Secularism or Politics of Appeasement?

A few weeks ago, I read this comment by Natwar Singh which he made during a recent speech. “Secularism in Western intellectual tradition has a clearly non-religious connotation while the Indian understanding, in contrast, translates into equal respect for all religions”

It set me thinking. Do we really treat every religion equally – even if we were to agree to this self-serving interpretation? How then can we justify the Sharia courts, the Haj subsidies and reservations for Muslims? This prompted the background research which I have summarised below.

Sharia (Shariat)
When the Constitution was adopted in 1950, laws related to marriage and divorce, infants, minors, adoption etc. (in short “personal laws”) came under the concurrent list i.e. became a subject on which both Parliament as well as State Legislatures can create laws.

Subsequent to this, while the personal laws of Hindus were substantially codified under the various Acts in the ’50s (Hindu Marriage Act, Family Act, Hindu Adoptions and Maintenance Act etc) and also extended to Buddhists, Jains and Sikhs, the Muslims continue to be governed by the Muslim Personal Law (Shariat) Application Act, 1937 (The only exception to this is the Muslim Women (Protection of Rights on Divorce) Act, 1986 which was done more out of political necessity and expediency than anything else).

Worse, the apex body in this matter, the All India Muslim Personal Law Board is a self-appointed, extra-judicial organisation with no legal basis, constitutional sanctity or political legitimacy. But before I say anything more on this subject, below is a comment by a leading Australian politician re. Sharia laws and their applicability in Australia (which like India is a “secular” country)

“Treasurer Peter Costello, seen as heir apparent to Howard (Australian PM), hinted that some radical clerics could be asked to leave the country if they did not accept that Australia was a secular state and its laws were made by parliament.If those are not your values, if you want a country which has Sharia law or a theocratic state, then Australia is not for you,� he said on national television. “If you can’t agree with parliamentary law, independent courts, democracy, and would prefer Sharia law and have the opportunity to go to another country which practises it, perhaps, then, that’s a better option,” Costello said.

I wonder if our politicians would ever have the gumption to make such a statement.

Leaving that aside, here is just one example of the distortions and perversions in this legal system. From “Battle over India’s marriage age” , a news-story describing the Muslim Law Board’ insistence that the only law which a Muslim is subject to is “Islamic Law”. The context was the case of a girl who had been married while still below the age of 18.

“A conservative Muslim body in India has gone to the High Court to challenge the legal age of marriage, which currently stands at 18.The All-India Muslim Personal Law Board insists that in family matters the country’s Muslims should be subject only to Islamic law, known as Sharia. It maintains that it is supported by a 1937 act upholding Muslims’ right to be guided by this law.The family are insisting in the High Court that Muslims are entitled to follow Islamic Sharia law. They say this means allowing weddings any time after puberty, which comes earlier for most girls than boys”

This is what the girl’s father-in-law had to say about the marriage:
“Women are like creeper plants that latch onto any tree they find – whether it’s a good tree or a bad tree. Once they get to puberty they are always in danger of falling into bad ways.” (sic)

The article also mentioned, “In Barkas, a part of old Hyderabad, it is men who have traditionally been the predators. In the closely clustered houses, Arabs regularly fly in from abroad and, taking advantage of customary law, marry very young Muslim girls. But often, after a few weeks, they leave and the girl soon gets divorce papers in the post”.

In case you are wondering what part of Quran or which Islamic beliefs sanction this, have a look at the link http://www.freemuslims.org/document.php?id=41 which includes some truly repulsive examples of Sharia quoted from some of the most authoritative sources, including this:

20. A man can marry a woman for a fixed time, from few hours to several years (Mu’ta Marriage, – Sharia of Shia sect.)

This is the law under which the sheikhs and the amirs from Middle East come to India to marry young girls (in some cases barely in their teens). Needless to say there is no provision under the Sharia laws for financial compensation or support for these women (or the children born to them) when the sheikhs get bored of them.

The main point though is not what the Sharia prescribes and proscribes -  the real issue is that why and on what basis can we allow a community to dictate its own parallel judicial system?

Before someone jumps and says that the Hindus and the Christians too have their set of personal laws it needs to be borne in mind that there is a big difference in having personal laws and the Muslims having their own system outside the purview of the laws of the land to interpret their personal laws. To quote Ranjeev Dubey, (“A parallel Judiciary“):

“Observe that there is a huge difference between people of a religion being governed by their personal laws on the one hand, and people of a religion being entitled to set up their own court outside the general court system of the land to administer these personal laws.Indian courts apply many non-codified traditional, religious, regional and tribal laws to its subjects: special religious courts have not been a part of the equation. Why should it be different for one particular community? And since we seem to be confronted with a fait accompli, exactly where do these mullahs and “boards” and “bodies” get their “powers”?

From what I can make out from their website, the All India Muslim Personal Law Board is self appointed. It has neither legal sanctity nor official approval. By its own admission, it was established in 1972 – at a time when the Government of India was trying to subvert shariah law applicable to Indian Muslims through parallel legislation. When Union law minister H.R. Gokhle (sic) introduced the Adoption Bill in Parliament, the ulema screamed blue murder, decrying the Bill as an attempt to dilute “the separate identity of Indian Muslims2. The Board was again at the forefront of the violent protest against the Supreme Court’s judgment ordering maintenance for Shah Bano, an indigent old woman thrown out of her home by her husband.

