Monday, October 29, 2001, Chandigarh, India




E D I T O R I A L   P A G E


EDITORIALS

Another CM on his way out
S
OON after the installation of Mr Narendra Modi as Chief Minister of Gujarat, when Mr Keshubhai Patel was asked by the BJP central leadership to resign, a similar exercise had been on in Uttaranchal Pradesh. Finally, Mr Nityanand Swami has been directed from Delhi to resign to make way for "a younger leader" to take up the reins of power. The same argument was advanced when Mr Patel was told to leave the office of Chief Minister and Mr Ramprakash Gupta in UP was forced to go, to allow Mr Rajnath Singh to run the show a year ago.

War plans go awry
T
HREE weeks on, the American bombing of Afghanistan has raised several disturbing questions. The initial war aim to capture Osama bin Laden alive or dead has changed into toppling the Taliban regime in the name of blotting out support for international terrorism (read the invisible Al-Qaeda). What will replace it even if the regime is destroyed, which looks quite problematical?


EARLIER ARTICLES
National Capital Region--Delhi


THE TRIBUNE SPECIALS
50 YEARS OF INDEPENDENCE

TERCENTENARY CELEBRATIONS
OPINION

How JP movement helped BJP
Golden jubilee celebrations & Indian democracy
M. G. Devasahayam
A
DDRESSING the BJP’s golden jubilee celebrations the other day, Mr L.K. Advani indulged in a bit of hyperbole when he drew a parallel between the resurrection of Jesus Christ and the birth of the Bharatiya Janata Party in 1980; the parallel being that the Jana Sangh was expelled from the then Janata Party on Good Friday in 1980 and, two days later the BJP was born on Easter Sunday. It looks as if Christian bashing by its sister organisations like the RSS and the VHP notwithstanding, the BJP’s top leadership fond of drawing on Jesus Christ for comparisons.

MIDDLE

Train traveller
Anurag
I
am not talking of the much dreaded daily passenger — although everyone is one on some platform or the other — the commonplace commuter,
One who spends his life
In riding to and fro his wife,
A man who shaves and takes a train,
And then rides back to shave again.


TRENDS & POINTERS

Manners make relationships
I
N a world changed with time and technology, only a boor would ask other diners in a restaurant to keep the noise down so he can hear the person on the other end of his cell-phone. Nearly 80 years after Emily Post first wrote Etiquette, her great grandchildren are carrying her legacy of consideration, respect and honesty into the 21st century. They have updated her tome on etiquette, another on weddings and even written their own guide to manners for the workplace. And they plan another book on parenting.

POINT OF LAW

Anupam Gupta
Supreme Court on Muslim law 
From Shah Bano to Daniel Latifi
“M
USLIMS will allow attacks on Allah,” wrote Wilfred Cantwell Smith, the noted scholar of Islam, “there are atheists and atheistic publications, and rationalist societies; but to disparage Muhammad will provoke from even the most “liberal” sections of the community, a fanaticism of blazing vehemence.”

SPIRITUAL NUGGETS



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Another CM on his way out

SOON after the installation of Mr Narendra Modi as Chief Minister of Gujarat, when Mr Keshubhai Patel was asked by the BJP central leadership to resign, a similar exercise had been on in Uttaranchal Pradesh. Finally, Mr Nityanand Swami has been directed from Delhi to resign to make way for "a younger leader" to take up the reins of power. The same argument was advanced when Mr Patel was told to leave the office of Chief Minister and Mr Ramprakash Gupta in UP was forced to go, to allow Mr Rajnath Singh to run the show a year ago. In all these states the BJP has been worried about its declining popularity, and hopes to reverse the process by a mere change of guards. The task is not so simple. The scenario is more shameful in Uttaranchal where, perhaps, one of the possible replacements for Mr Swami, Mr B. C. Khanduri, Minister of State for Road Transport at the Centre, has quietly expressed his unwillingness for being sent to Dehra Dun as he fears this may jeopardise his political career. The reason is that the newly created hill state has to go to the polls soon and there is little hope of his party retaining power. Mr Khanduri obviously wants to keep himself away from this emabarrassing situation. That leaves Mr Bachi Singh Rawat, Minister of State for Science and Technology at the Centre, and Mr Bhagat Singh Koshiyari, Power Minister in the Swami government, in the race, with the latter, a dark horse, appearing to emerge as the winner. This does not mean that they are not aware of the likely fate of their party in the coming battle of the ballot. Their calculations and plans, perhaps, have nothing to do with the outcome of the elections. However, who will replace Mr Swami is not as important as is the point that any party which ignores development-related issues can no longer expect to retain power unless some unforeseen factors come into play.

