Dear Delegates,

This file contains additional reading material that would be useful for your research for the

committee. The study guide is merely a reference for your research and should not be your only

source. This reading material will help you get a further insight into the debate surrounding the

agenda. It has not been arranged in any particular order and some of the facts might have been

updated hence do go through them carefully.

Cheers!

Executive Board

Lok Sabha NMUN 2018

CHAPTER VI

JURISTIC OPINIONS ON AFSPA

6.1 The AFSPA Debate

India’s decade long struggle to combat politicized violence in the country,

[emphasis added] has created what one observer has termed as ‘chronic crisis of

national security’ that has become part of the very ‘essence of (India’s) being’1.

Experts are of the opinion that the AFSPA ‘is a crude recrudescence and revival of

British colonial statute and it should not have been re-enacted in the post-colonial

scenario’2. They remarked that while periodic efforts have been made to limit the

use of these [security laws in India] laws, the overall trajectory since

independence has been to maintain the pattern established by the British3.

AFSPA came into public debate during 1980s and this debate gained

momentum when AFSPA was enforced in Jammu and Kashmir in 1990s.

Amnesty International released its first report on AFSPA briefing about

‘Operation Blue Bird’ in 1993, a report on Disappearance, Summary and

Extrajudicial Executions in Manipur4. Resistance against the Act was further high

lightened due to the 12 year hunger strike by Irom Sharmila since 2000.

As discussed earlier, the Act was challenged before the Supreme Court in

1980 on the ground of its constitutionality, legality and legitimacy. The Court held

its first hearing on the petitions only in 1997, after 17 years and passed judgment

within months by upholding its constitutional validity in 19975 and incorporated

an addendum in its judgment, which is a list of ‘Do’s and Don’ts’ while acting

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under AFSPA. These guidelines were issued by Army headquarters from time to

time. In July 2004, public protest against the Act reached an unprecedented

height in Manipur when a female combatant was found dead with wound marks at

her pelvic regions within a few hours of her detention by the armed forces, the

17th Assam Rifles.

As a response to the public outcry, the Government of India formed

‘Committee to Review AFSPA’ which was headed by Justice Jeevan Reddy and

was assigned to review the Act and suggest recommendations. The report was not

made public officially but was leaked to a newspaper, The Hindu in October 2006.

The report speaks about the repeal of the Act along with a suggestion of insertion

of similar provision in the Unlawful Activities Prevention Act (UAPA, hereafter)

as amended in 2004. The Committee in its report observed that ‘the Act for

whatever reason has become a symbol of oppression, an object of hate and an

instrument of discrimination and highhandedness’.j

In 2007, the 2 Administrative Reforms Commission headed by Verappa

Moilly recommended the repeal of the Act as well as making amendment in the

UAPA, similar that of the previous Committee. The Act again came before the

Supreme Court purview through Masooda Parveen case6. In its decision, the

Supreme Court undermined its earlier NPMHR ruling by accepting very weak

arguments from the Central Government excusing the army’s lack of cooperation

with local police forces7.

Later in between 2008 and 2013, AFSPA came under scrutiny during UPR

processes, country visits and reports of Special Rapporteurs 2011-2012, High

Commissioner on Human Rights of UN in 2009, and recently Committee on

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Amendment to Criminal Law, headed by former chief justice J.S. Verma (Verma

Committee onwards) in 2013 on amendment of criminal laws related to sexual

assault.

Observations of different stakeholders on section 4(a) and AFSPA are

presented below to have a holistic view.

6.2 Government of India and other state body observations on AFSPA

Since 2004, government took initiative to review the AFSPA and

established committees. Jeevan Reddy Committee report, Administrative Reform

Commission’s 5th report on ‘Public order’, deals with AFSPA. Reports of these

bodies are discussed below.

