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Largest democracy or loudest demagoguery?
August 08, 2003
Going through the motions of democracy, as opposed to following its true spirit, seems to be the watchword of Indian prime ministers.
In 1985, Syed Shahabuddin led a shrill chorus of voices announcing the demise of democracy (read 'scrapping minority rights') as a result of the Supreme Court recommending a Uniform Civil Code through its ruling in the Shah Bano case.
Shahabuddin was the spokesperson (albeit self-proclaimed) for 100 million Muslims while the Supreme Court spoke only for itself went Rajiv Gandhi's logic. 100 million versus no more than two dozen? Rajiv Gandhi successfully piloted 'democracy' into its modern avatar by listening to Shahabuddin and ignoring the Supreme Court
In 1996, I K Gujral ignored a second directive from then Supreme Court Justice Kuldip Singh recommending the UCC. A poet himself, Gujral was more impressed with the lyrical laments of a hundred religious leaders over the soporific legal reasoning of the Supreme Court judges.
'Democracy' won a second time when the recommendation was ignored.
The Government of India is at a crossroads after receiving the third directive in 18 years from the Supreme Court on July 24, 2003 recommending a Uniform Civil Code: It is time to choose between democracy and 'democracy.'
Firstly, should the GOI heed a Supreme Court directive?
The GOI needs to think twice before concluding that it can ignore judicial directives. 'Directives' are different from fundamental principles in that the latter are enforceable by the courts while the former constitute mere legal advice.
While the difference is generically true, Justice P N Bhagwati's 1980 decision in Minerva Mills versus Union of India armed the courts with the legal power to enforce Directives (analogous to upholding Fundamental Principles). The legal system is therefore not powerless to enforce its ruling should the need arise.
More than the Supreme Court twisting Parliament's arm in the near future, the politicians' continued apathy and antipathy towards legal directives could well prove to be the Achilles heel of the Indian political system. Democracy is fortified only when the political and legal branches of the government cooperate.
Politicians playing the proverbial bull in the judicial china shop devastate the country. One has to only examine the consequences of Indira Gandhi's proclaiming an Emergency in 1975 with the sole purpose of defying the Allahabad high court decision vacating her parliamentary membership.
In this context, it is important to note the weight accorded to judicial directives in Canada, a fellow Commonwealth nation with a legal system similar to India by virtue of mirroring the British judicial system.
Canada's Supreme Court recently decided in favour of same sex marriages, supporting the decision of three provincial supreme courts. The discomfort of the conservative faction and vocal opposition of many ruling party MPs notwithstanding, Canada's justice minister announced that the government would abide by the ruling. While political filibustering is not impossible, it would be difficult for Parliament to oppose legislation premised on the Supreme Court directive given the justice ministry's stance
The GOI should therefore follow up on the directive and implement a UCC, irrespective of religious leaders raising hell in the name of heaven.
A different aspect of implementing the UCC is the alleged 'erosion of minority rights.'
It is important to quote A K Antony's [chief minister of Kerala] reaction to recent attempts to force his resignation over a religious controversy 'Minorities are better organised and are using this to extract concessions from the majority community.'
The statement best codifies a recurring phenomenon in Indian politics: A small but well organised minority group can hijack democracy through alleging erosion of rights and the consequent creation of a public row, designed to embarrass the ruling party into retaining the status quo.
After creating enough controversy to wreck the UCC recommendation in 1985, Syed Shahabuddin forced the GOI to proscribe Salman Rushdie's Satanic Verses in 1989 despite free speech being a fundamental right. The fact that an Opposition MP like Shahabuddin could successfully twist the arm of a government with a two thirds legislative majority speaks volumes of the power of superior organisation and verbal might being synonymous with right.
The so-called 'erosion of minority rights' masks the corrosion of the democratic process.
It is also important to note that religious minorities like the Christians, Sikhs and Buddhists have not opposed the UCC recommendation. The Christian clergy in Kerala has actually welcomed the initiative; indeed the present directive is the result of Father John Vallamattom's 1997 suit.
The Muslim ulema is alone in its opposition among the minorities.
Should the UCC reflect the wishes of the majority of the minorities or heed the wishes of the minority among the minorities? More than loss of minority rights, it is the fear of losing one's fiefdom that results in the quixotic attacks from the Islamic clergy.
It is also pertinent to point out that since India represents 'unity in diversity,' there needs to exist safeguards protecting unity and diversity. The traditional focus on protecting diversity has been at the expense of laws protecting India's unity.
It would be reasonable that diversity be respected within the bounds of unity. In other words, where there arises a conflict between diversity and unity, the former should yield to the latter.
We need to examine the reaction of the British and French governments to recent interpretations by extremist Muslim clerics about the relationships between Islamic and civil law, and the consequent impact on governmental reaction to terrorism in order to appreciate the aforementioned principle.
When Islamic clerics argued that the English law had to yield to Islamic law when in conflict, the British dismissed the statement like they would the rants of an eccentric holding court at Hyde Park. The French, on the other hand, deported a mullah for making the same pronouncement about French law.
Not surprisingly, an accommodative attitude like the former resulted in the creation of Londonistan while the French have successfully kept terrorism at bay, despite the presence of a sizeable Muslim immigrant community from Northern Africa.
A community allowed to uphold its personal law (read 'preferential treatment') perceives itself to entitlements in other realms, including matters pertaining to national security. Lack of adherence to the UCC is benign by itself; the danger arises through an extension of preferential treatment to other realms, such as national security.
Since the proof is invariably in the pudding, let us examine the impact of a working UCC in an Indian context.
Goa's 'family laws' a carry over from the days of Portuguese rule, embody the same principles as the UCC. The GOI overhauled major portions of law after taking over Goa but left the family laws intact due to requests from all religious communities. Goa is a haven of equality and protection in India in matters pertaining to discrimination on sexual grounds in personal matters.
Despite religious extremists attempting to extend Muslim personal law to Goa in the early 1980s, liberal elements within the community successfully prevented the scrapping of the family laws for the Muslim community. Should the government allow the demagogues to hijack democracy one more time, it runs the realistic risk of adhering to a legal system replete with double standards.
The present government's actions will decide whether India will continue to be the world's largest democracy or degenerate into the world's loudest demagoguery.
S Gopikrishna writes from Toronto on issues pertinent to India and Indians. He welcomes feedback at firstname.lastname@example.orgThe Uniform Civil Code Debate