People are longing for increased avenues of employment and infrastructure development in the new state. They believed that with the carving out of Uttaranchal, development-oriented projects would be taken up on priority. Today they feel cheated. The Nityanand Swami government has had no time for such matters because of the Chief Minister remaining preoccupied with keeping his flock together to save his coveted position. His camp is even now lobbying in Delhi for a review of the decision taken against him. There is no reason why they should not do so. It is not only the Chief Minister who is to blame for the failure of the BJP state government to deliver the goods. This is also owing to a variety of pulls and pressures from Delhi as there are at least three centres of power and each wants to promote its own group interests. The result is an unending infighting, rendering the Chief Minister — whether in Uttaranchal, Uttar Pradesh or Gujarat — unable to function in accordance with the aspirations of the people. Thus, the imposition of Chief Ministers from Delhi, in the style of the Congress, will not do.
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War plans go awry

THREE weeks on, the American bombing of Afghanistan has raised several disturbing questions. The initial war aim to capture Osama bin Laden alive or dead has changed into toppling the Taliban regime in the name of blotting out support for international terrorism (read the invisible Al-Qaeda). What will replace it even if the regime is destroyed, which looks quite problematical? The Taliban is a loosely structured organisation but highly regimented. In the real sense, it will fight to the last member. The Afghan code of honour commits every male to resist alien imposition of a government. This simply means that the Saudi fugitive will escape US hands (a senior American official has accepted this possibility) and also the Taliban will be no push-over. The capture and execution of Abdul Haq, a pro-American guerrilla leader of yesteryears and the disappearance of Hamid Barazi, another Afghan sent to split the Taliban, show the grave risks involved in ejecting the regime. The Taliban is not a political party. It is a religious militia and hence difficult to destroy. In fact there is no political organisation in that country since the once strong parties had been eliminated during the two decades of civil war. Pakistan tried to circumvent this shortcoming by convening a meeting of tribal and religious leaders in Peshawar. But it was of no help; it demanded that the US bombing should end soon. The Zahir Shah option is proving to be no option at all; he left the country 30 years ago and not many remember him.

The real crisis for the USA, and hence Pakistan, will come in the month of November. One, Ramzan starts on 17th and the cruel winter almost at the same time. By then the few more visible military targets would have been destroyed. Taliban leaders and cadre have left their known bases and dispersed in the countryside. That will be the time to launch ground attack and face sniper fire. Almost every Afghan carries a rifle and the hilly terrain provides excellent cover for the locals. The Americans have two alternatives. They can stop bombing and lose popular support at home or press on and lose the fragile support in Muslim countries. Ground action will be lengthy for two reasons. It has “junk intelligence”, as one US official has described the help from Pakistan, and fighting an unseen enemy spread all over the country is time consuming. The chief of defence staff of Britain feels it will take four years to eliminate the Taliban and that is a long time. Nearer home, Pakistan faces a similar fallout. A long war and increasing civilian casualties will weaken General Musharraf’s position. The USA and Pakistan wanted a repeat of Operation Desert Storm against Iraq in 1991 that ended within 16 days. It is likely to end up as a mini Vietnam war that ended in a humiliating flight in 1975.

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How JP movement helped BJP
Golden jubilee celebrations & Indian democracy
M. G. Devasahayam

ADDRESSING the BJP’s golden jubilee celebrations the other day, Mr L.K. Advani indulged in a bit of hyperbole when he drew a parallel between the resurrection of Jesus Christ and the birth of the Bharatiya Janata Party in 1980; the parallel being that the Jana Sangh was expelled from the then Janata Party on Good Friday in 1980 and, two days later the BJP was born on Easter Sunday. It looks as if Christian bashing by its sister organisations like the RSS and the VHP notwithstanding, the BJP’s top leadership fond of drawing on Jesus Christ for comparisons.