6.2.i Jeevan Reddy Committee report, 2006

As mentioned earlier, in the wake of the civil uprising and agitation

launched by 32 civil society groups in Manipur under the umbrella name ‘ Apunba

Lup’ following the death of Manorama Devi on July 11, 2004. Death took place

when she was arrested and taken in the custody of the 17th Assam Rifles. The

Union Home Minister visited Manipur in September 2004 and Prime Minster

visited in November 2004 to review the situation of the state and promised to

make the Act ‘more humane’. Accordingly the Committee to Review the Armed

Forces Special Powers Act (AFSPA), 1958 (Jeevan Reddy Committee) was set up

the Government of India on December 8, 2004 to look into the ‘legal,

constitutional and moral’ aspects of AFSPA. The committee was entrusted to

review the provisions of the AFSPA and to advise the Govt, of India whether -(a)

to amend the provisions of the Act to bring them in consonance with the

obligations of the Govt, towards protection of Human Rights; or (b) to replace the

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Act by a more humane Act. The report8, apart from analysis of the provisions of

the AFSPA, contains specific recommendations.

Though the Jeevan Reddy Committee report is into public domain now

due to media leakage in 2006, the government is yet to decide whether it will

accept its recommendations or not. On August 9, 2011, in a Lok Sabha report,

Minister of State Home Affairs, Mullappally Ramachandran informed that

no final decision has been taken on these recommendations of Justice Jeevan

Reddy Committee in its report submitted on June 6,2005 recommending repeal of

the Act and the suggestion on amending the Unlawful Activities (Prevention) Act,

1967 (UAPA) by inserting a new chapter VI-A in respect of North Eastern States

to provide for provisions contained in AFSPA9.

The proposed amendments and recommendations of the Committee have

drawbacks and lacks precision which are best reflected in Amnesty International

analysis of the report. Commenting on the proposed amendment and

recommendations of the Reddy Committee, Amnesty International observed that

‘if adopted, this recommendation would result in many of the special powers

granted to the armed forces under the AFSPA being maintained under the

proposed amendment, and the strengthening of the UAPA, which itself already

grants governments powers that are either inherently violative of human rights law

and standards or else widely open to abuse’10.

Witnessing the feeling of alienation and discrimination among the people

of north east India, the committee is of the view that a major consequence of the

proposed course would erase the feeling of discrimination and alienation among

the people of the NES as the amended UAP Act would apply to entire India and

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hence the complaint of discrimination would then no longer be valid11. This

recommendation has dangerous consequences what Amnesty termed as ‘the

Committee's recommendation to reintroduce some of the powers of the forces

currently under the AFSPA in the UAPA would simply transfer draconian powers

from one piece of legislation to another and will not change the way those living

in regions where the AFSPA is currently implemented feel, since it is highly likely

that the UAPA will still be applied more heavily in these areas, resulting in the

same ‘feeling of discrimination’12.

Brief analysis of the recommendations is presented here. The Committee

recommended that ‘the Armed Forces (Special Powers) Act, 1958 should be

repealed. Therefore, recommending the continuation of the present Act, with or

without amendments, does not arise’. The Committee also remarked that the Act

is too sketchy, too bold and quite inadequate in several particulars and hence

[emphasis added] the Act, for whatever reason, has become a symbol of

oppression, an object of hate and an instrument of discrimination and

highhandedness. The Committee is of the view that ‘it is highly desirable and

advisable to repeal this Act altogether, without, of course, losing sight of the

overwhelming desire of an overwhelming majority of the region that the Army

should remain (though the Act should go) and for that purpose, an appropriate

legal mechanism has to be devised’. The Committee is of the opinion that

legislative shape must be given to many of the riders contained in clauses 8, 9 and

14 to 21 in para 74 of its judgment (at pages 156 and 157 of the judgment in

NPMHR 1997) including the lists of ‘Dos and Don'ts’ in the instructions issued by

the Army Headquarters from time to time.

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Though the Committee recommended for the repeal of AFSPA but the

subsequent recommendations and suggestions raises certain doubts and questions.

After observing the AFSPA as ‘a symbol of oppression, an object of hate and an

instrument of discrimination and highhandedness’, the Committee continued list

of recommendations and suggested insertion of appropriate provisions in the

Unlawful Activities (Prevention) Act, 196713 with a special clause applicable to

NES.

Another reason for such a recommendation as pointed out by the

Committee is the UAPA is a comprehensive law unlike the AFPSA which deals

only with the operations of the armed forces of the Union in a disturbed area. A

close examination of the recommendations reveal that the Committee actually

talked of transferring the provisions of AFSPA to another legislation and the

recommendation of repealing AFSPA is mere symbolic which is termed by a

lawyer as ‘fake repeal’14.

