen to India ? It will be broken into pieces. This must never be allowed.
When the southern states of U.S.A. claimed the right to secede, and in 1861 formed their own government (the Confederate States of America) President Abraham Lincoln declared that they will not be allowed to secede, and he went to war on this issue. Similarly, we must never allow any state in India to secede, and must maintain our unity at any cost.

As regards the Kashmir problem, I have said several times that the only solution to the Kashmir problem is reunification of India, Pakistan and Bangladesh under a strong, secular, modern minded government which does not tolerate religious extremism of any kind.and works hard to abolish poverty, unemployment, lack of healthcare, good education etc for the masses and raises their standard of living

Real Independence

These days we are seeing on several T.V. channels the plight of people in many cities in U. P., the largest state in India, going without electricity often for 10-12 hours every day in this hot season ? Is it not tragic that 67 years after Independence we have not even been able to provide basic necessities like water and electricity to people living in vast parts of our country ? 

Is it not tragic that 67 years after Independence we have not been able to provide basic healthcare and good education to the masses in India?. Is it not tragic that unemployment in our country has assumed massive proportions (for each class 4, or peon's, appointment there are usually thousands of applicants, some of them having M.A. M.Sc. or M.B.A. degrees) ? Is this the Independence for which our forefathers fought ?

To my mind real independence for our country means freedom from poverty, hunger, unemployment, etc for the masses and providing them healthcare, good education and decent housing, thus raising their standard of living and giving them a decent life

A Failed State

Mahwash Badar, a Pakistani woman, in an article published on 12.5.2014, writes : " Jinnah made a mistake and I am ashamed of being a Pakistani. I am ashamed that I belong to a country that kills human rights lawyers and sitting Governors, and issues death threats to University Professors. I am ashamed that we cannot protect our women and children, and we cannot protect our men from the evil that is extremism and fundamentalism.

Last year a polio worker was killed in Peshawar, and another shot dead in Khyber agency. Several were kidnapped in Bara. In January this year gunmen killed 5 health workers taking part in a polio vaccination drive in Karachi. The highest refusal rates for polio vaccination were recorded in Karachi, because the people there have 'little faith in public healthcare'. In North Waziristan, the Tehrik-e-Taliban, Pakistan ( TTP) has forbidden vaccination since several years.

Everything that is reported about Pakistan is about death, destruction, squabbling politicians, ailing children, extremists blowing up things, and a struggling economy.

I raise my eyes to our neighbouring country, India. What would have happened if we were united? Maybe we would be polio free too. We share with our Indian brothers not only our DNA. Our food, language, clothes, lifestyles, etc are more like them than the Arabs we so badly want to mimic and ape. 
Pakistan is a fledgling and failed state ".

As regards my own views about Pakistan, see my article "The truth about Pakistan", which is available online. I have mentioned there that Pakistan is a fake, artificial country mischievously created by the British to keep Hindus and Muslims fighting with each other so that India (in which I include Pakistan) may not emerge as a modern, powerful industrial state (like China), which alone can abolish poverty, unemployment, lack of healthcare and good education, and other social and economic evils widespread in our sub continent today.

Apart from the fact that the two nation theory (that Hindus and Muslims are two separate nations) was bogus and mischievously created by the British and their agents ( Jinnah, etc), another important problem arises when an Islamic state is created in our subcontinent : Which Islam is the true Islam, Sunni or Shia, Bareilvi or Deobandi, etc, etc.

I submit that in view of the tremendous diversity in our sub continent only a secular state is feasible here. Secularism does not mean that one cannot practise his religion. Secularism means that religion is a private affair, unconnected with the state which will have no religion.

'The inevitable consequence of declaring Pakistan as an Islamic State'

Is Pakistan rapidly degenerating into a Jurassic Park? Consider the following events :

On 7.5.2014 an eminent lawyer and human rights activist, Rashid Rehman Khan, was shot dead by some assailants while he was sitting in his lawyer's office. He was evidently killed because he was representing a University teacher, Junaid Hafeez, in a blasphemy case. During the trial proceedings he was threatened in open court by some lawyers that unless he withdraws from the case he will be killed.

In Pakistan lawyers and witnesses for the defence in blasphemy cases are almost invariably threatened that if they do not withdraw they will be assassinated. Many judges are scared to hear such cases or to acquit the accused even if there is no credible evidence against him.

Rashid Rehman Khan was a very active human rights worker in Pakistan, and was a coordinator of the Human Rights Commission of Pakistan.. Whenever a person died in custody he would take up his case. If a woman's face was burnt with acid, he would rush to get her medical help. He fought against 'honour killing' of young girls. He trekked the most backward area of Dera Ghazi Khan, a tribal area, and documented the misery of people living there. He went to that part of Rahim Yar Khan where low caste Hindus live without any rights, and reported their plight.. He was the first to take up Mukhtaran Mai's case. He fought Sherry Rehman's persecutors upto the High Court level. He had special interest in the welfare of peasants, and demanded land reforms and tenants' rights ( in much of Pakistan landlordism still prevails).

Despite all this, consider what followed his murder :

1. Journalists in his home town Multan did not dare to write about his murder.

2. Judges in Lahore High Court are avoiding hearing Aisa Bibi's appeal

3. Multan police is not seriously investigating the murder.

4. There have been no serious protests against this dastardly crime, and most Pakistanis remain mum, obviously out of fear.