Way back in 1978 Mr A.B. Vajpayee compared Jayaprakash Narayan with Jesus Christ. Turning on oratory, which was his forte, he had said: “JP was not merely the name of one person; it symbolised humanity. When one remembered Mr Narayan two pictures came to one’s mind. One was reminded of Bishmapitamah lying on a bed of arrows. The second picture was one of Christ on the Cross and Mr Narayan’s life reminded one of Christ’s sacrifices.”

While Mr Vajpayee’s likening of JP’s sacrifices with that of Jesus Christ may pass muster, Mr Advani’s comparison is off the mark. The days he mentioned might match, but the events that happened 21 centuries and 21 years ego can never do so by any stretch of the imagination. Christianity’s Good Friday symbolised the supreme sacrifice of laying down one’s life so that humanity could live with values and peace. Easter Sunday represented the triumph of life over death and good over evil. But the Jana Sangh’s Good Friday 21 years ego was a betrayal of political values. The BJP’s Easter Sunday was only the rebirth of the Jana Sangh in a more resurgent form damaging the fabric of Indian democracy. In fact, by celebrating 50 years of its existence the BJP has formally acknowledged that it is “nothing but Jana Sangh.”

Mr Advani is probably wrong about the date of rebirth itself. Actually, the Jana Sangh alias the BJP was reborn not in April, 1980, but in January, 1977 when Indira Gandhi called for parliamentary elections after 18 months of rigorous Emergency rule. She did it with the supreme confidence of trouncing the virtually non-existent Opposition and romp home convincingly. But she had not factored in the old recluse tied to a dialysis machine in Patna. With the kind of indomitable spirit for which he was known, JP put together a group of disparate political entities under the banner of Janata Party, took Mrs Gandhi’s juggernaut head on and defeated it. The Jana Sangh’s inclusion in the Janata combine was in fact its reincarnation since at that time this party was languishing and drifting without a base worth mentioning.

The raging controversy that followed the Janata Party’s victory and assumption of power was JP’s alliance with the non-secular Jana Sangh and the rabidly communal RSS in achieving these. Particularly so because JP had sharply admonished the RSS and the Jana Sangh on several occasions: “The secular protestations of the Jana Sangh will never be taken seriously unless it cuts the bonds that tie it so firmly to the RSS machine. Nor can the RSS be treated as a cultural organisation as long as it remains the mentor and effective manipulator of a political party”. Despite such a categorical disapproval, JP associated this ‘communal organisation’ in the Janata combine that ousted the emergency masters. He had compelling reasons for this. JP was keen to have a cadre-based party to give punch to the disparate political combination and there were only two of them at the national level — the Jana Sangh and the communists — at that time. JP did not trust communists because “Communists were professional collaborators. They collaborated with the British and must now be collaborating with the Emergency coterie.” Indeed they were! Besides, top, Jana Sangh and RSS leaders had taken pledge in his presence to give up “dual membership” and communal politics in the event of coming to power at the Centre, and JP had no reason to doubt their honour and integrity.

As nemesis would have it, the Janata Party disowned JP from day one and indulged in crass one upmanship. The Jana Sangh, an important component of the Janata Party, had its own agenda. Within a short period its leaders saw to it that the Janata Party as an entity got decimated, using the “dual membership” card effectively for the purpose. This done, the Jana Sangh, in its new avatar of the BJP, wanted to assume centre-stage and capture power. For this the party attempted to consolidate the moral and secular legacy of the Janata Party, bequeathed by Jayaprakash Narayan and to break with the inheritance of the Jana Sangh. This was partly because during the brief Janata regime its membership had expanded dramatically, and partly because value-based politics of the JP movement in the mid-1970s had proved a potent technique of mass mobilisation. In the first half of the 1980s the BJP tried to resurrect the moderate face of the Janata Party.