On the deployment of the armed forces, the Committee recommended

under its proposed addition to the UAPA, a State Government may request the

Central Government to send armed forces of the Union to the state, where it is ‘of

the opinion that on account of the terrorist acts or otherwise, a situation has arisen

where public order cannot be maintained in the State...’ after the request having

been tabled by the state Legislative Assembly for discussion. The Central

Government may then deploy such forces.

However, the Central Government may also send troops to a state of its

own accord, where it believes that the situation warrants such action...15. This will

have dangerous consequences as the Central Government may deploy armed

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forces ignoring the states view and the state may literally come under military rule

without a time limit.

Under AFSPA, the armed forces are deployed ‘in aid to civil

administration’. But the proposed addition to the UAPA overruled this provision

and suggested that, armed forces shall act in aid of civil power and shall, to the

extent feasible and practicable, coordinate their operations with the operations of

the security forces of the State Government. However, the manner in which such

forces shall conduct their operations shall be within the ‘discretion and judgment

of such forces’.

This is worrying as there will be no civil administration control or

accountability for the operations carried out by the armed forces. The committee

also suggested that armed forces can arrest a person but no criminal codes like

IPC, Cr.P.C empowered the armed forces to arrest a person. Under AFSPA, armed

forces can detain and person and hand over to the nearest police station within

least possible delay.

The Committee recommended for creation of a mechanism which is

termed as ‘Grievances Cell’ on the ground that aggrieved people find difficulties

in accessing information about the family members picked up and detained by

armed forces as ‘a large number of cases where those taken away, without

warrants have ‘disappeared’, or ended up dead or badly injured’.. Hence the

suggestion of a ‘mechanism which is transparent, quick and involves authorities

from concerned agencies as well as civil society groups to provide information on

the whereabouts of missing persons within 24 hours’.

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The Committee proposed to set up grievances cells in each district where

armed forces are deployed and the duty of these cells will be to receive complaints

regarding allegations of missing persons or abuse of law by security/armed forces,

make prompt enquiries and furnish information to the complainant. As proposed,

the Grievances Cells will be composed of three persons, namely, a senior member

of the local administration as its chair, a captain of the armed forces/security

forces and a senior member of the local police.

Eminent lawyer Collin Gonsalves commenting on this, said, ‘thus it can be

seen that the Grievance Cells are dominated by the Security Forces and the Police

and have no power to punish at all. All that they can do is enquire into an

allegation and provide information’16. Obviously the grievance cells will not

provide independent and impartial inquiry into the complaints on human rights

violation since security personnels will dominate in the composition of the cells.

Collin Gonsalves again observed, ‘if this Cell is to comprise of the very forces

committing the offence, one can hardly expect anything to come out of these

enquiries. The promise of compensation and prosecution is therefore illusory’11.

What can be concluded from this recommendation is that this mechanism

will not address the issues of impunity that the armed forces are enjoying as the

role of the cells are limited only to furnish information to the aggrieved. Amnesty

International observed that the ‘grievance cell’ has no obligation to pass the

complaints, or the findings of their investigation, to anybody with powers to

prosecute. The section appended to the proposed chapter states that, ‘if on

enquiry, it is found that the allegations are correct, the victim should be suitably

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compensated and the necessary sanction for institution of prosecution and/or a suit

or other proceeding should be granted under S.6 of the Central Act [AFSPA].18’

While deploying the forces under sub-section (3) the Central Government

shall, by a notification published in the Gazette, specifying the State or the part of

the State in which the forces would operate and the period (not exceeding six

months) for which the forces shall operate. At the end of the period so specified,

the Central Government shall review the situation in consultation with the State

Government and check whether the deployment of forces should continue and if it

is to continue for which period.

Thus it is clear that the Committee’s report suffers from drawbacks of

great concern and cannot stop extrajudicial execution as the recommendation to

repeal AFSPA is mere symbolic in the light of the recommendation for

amendment of UAPA and other recommendations.

6.2.ii Second Administrative Reforms Commission report

After Jeevan Reddy Committee 2004, second Administrative Reforms

Commission headed by Verappa Moily recommended for repeal of AFSPA in

2007 in its 5th report on ‘Public order19’. Commission’s observations are similar to

that of Jeevan Reddy Committee. The Commission recommended that the Armed

Forces (Special Powers) Act, 1958 should be repealed. To provide for an enabling

legislation for deployment of Armed Forces of the Union in the North-Eastern

states of the country, the Unlawful Activities (Prevention) Act, 1967 should be

amended by inserting a new Chapter VIA as recommended by the Committee to

Review the Armed Forces (Special Powers) Act,1958. The new Chapter VI A

would apply only to the North-Eastern states.

