New Delhi

Biased Courts

The socio-political climate in India today calls for a uniform
civil code. Communal sentiment may only worsen as the
code is based on principles of Hindu law.

By Shahrukh Mehboob | September 2020

Communal violence or violence between groups that define themselves by their differences from each other is one of the foremost human rights problems today. But the violence of the past 20 years differs from that of previous decades. Responsibility for the current sectarian violence lies not with specific extremist groups but with governments that leverage inter-group hatred to gain power. Such systemic sources of communal violence threaten basic principles of democratic government and non-discrimination. The communal violence seen today originates in identity politics which impact the group nature of rights, experience and identity, whether based on race, sex, caste, class, language, religion, or national/regional origin.

In today’s India, the greatest amount of sectarian conflict originates in tensions between the Hindus and Muslims. A variety of explanations for the conflict exist. They include the Muslim invasions of India over a thousand years, the forcible conversion of some Hindus to Islam and the cultural and religious differences between the Hindus and Muslims. The psychological effect of the partition of the Indian subcontinent into a predominantly Hindu India and a predominantly Muslim Pakistan is also a factor. The poverty of Muslims who remained in India after partition must also be taken into consideration as well as the rise of Hindu political supremacy in India.

In the past ten years, three kinds of judicial decisions have tended to provoke hostile communal attitudes and to spark acts of sectarian violence. They include decisions which hold that certain religious practices are un-Indian; decisions which, out of concern for national integration, undermine rights under the Indian constitution’s Articles 25 and 26 to profess and practice religion; and decisions that resolve cases involving communal crimes based on overriding political considerations. Each type of decision has challenged the constitutional relationship between religious and secular law. Judicial decisions that endorse a narrow, rigid view of the Indian identity compromise principles of Indian secularism and fuel xenophobic communal attitudes.

In 1994, the Indian Supreme Court reemphasized the fact that the Constitution prohibits the state from identifying itself with or favouring any particular religion or religious sect or denomination. Judicial opinions that favour a monolithic view of the Indian identity are therefore unconstitutional. Nonetheless, the decisions discussed here illustrate the influence of communal thinking on the judiciary and suggest one way in which the judiciary can trigger communal animosity. Increasingly, in India today, the terms “true Indian,” “un-Hindu,” or “true Muslim” surface in judicial decisions. Typically, the “true Indian” argument appears concerning cases where religious law conflicts with other religious or secular law. For example, when pressure was brought to bear on one divorced Muslim woman, it induced her to renounce the Supreme Court’s order for maintenance which she had won and Muslim fundamentalist groups hailed her for having become a true Muslim woman.

Read More