This ploy did not work and the party received a severe drubbing in the 1984 parliamentary elections and could win just two seats. In total disarray, egged on by the radicals and motivated by dreams of power, the BJP decided that it should reinvent itself as the defender of Hinduism by pulling out the “Ayodhya card”. The VHP had in the meantime emerged onto the scene of Indian politics to mobilise Hindu opinion on the issue of Ayodhya. Aligning itself with right wing groups and fringes in civil society, the BJP adopted the hard-core platform of Hindutva. To rally the people and convert them in to votes, they got Lord Ram installed as the new “icon” and projected Ram Janmabhoomi as the “national symbol”. No wonder that having used JP as the propeller to catapult to power and popularity, these worthies sent him to the wilderness only to cling on to their communal agenda.

The BJP’s golden jubilee resolution commending the party’s role in the Ayodhya movement and the call to “continue to propagate the Ram Janmabhoomi project in the right perspective and carry it forward” could as well prove to be the death knell of Indian democracy, already undermined by greed, criminalisation and unfettered corruption. The churning of the Indian polity in the mid-seventies leading to the Emergency and its eventual overthrow was a mid-course correction for the country’s democratic system, dominated by the Congress culture of sycophancy and the dynastic hegemony. Out of this churning emerged a viable alternative in the form of the Janata Party that could have ushered in a two-party system to strengthen and sustain a healthy democracy. But the Jana Sangh’s hidden agenda and its “hot pursuit” by its votaries extinguished this candle even before it became a flame. The “Ayodhya card” reduced the tolerant, sublime Hindu religion to petty politicking, fractured the body politic, and is severely threatening the secular fabric so painstakingly woven by the first generation of leaders in India. Reviving it now only win the forthcoming UP election might as well turn out to be the “last straw on the camel’s back” for India’s plurality and democracy. For, every time the Ayodhya issue has been taken out of the closet, dusted, given a fresh coat of paint, and brandished as an electoral ploy, the country’s history and geography have been irrevocably scarred.

The trend is ominous. Most of the BJP leaders strutting the Indian landscape today are people whom JP brought out of obscurity and who owe their position to JP and his “movement”. Yet the patriot, who won India’s second freedom, has virtually gone out of everyone’s memory and his legacy remains forgotten and forlorn. The BJP’s jubilee celebrations, held in the centenary year of JP’s birth, while pulling out the “Ayodhya card”, did not mention JP even once. Neither has the government headed by this party done anything to perpetuate his memory. The agenda of hate and opportunism pursued by the party is the root cause for this. This is ingratitude, pure and simple.

But, then, as Tamil savant Thiruvalluvar has said, “ingratitude is the worst form of betrayal that can come back and haunt you for times to come”. History is replete with such instances.

The writer, a retired IAS officer, is a well-known political and economic analyst.
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Train traveller
Anurag

I am not talking of the much dreaded daily passenger — although everyone is one on some platform or the other — the commonplace commuter,

One who spends his life

In riding to and fro his wife,

A man who shaves and takes a train,

And then rides back to shave again.

Nor do I have in mind H.H. Asquith who held a season-ticket on the line of least resistance and went wherever the train of events carried him, lucidly justifying his position at whatever point he happened to find himself. Amen.

That reminds me of Lin Yutang who defined a good traveller as one who did not know where he was going and imagined a perfect traveller as one not knowing where he came from.

Travel and togetherness have a lot in common. Someone said: “Travel only with thy equals or thy betters, if there are none, travel alone.” I disagree. Because even if you travel alone you may end up acquainting with strangers. This, however, is not to rule out the possibility of your acquaintances getting estranged...yup, you got it right!

Mine was a down-to-earth, nay down the line, journey recently by the good old Kalka-Howrah Mail. My family of four boarded it at the City Beautiful to reach Allahabad the following day. We woke up in the morning at Delhi to find that most of the co-passengers had got down and several new faces had joined our ranks. It took little time and effort to strike up a conversation. In no time almost everyone could be seen speaking to or listening to actively. If the fair sex focused on one another’s preferences and pretty prudish prattle, the “foul” sex talked of “Tehelkas” of all sorts. Children too proved themselves to be charged chatterboxes.