The Board has consistently insisted that “sharia” is beyond the reach of Indian courts: that right belongs to “sharia courts” alone. Quite under the radar screen, the Board has established “sharia courts” in Gujarat, Bihar, Uttar Pradesh, Assam and Orissa. The rest of us are, of course, looking away”

Finally, here’s Kanchan Gupta in a recent article on this subject on Rediff, “Secular? That’s a laugh” (9th May ’05)

Mentioning the “Sharia Courts” set up by “All-India Muslim Personal Law Board (that) are already functioning in Gujarat, Bihar, Uttar Pradesh, Assam and Orissa, he writes, “So, we have a fast-unfolding situation where the All-India Muslim Personal Law Board is setting up sharia courts as a parallel system of justice. By the time authority in secular India wakes up to this reality, the government will be presented with a fait accompli– accept it, or be damned as anti-Muslim.And let there be no doubt: Government will accept the sharia courts lest it upsets India’s progressive, secular activists.”

Need I say more?

Haj Subsidy
First some background. The subsidy traces its origins to the Port Haj Committee Act of 1939 which was formulated by the British government at least partially to appease the increasingly vocal Muslim leadership led by Jinnah. In 1959, Nehru enacted the Haj Committee Act that replaced the Haj Act of ’39 and specifically defined who it would apply to and what would it entail. Thus section 2(b) defines a “pilgrim” as a Muslim proceeding on or returning from pilgrimage to Saudi Arabia, Syria, Iraq, Iran and/or Jordan. Section 14 makes it mandatory to create a Haj Fund to which sums have to be allotted by the Central and State Governments. For reference, see P B Menon’s article in The Hindu, Jan 30, ’01 .

For an eye-opening critique on the Haj subsidy, read Nikhil Patwardhan’s excellent essay titled, “Why India Should Abolish The Haj Subsidy”

Some excerpts below:
“This unjustified policy of having the Indian government pay a “Haj subsidy” to compensate the Indian Muslims for their airfare and related travel expenses for the Haj pilgrimage, was promoted initially by the Congress Party led by Jawaharlal Nehru. The efforts of the Congress bore fruit with the Haj Committee Act of 1959 which outlined the legitimacy of this flawed policy and also predicated the formation of an organizational body led by Muslims for the purpose of fund distribution, called the Central Haj Committee. Over the years, there has never been any such comparable subsidy for ANY OTHER RELIGIOUS group in India. The government spends what can only be termed peanuts in comparison, on special arrangements for Sikhs and Hindus for the Nankana Sahib and Kailash-Mansarovar Yatra, respectively. These arrangements added up to less than 2 Crores last year! In comparison let’ s take a look at the costs which are covered directly through the Indian taxpayer’s money, in order to meet the required amounts for the Haj subsidy sanctioned by the government over the past six years .

..The increase in the subsidized amount rings in at a mind blowing 500 percent!!! The entire state of Orissa has received less as rehabilitation money for the disastrous Cyclone which killed over 30, 000 people this year!

Ironically, as Nikhil points out, the subsidy is probably as “un-Islamic” a measure as can be.  Islamic scriptures are clear on the account that the Haj pilgrimage is an Islamic obligation only for those who can afford the costs involved in its performance. The Haj subsidy itself is violative of the spirit of Haj as it is dispensed by a “secular non-Islamic” form of government. In fact Islamic guides explicitly stipulate that it would be morally inaccurate for Muslims to demand subsidies for Haj even under an Islamic governance.

Obviously this hardly matters when the decision is being made more on the basis of political expediency than anything else.

Even Pakistan, a declared Islamic state, discontinued government subsidies to Haj pilgrims in 1997 following a decision by the Lahore High Court (Justice Tanvir Ahmed) that any expenditure defrayed by the government (in the context of Haj) was contrary to the Shariat and therefore, wrong.

Incidentally while Nehru had strongly objected to (and blocked) spending state funds on the renovation of Somnath, he had no qualms about doling Govt funds to Haj pilgrims. Can there be a more blatant example of sickening hypocrisy?

Although the Hindus also get some subsidy for the Mansarovar Yatra (as some Muslims and their secular apologists are quick to point out), the amount is far less, the scale of the subsidy is at a fraction of what is provided for the Hajjis and most importantly, it is not mandated by Constitution.

By one calculation (see e.g. Arvind Lavakare’s piece on rediff ), the amount is Rs. 13,000 compared to Rs. 20,000 for Muslims. Moreover, the annual number of pilgrims to Mansarovar is a tiny fraction – 500 to 600 in 2001 – compared to more than 120,000 Haj pilgrims in 2001 (of which 70,000 travelled by air, availing the subsidy).

Reservation for Muslims
I am not dwelling on this since I covered this in a recent newsletter. Pl. refer to “Reservation for Muslims”, Issue #9, Jul ’05 at

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Whichever way you define secularism, reservations for specific religious groups, subsidies, separate laws  – all of these go against the grain of this concept. But would any political party dare question this hypocrisy? Or dare to initiate a national debate on secularism and its practice in India?