UNIFORM CIVIL CODE VS PERSONAL LAW

Muslims, too, can adopt children: Apex court

The Supreme Court on Wednesday ruled persons belonging to any community, including Muslims, could adopt children even if their personal law prohibited it. The Juvenile Justice (JJ) Act gives a choice to a prospective parent to take the secular route or stick to their personal law.

"The Act does not mandate any compulsive action by any prospective parent," the judgment said, adding the Act left such a person "with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him." The judgment said there was no Uniform Civil Codeyet, though it was in the Directive Principles of State Polilcy. The Act was a small step towards it. The court was disposing a public interest petition moved eight years ago by social activist Shabnam Hashmi, who wanted to adopt a child but the Muslim personal law stood in her way. She had asked the court to set guidelines for adoption for all communities. The court said, "Personal beliefs and faiths cannot dictate the operation of the provisions of an enabling statute." It said, following an earlier judgment on inter-country adoptions, the government had set up a regulator, the Central Adoption Resource Agency, which had elaborate rules regarding adoption.

Currently, there is no law of adoption covering all communities, though the Hindu law partially grants the right to community members with several conditions. Other communities are not covered under the adoption laws. Efforts of successive governments have been defeated by religious lobbies, leading to the Supreme Court giving a secular twist to the law through various judgments.

The adoption of Indian children by foreigners was made possible by a Supreme Court judgment in the 1980s following allegations of child-trafficking by unscrupulous international agencies.

Family matters

The Supreme Court’s order giving religious minorities the right to legally adopt children, even if it contradicts personal laws, is a heartening step towards choice and freedom. So far, Muslims, Christians, Parsis and Jews were allowed to be guardians, not legal parents, and their children could not inherit property. Biological parents could assert their rights over the child. Now the court has affirmed that under the Juvenile Justice (Care and Protection of Children) Act amended in 2006, adopted children have the same “rights, privileges and responsibilities” as biological children, and Indian citizens of any religion can legally adopt them.

The judgment has clarified that personal laws cannot override civil laws and the rights they guarantee. “Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute,” ruled a bench headed by Chief Justice P. Sathasivam. This is a useful direction to set, at a time when talk of a uniform civil code tends to fall into pre-set political templates. While the BJP and other rightwing voices insist on effacing minority personal family laws, given that Hindu law has already been brought in line, minorities see it as an attempt to erase their right to live by the tenets of their religion, and their cultural distinctiveness. Political parties that are sensitive to minority rights often defend this point of view, even when it comes to siding with the patriarchs and elders —  as happened in the Shah Bano case. Given that much family law effectively hinges on the control and conduct of women, their rights to property, and matters of marriage, divorce and maintenance, abiding wholly by personal law often means depriving them of equality before the law.

Some have argued that it was unfair to burden Muslim women, for example, with the directive to choose between community and gender identities, and that there needs to be a stress on internal reform, apart from pressing for formal rights. Instead of contending with a strict binary of uniform civil code versus personal law, however, it may be more useful to approach specific issues as they arise, and weigh in between the demands of identity and of equal rights — as the Supreme Court has now done.

The inevitability of South Asia--THE HINDU

Using the name of historical India to serve for that of the independent nation state was a monumental decision whose reverberations continue six decades after the British departed the Subcontinent. While the country with New Delhi as its capital inherited the mantle of “India” — as also the largest by population, geography, demographic diversity and politico-economic prowess — much of the rest of the historical India was left in suspended animation.

Secure in his/her national identity, the Indian citizen is largely unaware of the discomfiture elsewhere. Pakistan and Bangladesh today make up the sixth and eighth largest countries respectively on the planet by population, small only in comparison to India with its 1.24 billion people. The citizens there have the same history in their blood, but “India” is no longer theirs.

In each country of the neighbourhood, including India, the decades have been spent constructing xenophobic nationalism. As happens in newborn nation states, the citizens are straitjacketed into allegiance to national identities in monochrome. This exclusivity is a bane and has introduced subliminal angst all over, and it fails in the managing of myriad self-ascriptions that jostle for space within each of us.

The individual person is linked to family, clan, ethnicity, caste, faith, language, village, district, city, province and nation state — and that is where we are asked to stop the progression. But we are also South Asian, the broadest identity that links us to our past and to each other across the recently created frontiers. There is no doubt about it; ultranationalism has to be challenged with a campaign for cross-border loosening.

South Asian Mahatma

To put a spin to the argument: retroactively speaking, Mahatma Gandhi was a South Asian for most of his life, i.e. a national of the “India” before Partition. He was citizen of the nation state for five-and-half months, between August 15 and his assassination on January 30. Once we make the conceptual jump from India to historical “India,” there can be no question about a Sylheti running an Indian restaurant in New York City, or a Lahori doing the same in Paris. Indian cuisine was developed long before the nation state.

If “India” had been left to its pre-Partition and even pre-colonial avatar, there would have been no reason to take recourse to the dry, a-historical, geographical “South Asia.” The term was introduced by western geo-strategists after 1947, when the need was felt to address this part of Asia. It was not long before some in South Asia too sensed the requirement.