Post-lunch, at Kanpur, the air of fiesta gave way to siesta. Soon the silence was held to ransom by the snoring brigade. Unable to snatch a wink, I decided to engage my teenagers in some small talk. I casually asked them what they thought was the most important virtue which played a significant role in society. “Be nice, courteous, well-mannered,” grinned Garima. “No, it is the art of flattery which can flatten the mountains,” insisted Gaurav. How do you say so? I interjected.

“Aren’t our scriptures, prayers and rituals replete with praise to God? If Gods can be pleased with flattery, what to talk of the ordinary mortals? People chant hymns to God for worldly gains. Don’t they?” Gaurav gushed.

I looked nonplussed. Now it was the turn my better half to convince this bitter half that flattery was a victimless crime, which pleased both the flatterer and the flattered.

As the train entered Allahabad, another train of thought ran through my mind, as if to reaffirm that.

Life is like a journey on a train,

With two fellow travellers at each window pane.

I may sit beside you all the journey through,

Or I may sit elsewhere, never knowing you.

But should fate mark me to sit by your side,

Let’s be pleasant travellers — its so short a ride!

Let the train take the strain. Good luck. Happy tidings.

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TRENDS & POINTERS

Manners make relationships

IN a world changed with time and technology, only a boor would ask other diners in a restaurant to keep the noise down so he can hear the person on the other end of his cell-phone.

Nearly 80 years after Emily Post first wrote Etiquette, her great grandchildren are carrying her legacy of consideration, respect and honesty into the 21st century. They have updated her tome on etiquette, another on weddings and even written their own guide to manners for the workplace. And they plan another book on parenting.

Although times have changed since the 1920s, the Posts insist the principles of etiquette remain the same. “The underlying goal is to develop good relationships for people to enjoy each other,” Peter Post says.

From a narrow brick-walled office in a renovated old school in Burlington, Post, his sister Cindy Senning and sister-in-law Peggy Post oversee the Emily Post Institute.

The tips run the gamut from the formal (how to set the table for a formal dinner) to the obvious (be on time for job interview) to the frivolous (how to eat a salad). They review traditional lapses, such as maintaining a graceful posture, and address modern predicaments — among them, what kind of gift to get for someone’s fourth wedding. All are tenets of consideration, respect and honesty.

Society has become faster-paced and etiquette evolves with advances in technology and new ways of communicating. Cell-phones, for example. “I call it cell phone anarchy,” Senning says. “There are no rules about cell-phones. We all got cell-phones and we all started using them.” Often at high decibels in public places, it is impossible for bystanders not to hear, whether they want to or not, she says. Something to keep in mind: The rest of the world doesn’t necessarily want to hear your private conversations.

As society becomes faster-paced, lives have become more stressful. Workers are expected to do more with less, and that leads to incivility in and outside the workplace, says Peter Post. “Stress is what causes incivility,” he says. Treating a clerk at the convenience store or a hurried cab driver with courtesy and even engaging in a conversation pays off. That advice goes for work as well.

“The top reason people leave their jobs is because of their managers,” Peter Post says. If a problem arises at work or with a co-worker, he says, “ask yourself if you really want to make an issue out of it.” Stand up for yourself but never resort to confrontation, even if someone cuts you off in traffic, or has a cart full of groceries in the 15-or-less checkout line. You never know what motivates people to do what they do, the Posts say. AP
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Supreme Court on Muslim law
From Shah Bano to Daniel Latifi
Anupam Gupta

“MUSLIMS will allow attacks on Allah,” wrote Wilfred Cantwell Smith, the noted scholar of Islam, “there are atheists and atheistic publications, and rationalist societies; but to disparage Muhammad will provoke from even the most “liberal” sections of the community, a fanaticism of blazing vehemence.”

Beginning as it did with a critical, almost sarcastic, reference to the Prophet’s opinion about women, the Supreme Court’s 1985 judgement in the Shah Bano case was, in retrospect, foredoomed to rejection by the Muslim community.

Reading the judgement today, 16 years later, wiser with the Islamic resurgence throughout the world, one is struck by the utter tactlessness of that reference and the inability of the Supreme Court to appreciate the need of reaching out to the millions of Indian Muslims before embarking on any programme of reforming their personal law.

