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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.

“True Indian” arguments have been made in cases involving Hindu men who challenge the exclusive right of Muslim men to have more than one wife. For example, in Sarla Mudgal v. Union of India, four women sued for bigamy after their husbands converted to Islam to marry again without first divorcing them.

The Indian Supreme Court held that the second marriages violated Hindu personal law and were therefore invalid. In his concurring opinion, one justice further noted that the conversions were made only to escape the consequences of bigamy. But rather than squarely condemning the defendants for their conversions to Islam, the court unambiguously laid the blame for fraudulent conversions to Islam on the plurality of personal laws in India. It called on the government to enact a uniform civil code for people of all religions. The court further noted that State reforms of Hindu, Buddhist, Jain and Christian personal laws showed that these groups “had forsaken their sentiments for the cause of national unity,” while other communities had not done so.

The court implicitly distinguished between “true Indians” and those who engaged in religious practices which deviated from rituals of the majority: Those who preferred to remain in India after the partition of India fully knew that the Indian leaders did not believe in a two-nation or three-nation theory and that, in the Indian Republic, there was to be only one nation, the Indian Nation and no community could claim to remain a separate entity based on religion. Understandably, the court’s call for a uniform civil code was instigated by the “totally unsatisfactory state of affairs” without one and the need to check the abuse of religion. However, in the existing socio-political climate, calls for a uniform civil code only exacerbate communal sentiment because the proposed code promoted by the Congress Party resembles Hindu laws.

Given this environment, the Sarla Mudgal decision provoked communal animosity in two ways. First, by suggesting that bigamy is un-Indian, the court implied that Muslims in India are un-Indian. Second, whatever the merits or demerits of bigamy, Muslims interpreted the court’s pronouncement not as a statement about the plight of women but as a statement about the perceived problems which Muslims pose to national unity and social reform. In this light, minorities viewed the call for a uniform civil code as a threat to their constitutionally protected right to manage their religious affairs. The nondiscrimination and equal protection clauses of the Indian Constitution, in conjunction with the guarantees of freedom of conscience, prevent the state from giving a particular religion or sect preference over others. Hence, courts should instead base their decisions on “secular” arguments and policy considerations independent of sectarian notions of a “true Indian” identity.

The court in the Sarla Mudgal case could have done so in several ways. For example, the Bombay High Court had previously held that religious practices that undermine public order, morality, or health must give way to the good of the people of the State as a whole. In several bigamy decisions Indian courts had held that a Hindu or Christian who converted to Islam to remarry was not exercising his freedom of conscience and converted fraudulently. The court in the Sarla Mudgal case could have argued that such fraudulent conversions were a “growing menace” contrary to both public order and morality and were an injustice to both Hindu and Islamic law. They also violated the spirit of the constitutional guarantee of freedom of conscience, given that these fraudulent conversions showed the biasness of Indian judges and could potentially worsen group relations.

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