But the devil lies in the details.
The Hindu Laws were reformed during the Nehru period and modernized under Hindu Code Bills(for example, it reflects equality of women in many aspects) While the Christian laws which was prevalent during the British days were considered modern enough and did not need that refinement. But the Muslim Personal Law which was antiquated and was there since British days was untouched. The other religious people like Sikhs and Buddhists were brought under the Hindu Code Bills.
Nehru can be blamed for not reforming the Muslim Personal Laws. And the legacy was followed by his descendants as well. Any future attempt by the Indian courts to chip away some of the antiquated provisions under Muslim Personal Law was stalled by the Congres(notable example Shah Banoo case and the subsequent bill stalling the court ruling by Rajiv) and now I am afraid the same will happen as the AIMPLB is opposing the RTE.
Muslims are not treated differently under laws but the rulers of the land join hands with the religious conservatives to play divisive politics.
Not to sound supercilious, but your excellent summary is a summary of a known situation. With some difference in the details that you have suggested, which are important enough to remind ourselves about.
The Hindu Personal Law was under reform from the 19th century onwards. The Special Marriage Act, for instance, was legislated due to the firm objection of the Brahmo Samaj to being lumped with caste Hindus. So much for the spluttering brigade which puts a thick coat of Dharmic identity over all systems of faith of south Asian origin. This was in 1872, and was revised in recent years, in the Nehru era, sometime in the 1950s.
Subsequently the Sarda Act came in force by 1929. It restrained child marriage, and provided for punishment for violation, but did not invalidate the marriage itself.
Not only were the reforms of Hindu Personal Law not as recent as the Nehru era, there were also inter-relationships with other Indian laws of the Hindu Personal Law, for instance, in the interaction of the Hindu Undivided Family with the Hindu Marriage Act, as well as the Hindu Succession Act. Both those acts were modifications of Hindu Personal Law, brought in as clarifications, and they created as well defined the scope of the Hindu Undivided Family.
Just to add a complication, Hindus are divided into two sections under the Hindu Personal Law. While most Hindus within India are subject to Mitakshara, we Bengalis are governed by Dayabhaga. The provisions of these two codes is different, and judges pay due attention to these. So, too, must bankers; they may lend to Hindu Undivided Families formed by families governed by the Mitakshara code, and those formed by families governed by the Dayabhaga code in completely different manner.
The point is that all these complications apply to Hindu Personal Law, and are recognised by law. These peculiarities are not rejected simply because they do not exist in other systems of Personal Law; they are respected and implemented, and judges need to be aware of them and of their implications while hearing a matter.
It is wrong to think that Hindu Personal Law was equated to Civil Law under Nehru. This personal law was reformed according to the requirements of its constituents, and not necessarily always in the direction of modernity. The Hindu Undivided Family is a concept which allows considerable flexibility in tax matters to our community, so it is wrong to assume that we are underprivileged compared to Muslim or Christians.
It is also wrong to say that Muslim Personal Law was antiquated and not touched since British days, since, as we have seen, many aspects of Hindu Personal Law were articulated long before the Muslim Personal Law, which first entered the statute books in 1937, with an amendment in 1939. How does this compare unfavourably with the 1872 Special Marriage Act, and with the 1929 Sarda Act?
Coming to your comments about the reforms of the Muslim Personal Law, while I am a critic of Nehru, for various reasons, it is unfair to put the burden of failure to reform Muslim Personal Law on him. It was the failure of the entire Congress party, and stemmed from the unfortunate decision of Gandhi to align the independence movement with Muslim conservatives, with the religious orthodoxy, rather than the 'salariat', who in reaction flocked to the Muslim League.
We have to understand the impact on today's politics of that alignment.
The alignment is shown clearly by the ardent support of mediaeval minds like 'Maulana' Maududi (who was a Maulana only by acclamation) and the Jamaat-e-Islami. They opposed Pakistan tooth and nail, and called it Paleetistan; to them, Jinnah was Kufr-e-Azam. It was only sometime after partition that Maududi made his way into Pakistan, and made the amazing volte face of declaring that the conservatives had all along been in favour of Pakistan. The subsequent history of Pakistan shows the gradual, creeping erosion of liberal values by the conservatives, first by the massacre of Ahmedis, for which Maududi was condemned to death by the Pakistani courts.
In India, the Congress continued to back conservative, orthodox Muslim sections, rather than the progressive elements. It is hugely hypocritical of right-wing Hindu conservatives (the shouting brigade on PDF) to blame Muslims today for being led by conservatives, when Indian leadership of left and right had both rebuffed progressive Muslims and encouraged orthodox Muslims. That is why brave individuals like Arif Mohammed Khan or Asghar Ali Engineer or Javed Akhtar are isolated figures in their own community, because the community knows who has government backing.
There has been a lot of gibing about the Shah Bano case. Let me sum it up for you. The courts decided against the interpretation (it was only an interpretation) that maintenance was to be paid to a divorced Muslim woman only for three months after the divorce. The Supreme Court held that maintenance was payable throughout the life of the divorced person.
Conservative Muslims opposed it. The Congress government of Rajiv Gandhi made one of its tragic blunders, caved in under pressure, and legislated a bill to cover the situation, to ensure that maintenance would only be for three months after the divorce, as the Mullahs had interpreted it.
This is where most people are satisfied to stop, and to excoriate the Muslim community for being backward and mediaeval. It also comes to the entirely unjustified conclusion that Muslims are not treated equally with others under the laws of the land. This conclusion stems from the inference that the Supreme Court judgement was not honoured, and legislation was brought in to contradict the court verdict. This conclusion is simplistic and wrong.
Indian courts have ensured that the bill in question should be interpreted in a fair and equitable fashion, by applying the law in accordance with the needs of natural justice. For instance,
High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.
You mentioned the fear that the AIMPLB would sabotage the Right to Education Act by opposing it. The AIMPLB is purely a self-appointed NGO with NO statutory power, and NO claim to be the sole arbiter of Muslim Personal Law.
I suggested ignoring it, and it raised a storm.
It is precisely by ignoring this body of regressive priests and religious scholars that we can enfeeble their authority. Every time they are acknowledged or their primitive opinions are entertained or allowed to obstruct progressive legislation, we are allowing them to wield undue influence over our lives, and to keep the Muslim community in the belief that this board has some legal standing.
In conclusion, I disagree with your detailed analysis, but agree totally with your summary,
Muslims are not treated differently under laws but the rulers of the land join hands with the religious conservatives to play divisive politics
Indeed, the devil does lie in the details.
same old lame logic....
Tell me, if India is NOT a Muslim country then why should the Muslims be treated differently here...
Your running partner mentioned that in a Muslim country, I should not have been able to take the stand that I took. As is obvious, I pointed out that this is not a Muslim country. The rest of your rambling post is not connected in the remotest manner to that exchange.
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