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The Commission also observed that, ‘the problem of militancy in pockets

of the North East is obviously very complex’ and ‘the ethnicity, diversity,

geography and history of the region demand a comprehensive nation building

approach for resolving the complex issues’ to solve the problem, [emphasis

added]20

6.2.iii Other observations by states/state bodies

The report of the Working Group on Confidence-Building Measures in Jammu

and Kashmir headed by Mohammad Hamid Ansari (2007) recommended repeal of

AFSPA.

Opinions of different State Governments on AFSPA are reflected in the

presentations and submissions by various states before the Jeevan Reddy

Committee. Government of Meghalaya is of the opinion that ‘the Act is not

enforced in the whole of Meghalaya. However, in order to contain the destructive

activities of the ULFA in the neighbouring state of Assam, the Union

governments vide notification no. S.O 916 (E) dated 27-11-1990 declared 20 km

wide belt in the state of Meghalaya bordering Assam as ‘disturbed area’ under

section 3 of AFSPA The above notification has been extended from time to time

by the Government of India after a review of the prevailing situation.

Operationally the state of Meghalaya on its own has never enforced the provisions

of the AFSPA on any part of the state, not even in the areas declared as

‘disturbed’ area by the Government of India’. In 2011, government of Meghalaya

carried out counter insurgency operations in certain parts of Garo Hills and

AFSPA was not applied.

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Government of Assam in its submission stated that ‘the State Govt, feels

that the AFSPA continues to be a critical requirement for augmenting counter

insurgency operations under the ‘Unified Command’21. Arunachal Pradesh, where

the Act is in force in two districts of the state is of the view that ‘the Act should

continue so that the Armed Forces, in exercise of powers provided under the Act,

can deal with insurgency and maintain law and order’.

6.2.iv National Human Rights Commission

National Human Rights Commission has ordered investigation in several

cases of human rights violation by the armed forces and after investigation the

Commission recommended for compensation too. In its latest report submitted to

the UN Human Right Council for India’s second Universal Periodic Review 2012,

the commission observed that ‘the Armed Forces Special Powers Act remains in

force in Jammu & Kashmir and the North-Eastern States, conferring an impunity

that often leads to the violation of human rights. This, despite the fact that India’s

2011 report on the Optional Protocol to the CRC states that ‘India does not face

either international or non-international armed conflict situations’22.

6.2.v India’s National report to UN Human Rights Council under UPR:

India human rights obligation has been judged under UPR23 system at UN

in 2008 and in 2012. During both the review several countries made interventions

and made recommendations that include repeal and review of AFSPA. Enactment

of law against torture, ending impunity, protection of women’s rights and child

rights were other important recommendations24.

During the second cycle of UPR of India, the national report of

Government of India25 addressed the concerns regarding AFSPA. the report

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responded to the concerns arguing that the constitutionality of this Act was upheld

by the highest judicial body in India [in NPMHR 1997] and also has reduced the

rigour of its provisions and laid down an elaborate list of ‘Do’s and Don’ts’ for

army officials while working in disturbed areas. Government of India claimed that

Act is considered necessary to deal with serious terrorist and insurgency/militancy

situation arising in certain parts of the country and uphold the duty of the state to

protect and secure its citizens by providing necessary powers, legal support and

protection to the Armed Forces for carrying out proactive operation against the

terrorists in a highly hostile environment and to as long as deployment of armed

forces is required to maintain peace and normalcy, AFSPA powers are required.

However, it is pertinent to point out that the extension of declaration of ‘disturbed

areas’ is a subject matter of periodic review in consultation with the State

Government and security agencies.

The reported also claimed that the Army maintains Human Rights Cell in

the Army Headquarters established in March 1993 and addresses violations of

human rights in a transparent manner and exemplary punishments are meted out to

those involved.