Addressing asymmetry

The South Asian Association for Regional Cooperation (SAARC) was kick-started in 1985 with Ziaur Rahman of Bangladesh in the lead, and it signified acceptance of the concept of cross-border regionalism by all the national establishments. But that is as far as it went, with SAARC unable to loosen frontiers or facilitate commerce. Instead, in the interim, concertina wires have come up along the India-Bangladesh and India-Pakistan dividing lines. Hobbled by a restrictive mandate and small budget, the SAARC organisation is kept on a tight leash by eight different ministries of foreign affairs.

Meanwhile, civil society efforts at South Asian togetherness have foundered, and the activists are today a dispirited lot. Their appeal was to shared history and culture, but the strain of fledgling nationalism proved overpowering. Also, ingenuously, the activists followed the SAARC formula of regional cooperation, their South Asia being an agglomeration of nation states rather than a wide habitat of diverse communities and requiring more nuanced definitions.

What has been missing in implementing South Asian regionalism is the appropriate formulae. The asymmetry of the Subcontinent, with the overwhelming presence of big India at the very centre, the size disparity among the other countries, the demographic diversity within each, plus the variegated culture and collective history — all of this can hardly be addressed by the eight-member, capital-centric SAARC definition. Parallel and complementary definitions, in the plural, are a must. Rather than try to copy the ASEAN or European Union models, an understanding is required that is tailored to history, place and populace.

The eight national establishments do need reassuring that regionalism does not presume a centralised South Asia with single capital, currency and administration — not even a commonwealth of nations. That may well happen over time, but there are other ways to comprehend the South Asian space — for example, to regard bilateral and trilateral activities as also “regional”; to include Myanmar and Tibet even as they fall within adjacent regions; and to go to the subunits (states and provinces) of the two largest countries as the functional components of regionalism, in addition to the sovereign smaller nation states.

This focus on regionalism is not part of a mushy bhai-bhai agenda meant to delight peaceniks. More than a call to dreamy togetherness, South Asian unity is essential if we are to deliver an improved quality of life to hundreds of millions, through growth made possible by economic efficiencies and commerce.

Arc of poverty

We would first have to agree that regionalism — softening borders, easing visa regimes, lifting trade barriers — will lead to improved livelihoods in the most deprived parts of the Subcontinent. There is an “arc of poverty” that goes east-west from the Sunderban through Sindh, the uninterrupted plain from the Ganga-Brahmaputra delta to where the Indus meets the sea. This swathe is home to more that 300 million of the world’s poorest, with a good majority inhabiting the Indian stretch.

While cultural and historical continuity provide the bedrock for cooperation, it is mutual economic interdependence that builds trust. The India-Sri Lanka Free Trade Agreement points to the course to be taken. All of South Asia must learn from the reality of the historically evolved open land frontier between Nepal and India. One just has to compare the cacophony and energy at the Sunauli-Bhairahawa border with the sanitised crossing at Wagah-Atari — the nicely built arrival hall on the Pakistani side echoes like an abandoned airport terminal.

The South Asian wheel does turn slowly, which is why New Delhi and Islamabad must allow the Lahore-Amritsar relationship to act as a booster.

The two Punjabs, province and state, are each powerful within the individual countries, have suffered more than others during Partition, and are tied through a rich strain of culture including the Sufi lilt, Sikh shrines and shared spoken tongue.

The Punjabi ethos and dynamism will likely provide the most effective path to India-Pakistan rapprochement. That, in turn, will give traction to South Asian regionalism, as extra wealth is created when sovereign Bangladesh interacts with the Indian Northeast and West Bengal, sovereign Nepal with Bihar and Uttar Pradesh, Sindh with Rajasthan and Gujarat.

Breakfast in Lahore

While Punjab-Punjab amity will provide the glue and catalyst, the nuts and bolts even between these two would have to be commerce. Appeals to cultural ties, one has learnt from experience, do not stand a chance against ultranationalism, that too when laced with religious chauvinism. Only a commercial meshing can generate hard-nosed stakeholders among the investors, industrialists, traders and service providers. It is they who will act as buffer in times of geopolitical turbulence, giving backbone to the politicians who need to fight populism and make the tough decisions.

Back in January 2007, Prime Minister Manmohan Singh envisioned a South Asia where he could have breakfast in Amritsar, lunch in Lahore and dinner in Kabul. He has not made much headway in the half-dozen years since, and perhaps we should learn to be patient. At least, the semantic battle has been won, and the opinion-makers of New Delhi no longer purse their lips at references to “South Asia.”

Today, South Block is running a programme on “Environmental governance in South Asia,” and it was Dr. Singh who backed the establishment of the South Asian University and its campus in New Delhi (though the model of a centralised university for the unique, far-flung region seems a bit off). The buzzword among bureaucrats who have worked with the Prime Minister of India in seeking to jump-start regionalism is “connectivity” across the national frontiers, in energy, transport, telephony, tourism and trade.

Historical India had a ruler, back in the early-1500s, who understood all about the advantages of connectivity for the populated expanse between the Brahmaputra and Indus. Sher Shah Suri emerged from Bihar to bequeath historical India its state administration, currency and land revenue systems. He regularised what came to be known as the Grand Trunk Road, from Bengal to Khyber, knowing that commerce has the power to both enrich and bind. Therein lies the inevitability of South Asian regionalism: we have to do what is good for the people at large rather than for the nation states and the capitals.