For, even more than Jewish law and canon law — the two representatives of “sacred law” historically and geographically closest to it — Islamic law, as Prof Joseph Schacht points out, is a particularly instructive example of “sacred law”.

“(T)he most typical manifestation of the Islamic way of life, the core and kernel of Islam itself”, he says, it is “a phenomenon so different from all other forms of law that its study is indispensable in order to appreciate adequately the full range of possible legal phenomena.”

Even theology, he says, has never been able to achieve an importance in Islam comparable to Islamic law.

Poorly understood (I suspect) by Indian judges and law-makers, this imposes severe limitations on any strategy for reform, as another leading legal scholar of Islam, Prof Noel J. Coulson, indicates.

“The clash .. between the allegedly rigid dictates of the traditional law and the demands of modern society”, he states, “poses for Islam a fundamental problem of principle.”

“If the law is to remain its form as the expression of the divine command, if indeed it is to remain Islamic law (he writes), reforms cannot be justified on the ground of social necessity per se.”

“(T)hey must find their juristic basis and support in principles which are Islamic in the sense that they are endorsed, expressly or impliedly, by the divine will.”

“Modernism, therefore (he concludes) is a movement towards an historical exegesis of the divine revelation ... . The Muslim jurist of today cannot afford to be a bad historian.”

Muslim or non-Muslim, scholar or judge, there is simply no escape from this historic responsibility. Or else, perceived outright as un-Islamic, as the Shah Bano verdict was, reform of Muslim personal law will become the bete noire of the community for whom it is meant.

Unfortunately, however, there is nothing in Shah Bano II or Daniel Latifi vs Union of India — on which I wrote last time as well — to show that the Supreme Court is cognisant of the constraints of history in this vitally sensitive area of the law.

Pronounced on September 28 by a five-member Constitution Bench, and interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the judgement in Daniel Latifi’s case exemplifies as nothing before the real problem in addressing the issue of reform of the personal law of Indian Muslims.

The problem of a secular mind unable to fathom, or appreciate, a jurisprudence based on the revealed word and followed by a minority seemingly out of sync with the times.

“Solutions to ... societal problems of universal magnitude,” ruled the Supreme Court on September 28, “pertaining to horizons of basic human needs, culture, dignity and decency of life, and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs, or national, sectarian, racial or communal considerations.”

I had quoted these words in my last article as well but they would bear repetition. For they embody legal modernism in the extreme and dismiss, with a stroke of the judicial pen, the entire problem of personal law.

Examined a little more closely, it is just not true to say that matters of personal law even amongst the Hindus are invariably decided on considerations other than the religious. Take the concept of the joint Hindu family, for instance.

“The joint family is an efficient method of exploiting assets, and in a moral sense it is the nurse of Hinduism,” writes Prof Duncan M. Derrett in his book “A Critique of Modern Hindu Law”, first published in 1970.

One of the foremost authorities on Hindu law in the world , unrivalled perhaps by any other in the depth of his research and the sharpness of his insight, Derrett describes the joint Hindu family as the “most characteristic and fundamental part of the life of Hindus as known to the law: so much so that even marriage must be considered subordinate to it in some degree.”

Disputing the contention that the joint family is breaking down, and maintaining that it “will last, in some form, as long as Hindus are Hindus”, Derrett observes:

“Striking evidence of this is to be found in the fact that Parliament did not reform the joint family in 1955-56: it interfered... with its capital and its administration as soon as a member should die, but it left the institution otherwise unharmed.”

A more apt summation of the effect of the Hindu Succession Act, 1956, will be difficult to find.

The Supreme Court overlooked, therefore, a vital part of the personal law of the Hindus when it ruled on September 28 that matters of personal law must invariably be decided on considerations other than those stemming from religion or religious faith or belief.

The court’s application of article 14 — the Equality clause of the Constitution — to matters of personal law is no less problematic.

Before the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 — the Rajiv Gandhi government’s panicky response to the Shah Bano verdict and its aftermath, as I wrote last time — and since 1974 when the new CrPC came into force, a Muslim divorcee was entitled to maintenance from her ex-husband under Section 125 of the CrPC until she remarried.

