Points of Law by Dr Mohammad Manzoor Alam (FEBRUARY 11, 2011)


Dr Mohammad Manzoor Alam on law, language and modes of representation

A good grasp of language is supposed to be a core asset in the legal profession. The ability to see, discern and articulate nuances makes fine judges and lawyers who serve the purposes of justice with finesse, accuracy and laudable efficiency. It is rightly said, thus, that with the decline in the standards of English language in Anglophone countries a discernible decline in the quality of justice has crept in.

I have to say it because on February 9, I saw a report in The Times of India  that said quoting a Supreme Court bench, “The Hindu community has been more tolerant to these statutory interventions. But there appears a lack of secular commitment as it has not happened for other religions”.

Justices Dalveer Bhandari and AK Ganguly made the observation while hearing petitions filed by the National Commission for Women (NCW) and its Delhi chapter. Because Hindus are “tolerant” of such legislative interventions, the Centre amends personal laws of Hindus only, their lordships said.

One wonders whether the observations could have been a little more nuanced, because there are too many points to be taken note of before privileging the Hindu community as “more tolerant to these statutory interventions”. There is more to different statutes in the country that meets the eye. One also has to keep in mind which amendments a faith community is tolerant to and which it is not. An issue of representation (how we ‘represent’ something) is also involved here.

Then there is the question, which religious reforms came in which denominational community and whether the others, too, needed reforms in those areas. For instance, abolition of sati did not have to be replicated by Muslims and Christians, and widow remarriage did not need the force of law behind it in case of Muslims and Christians as it was required in case of Hindus only. Hence, this reform had to be Hindu-specific.

Right to property had been an old entitlement of Muslim women, but Hindu women got it only through amendment in Hindu law. The case being 50, value-laden remarks from judicial authority may inflect the picture and end up privileging one denomination over others.

Even today, some of the more serious threats to women’s wellbeing – like female foeticide, female infanticide, falling sex ratio of women versus men – are less representative of Muslim or Christian women than Hindu women. Bride-burning, widow banishment and allied misogynic practices are largely associated with the “tolerant” group.

The above quoted remarks came during the hearing on the NCW plea for having a “uniform” age of marriage as different statutes had different positions. This, according to the report, created confusion.

Yes, there is quite a lot of confusion. For instance, there is a lot of confusion between a Common Civil Code (CCC) and a Uniform Civil Code (UCC). A second story in the TOI said this was the third time that the Supreme Court had supported the cause of a Uniform Civil Code.

A Uniform Civil Code is as much about broadly homogenising the different denomination’s personal laws as much as canonising each of the denomination’s diversity of laws. To make it clear, Hindu Personal Law itself is different in different regions. Making it “uniform” will demand such exercises in Hindu Law itself and, I am sure, that is not going to be easy.

The idea of uniformity is mainly about intra-religious uniformity while the idea of a Common Civil Code is about having a single set of personal or family laws for all faith communities.

When the first reforms in Hindu family laws came, much of upper-caste, upper-class Hindu India opposed them. The opponents included the first president, Rajendra Prasad. However, it was Pandit Nehru’s force of will that carried the reforms through.

Also, in the past a Common Civil Code has been opposed by influential Hindus. The reason is not far to seek: In quite significant ways, the personal laws are loaded in favour of Hindus and against minorities. The “tolerant” group is not going to allow this advantage to be wrested away.

To state it more clearly, Hindu Personal Law allows double economic and financial advantage to Hindus, which is denied to Muslims and Christians. They have a higher land-holding ceiling. A Hindu individual is allowed to have the same acreage of agricultural land (the ceiling is different in different regions) as an individual of Muslim or Christian religion. The same holds good for urban land (which, naturally, has a lower ceiling).

However, the Hindu individual as a member of Hindu Undivided Family (HUF) is allowed to hold additional land, while Muslims and Christians are denied this advantage.

The same is true for income tax ceiling. A Hindu individual has to pay income at the same rate as anyone else. However, he/she is entitled to have another income as a member of HUF, which others are denied.

I wonder whether the tolerant group is going to allow fair-play and uniformity in such matters.

I am sure nobody is in a hurry to change it, nor is anyone going to question the anomaly in the Hindu law which says that a girl’s rights in parental property are forfeited if she marries a non-Hindu.

Finally, these issues are too important to allow any facile remarks or the privileging of one faith community over the other. The courts have to care as much about the nuances of their pronouncements as about general meaning of the words they choose to employ.


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