 Also, Consider the following:

On 12.05.2014 Dr. Faisal Manzoor, a prominent Shia medical practitioner, was gunned down outside his hospital in Hasanabdad. Dr. Faizal, after getting his medical degree, could have gone to America or England, like many other doctors and earned a lot of money there, but instead he chose to go to his small home town to serve the people there, where he built a modern hospital. When an earthquake struck North Pakistan he loaded a truck with medicines, food, blankets and tents, and headed north, where he camped and distributed help to the needy. Why was he killed? because he was a prominent Shia.

Similarly Dr. Ali Haider, an eye surgeon, along with his son were shot dead in Lahore. Dr. Babar, Dr. Faizal's cousin, was also shot dead. What were their cimes? That they were Shias. Many other such examples can be given.

On 28.5.2014 a pregnant woman, Farzana Parveen, was stoned to death in midday outside the Lahore High Court in a busy thoroughfare as an 'honour killing' for marrying a man against the wishes of her parents. Her father, brothers, and cousins were among the assailants. One family member tied her neck with a cloth, while others smashed her skull with bricks. All this was done in the public gaze. Her father later said he killed his daughter because she had dishonoured the family, and he had no regrets.

According to reports, about 1000 girls are victims of 'honour killings' every year. 83% Pakistanis support stoning to death for adultery. One couple killed their daughter for 'dishonoring' them by throwing acid on her face.

On 26.5.2014 Dr. Mehdi Ali Qamar, a Canadian citizen since the early 90s, was gunned down in front of his wife and child in the town of Chenab Nagar in Pakistan. He had travelled from Canada to Pakistan to train local doctors at Tahir Heart Institute for 3 weeks. He was shot dead by fanatics because he belonged to the Ahmedi sect. Two men on motorbikes shot him in the back, and when he turned, fired 10 more rounds into his chest. He was the youngest of 7 brothers and sisters, all of whom had migrated to North America out of fear of religious persecution.

Minorities in Pakistan (Hindus, Sikhs, Christians, Ahmedis, and Shias) live in a state of fear, and are particularly vulnerable .

This is the inevitable consequence of declaring Pakistan as an Islamic state.

Release of Indian Fisherman

The decision of Pakistan to release 151 Indian fishermen in Pakistani jails and 57 Indian boats should be appreciated. The Indian government should also consider releasing Pakistani fishermen in Indian jails.

These fishermen are usually poor people, who do fishing for a livelihood. They are arrested and jailed, often for several years, for allegedly straying into the other country's territorial waters. The problem is that there is no clearcut borderline on the Arabian Sea or technology which can indicate where one country's sea border ends.Consequently, a fisherman can inadvertantly cross over the invisible border.

In my opinion a humanitarian view should be taken in these matters as most of such people are poor persons who may have innocently made a mistake

A Welcome Move: Invitation to Nawaz Sharif

The invitation by Mr. Modi to the Pakistan Prime Minister to attend the oath taking ceremony should be welcomed.

All well meaning people should want good relations between India and Pakistan. We are both poor countries. About 75% people in both countries suffer from poverty, hunger, unemployment, and lack of health care and good education for the masses.

We both presently spend huge amounts on our armed forces. If we have good relations this huge amount of money can be spent on eliminating the abovementioned socio-economic evils and on welfare programmes. If, however, we fight with each other we will continue  to spend huge amounts on armaments ( presently both India and Pakistan are among the 5 top purchasers of arms in the world). India's 2013-14 defence budget was Rs. 2 lakh crores (over $40 billion) of which over 41% was for buying new weapons. 

The test of every system is whether it is raising the standard of living of the masses. Poverty, hunger, unemployment, disease, etc have no religion or caste. Therefore India and Pakistan should collaborate in eliminating our massive socio-economic evils, rather than fighting with each other.

  -Justice Katju

Attack on Hamid Mir

I strongly condemn the attack in Karachi on Hamid Mir, the well known Pakistani journalist, who sustained 6 bullet injuries in the attack. This is a direct attack on media freedom, whether it was by the Taliban or ISI or anyone else.

           

Though I have differed with some of the views of Mr. Hamid Mir, I believe he has the democratic right to express his views.

            It is sad that a section of the Pakistan media has condemned Hamid Mir for his criticism of the ISI of Pakistan. But why can an intelligence agency not be criticized in a democracy? In India the C.B.I. has often been criticized.

            Those who say that the I.S.I. or other government institutions cannot be criticized forget that in a democracy the people are supreme, and therefore can criticize all government agencies, which are only servants of the people.

In feudal times the king was supreme, and the people were his subjects. Hence the people had no right to criticize the king, and were punished for doing so.

            However, in a democracy this relationship is reversed. Now the people are supreme, and all authorities, whether the legislature or the ministers, or judiciary, or bureaucrats, or police, or army, are nothing but the servants of the people. Surely the master has the right to criticize his servant, and take him to task if he is not working properly or doing something improper.

            Hamid Mir had blamed the I.S.I. for being behind the criticism of him regarding Veena Malik’s marriage and qawwali, and the disappearance of Baluchi nationalists who were in I.S.I. custody. If the I.S.I. were aggrieved against this it could have filed a defamation case against Mr. Mir, but giving him threats or attacking him is not acceptable in a democracy.

            Many independent minded journalists in Pakistan have been attacked (whether by Taliban elements or ISI) and many killed. This is deeply regrettable and condemnable.

            Some clerics in Pakistan strongly condemned Geo T.V. for showing a qawwali during Veena Malik’s wedding. This just shows the level of bigotry and stupidity prevailing in Pakistan. If this trend continues. I fear that soon the saner, liberal and secular voices will totally disappear from Pakistan, and even the educated people, out of fear, will keep their mouths shut and bow down permanently before these feudal, fanatic elements in Pakistan, which will drag it into the middle ages.