The provisions of the 1986 Act (ruled the court in Daniel Latifi’s case) which deprive a Muslim divorcee of such right to maintenance except for the period of iddat and compel her to approach relatives other than the husband, or the Wakf Board, for the purpose, do not appear to be a “reasonable and fair substitute of the provisions of Section 125, CrPC.”

That is undeniable, of course, but if the only purpose of the 1986 Act was to provide a substitute for what already existed in the CrPC, there would be no need of passing it. Once again, history is a casualty.

“Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands ... under the CrPC (the Supreme Court continued), which is otherwise available to all other women in India, cannot be stated to have been effected by a reasonable, right, just and fair law, and if these provisions (of the 1986 Act) are less beneficial than the provisions of ... the CrPC, a divorced Muslim woman has obviously been unreasonably discriminated (against)...”

Unless interpreted, therefore, in line with the Cr PC as understood in the Shah Bano case, the provisions of the 1986 Act “appear (said the court) to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise equally circumstanced.”

They would also be violative of Article 15 (it held), which “prohibits any discrimination on the ground of religion, as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion.”

Extremely attractive at first glance, especially from the feminist point of view, such a constitutionally essentialist approach to matters of personal law cannot but be questioned and questioned seriously.

It assumes, on the one hand, that personal law has nothing to do with religion, an assumption that is clearly wrong and is at the best naive; and, on the other, that personal rights and obligations sanctified by religion are per se unfair, an assumption that shuts out a dispassionate enquiry into the merits of the right or obligation in question.

The problem is not made easier by the fact that, in the case of the Muslims, such an enquiry entails more than a nodding familiarity with the intricacies of the Sharia, something which experience has shown to be beyond the ken of any but the ablest of non-Muslims.

Let me illustrate this with my own example.

It has taken no less than 16 years for it to occur to me that the Supreme Court’s opinion in Shah Bano’s case that mahr or dower is not a sum payable on divorce, was an opinion rendered per incuriam or in ignorance of binding law. The law in question being the Dissolution of Muslim Marriages Act, 1939.

Little known to non-Muslims in India, but hailed even by a scholar of the calibre of Joseph Schacht as a “typical modernist legislation”, the 1939 Act for the first time empowered Muslim women in India to seek divorce from their husbands through court on various grounds, including cruelty, non-payment of maintenance and, above all, the husband’s failure to treat the plaintiff “equitably” in case he has more wives than one.

“Nothing contained in this Act,” reads Section 5 of the 1939 Act, “shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.”

Had the Supreme Court in Shah Bano’s case cared to look up this Act, its entire judgement would have been rendered redundant.

And so would have been, as a necessary consequence, the Muslim Women (Protection of Rights on Divorce) Act, 1986, and the judgement in Daniel Latifi’s case pronounced on September 28.

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Nonviolence is not a cloistered virtue to be practised by the individual for his peace and final salvation, but it is a rule of conduct for society, if it is to live consistently with human dignity and make progress towards the attainment of peace for which it has been yearning for ages past.

*****

Nonviolence to be a creed has to be allpervasive. I cannot be nonviolent about one activity of mine and violent about others.

*****

It is a blasphemy to say that nonviolence can only be practised by individuals and never by nations which are composed of individuals.

*****

Nonviolence in its dynamic condition means conscious suffering. it does not mean meek submission to the will of the evil doer, but it means the pitting of one's whole soul against the will of the tyrant.

*****

Ahimsa is not the goal.

Truth is the goal.

But we have no means of realising truth in human relationships except through the practice of ahimsa.

— The Mind of Mahatma Gandhi

*****

We are not ashamed to sacrifice a multitude of other lives in decorating the perishable body and trying to prolong its existence for a few fleeting moments, with the result that we kill ourselves, both body and soul.

There is a great deal of truth in saying that man becomes what he eats. The grosser the food the grosser the body.

— Mahatma Gandhi, Autobiography, p.237; Harijan, August 5, 1933

*****

Men of contentment loosen their worldly bonds and eat and drink sparingly.

Sri Guru Granth Sahib, Var Asa M.1, page 467
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