By P.K.Balachandran
While mature democracies, like those in the West, have accepted pluralism and devolution of power as part of their social and political evolution, new nations emerging from colonialism consider both pluralism and devolution of power as threats to their existence. The US, UK and Canada have accommodated foreign ethnic minorities in high offices. In the UK, which has 3 million Muslims, Shariah law is in vogue among Muslims, and Shariah Councils settle family disputes. Shariah law is accommodated but not legally enforceable.
In contrast, in South Asian countries, ethnic conflicts are pervasive and growing, even 70 years after independence from European powers. There is a constant bid by the majority communities in these countries to enforce uniformity based on their hegemony, a move that is resisted with equal force by the minorities.
New countries face the problem of establishing “nationhood” among populations which are diverse in culture, ethos etc. Here, nationhood is based not just on citizenship per se, but a manifest identification with the culture and religion of the majority. In these countries, majority communities tend to equate their characteristics, their value systems, their social structures and cultural practices with “nationhood” and “nationalism” viewing attributes of the minorities as being discordant, disruptive and a threat to national integrity and security.
Nation-building
After gaining independence from colonial rulers, successor governments have viewed “nation-building” as their foremost task. To them, a key aspect of nation-building has been the creation of one nation out of many. Nationhood is thought to require a large amount of uniformity in ideology, values, culture, social practices and the historical narrative. But these notions clashes with pre-existing patterns marked by diversity in thought, culture and practices.
In colonial times these diversities were either tolerated or attempts were made to suppress them. But come independence, disparate groups deem it their right to safeguard or promote their distinctiveness and not lose their identity. But the majorities consider this assertion ‘insidious’. In some newly emerging countries, there is accommodation while in others there are attempts at road rolling.
Sri Lanka
In Sri Lanka, there is an on-going struggle between Sinhala-Buddhist nationalism and the minorities, especially the Muslims, over the government’s bid to establish a legal system based on the principle “One Country One Law”. The Tamils and Christians were dismayed by the fact that the Presidential Task Force (PTF) established to study and recommend a framework for an Act to bring about “One Country One Law” did not have any Tamil or Christian on it. The Tamils were hurt when the PTF chairman, Ven. Gnanasara Thera, said that Tamils would not be in the main PTF but could find a place in a sub-committee. The minorities see Ven.Gnanasara Thera as the voice of Sinhala-Buddhist chauvinism. The monk has already said that the PTF will be selective in listening to the public, keeping out those with “hidden agendas”. Arbitrariness is writ large on the PTF.
The Muslims will take the brunt. According to Ven.Gnanasara Thera, the PTF will review and seek changes in a wide range of Muslim practices, including marriage and divorce laws, the Qazi court system, the curricula in the Madrassahs, and practices like the wearing of the Burqa. The Muslim issue is further complicated by the fact that their personal laws are religion-based, and as such, are more entrenched than those of the Tamils and Sinhalas, and harder to reform. The Sinhala-Buddhist Kandyan and the Tamil Thesavalamai laws, being secular, are “mutable”. In fact, the two have been amended several times to suit changing conditions. But substantial parts of Muslim law, having a religious base, are a different kettle of fish.
In a 2016 article MHM Firdous says that Muslim personal law was evolved and codified by four Imams in the 8th. and 9th.Centuries based on the Quran and the traditions of the Prophet. Being religion-based, Muslim personal law in Sri Lanka has remained more or less the same over the years. Firdous says that the Mohammedan Code of 1806 was amended in 1929, nearly after 120 years after its enactment. It was then repealed around 20 years later by the Muslim Marriage and Divorce Act of 1951. Subsequently, several efforts were made to reform the Act, in 1959, 1973 and 1992. In 1992, recommendations submitted by the Muslim Women’s Research and Action Forum (MWRAF) were met with outrage by conservative groups. Reform efforts were ultimately shelved.
Further explaining the opposition to reform, Firdous says: “Today the customary laws of various communities in Sri Lanka are seen as a part of self-identity of each group, and increasingly molded as part of their constitutional right of freedom to practice religion. Calls for reform are perceived as efforts of other communities, including the West, to erase their identity.”
According to Firdous, the best way is to let Muslims debate among themselves and seek changes in their laws to be in tune with changing times. Outside interference, however well intentioned, will make the Muslims recoil. However, it is time Muslims realized that Prophet Mohammad had “struggled to build a plural society that upholds the social vision and rule of law.”
Firdous also says that in a pluralistic Sri Lanka, where various faiths and ideology-based communities live side by side – including Buddhists, Christians, Muslims, Hindus, atheists, agnostics and other communities, it is very important to identify common goals based on the common good. The common goals are justice, dignity, and freedom. And these goals could well be achieved through self-reform.
India’s Bid for Uniform Civil Code
India has been pursuing the goal of having a Uniform Civil Code (UCC) since the promulgation of the Indian constitution in 1952. The goal is found in the Directive Principles of State Policy as Art 44. But being in the Directive Principles of State Policy, which are only guidelines, the Uniform Civil Code is not law and cannot be enforced in a court of law. But it still remains a goal and courts and governments have periodically called for it. However, the issue is routinely side-tracked and forgotten, though only to be revived again.
A Uniform Civil Code is hard to establish in India because of its vast diversity. Dr. B.R. Ambedkar, India’s first Law Minister and the man who drafted the Constitution, held that while a uniform code is desirable, its application should be put off till a more suitable time comes.
But the Law Commission totally rejected the Uniform Civil Code idea in its 2018 report. It said that it “is neither necessary nor desirable at this stage”. The reason it cited was that a diverse country like India has to have separate laws to respect the needs of all its people. Bringing uniformity would actually serve to complicate matters more than simplify them, the Commission said.
However, the ruling Bharatiya Janata Party (BJP), which had been on a winning streak since 2014, is a strong votary of a Uniform Civil Code as it believes in national cultural uniformity. The Narendra Modi government banned the “Triple Talaq” practice by which a Muslim man could divorce his wife by simply saying “Talaq, Talaq, Talaq” thrice in quick succession.
Interestingly, there is one State in India which already has a Uniform Civil Law, and that is Goa. Under Portuguese rule all communities in Goa, including Hindus, Muslims and Christians, were governed by the same law for marriage, divorce and succession called the Portuguese Civil Code of 1867. When Goa merged with India in 1961, the State government decided to continue with the Portuguese Code. That system is still in force.
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