About the number of complaints and investigation of allegations of human

rights violations, the report pointed out the since January, 1994 until December,

2011, out of 1,429 complaints of human rights excesses received against the

personnel of Army and Central Para Military Forces, 1,412 have been investigated

and 1,332 found false. In 80 cases, where the complaints were found genuine,

stringent punishment has been imposed. 17 cases are under investigation.

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On September 20, 2012, India responded to the 168 recommendations

forwarded by different countries during the UPR session in May 2012. Out of

these 168 recommendation, 67 were accepted those recommendation dealing with

AFSPA were rejected26, however, India’s representative mentioned that UPR is a

continuous process and ‘administrative and legislative measures had been taken to

seek improvement in all aspects of human life27’.

6.2.vi Verma Committee report

Committee on Amendment to Criminal Law, headed by former chief

justice J.S. Verma (Verma Committee) was formed on December 23, 2012 to

suggest amendment for law relating to sexual assault against women. The

Committee recommended for review of the AFSPA and recommended

amendment to Section 6 of the AFSPA. Committee observed that impunity for

systematic or isolated sexual violence in the process of internal security duties is

being legitimised by the AFSPA. Hence the recommended that no sanction under

section 6 of AFSPA shall be required if the person has been accused of

committing an offence under Section 354, Section 354 A, B,C, Section 376 (1),

(2), (3), Section 376 A, B,C,D,E of the Indian Penal Code, 1860. Justice Verma

Commission has recommended that sexual violence against women by members

of the armed forces or uniformed personnel must be brought under the purview of

the ordinary criminal law. Special care must be taken to ensure the safety of

women, who are complainants and witnesses in cases of sexual assault by armed

personnel. The report said, ‘there is an imminent need to review the continuance

of AFSPA and AFSPA-like legal protocols in internal conflict areas, as soon as

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possible. This is necessary for determining the propriety of resorting to this

legislation in the areas concerned’28.

However, Government of India promulgated the Ordinance against Sexual

Assault 2013 on February 3, 2013 rejecting the above recommendation forwarded

by the Verma Commission29.

6.2.vii Planning Commission

The Planning Commission has recommended in its 12th Five Year Plan

document that the Twelfth plan will initiate review of the Armed Forces

Special Powers Act(AFSPA) using a gender lens30. Documentation of the

gendered dimension of violations and needs assessment of women in disturbed

areas presently under AFSPA will be done as per the 12th plan31.

6.3 Observations of Armed Forces and security personnels on AFSPA

Chief of Army Staff General V.K. Singh on Monday came out against any

“selective withdrawal or modification” of the Armed Forces (Special Powers) Act.

The Act enabled the armed forces to retain operational flexibility and disallow

space to terrorists. “If the situation is stable in a particular area, the Army may

restrict operations in such an area as has been the case in Srinagar district.

However, it is important to retain the operational flexibility, so that islands of

terrorist activities do not emerge. The removal or dilution of this ‘enabling legal

provision' is, therefore, not recommended,” Gen. Singh informed the media32.

According to DG, CRPF, New Delhi ‘the Cr.P.C. provides limited

authority to the security forces and if AFSPA was withdrawn the security forces

would not be able to put up the desired resistance due to fear of personal

victimization’. He express his opinion before the Reddy Committee in New Delhi

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on 21.1.2005 informing that the AFSPA had got inbuilt cautionary measures

against its misuse by the security forces besides ‘Do’s & Don't’ laid down by the

Supreme Court of India.

Field examination shows that ‘Do’s and Don’ts’ guidelines remained

cosmetic and never proved effective as evident from the field report presented in

Chapter IV. The armed forces have opposed any change in the current AFSPA

citing reason that any change would have ‘disastrous consequences’ on the fight

against secessionism and insurgency. They also rejected the view that AFSPA

provides unbridled powers to the soldiers.

Former IAF chief Naik is of the opinion that ‘a soldier fighting anywhere

at the request of the government and not voluntarily, must have legal protection.

Otherwise he would be left inefficient to complete the job in which either the

central or the State Government has interest’33. Ex- Assam Rifle chief Lt.

Gen.Yadava said that, ‘the AFSPA is a vital shield for armed forces battling

insurgents. He said, ‘ it is up to the state and centre to enforce or repeal or modify

the Act, but I want to make it clear that it is the state and centre which empower

us with this legislation and AFSPA has been politicized to a large extent’. He also

believes that the AFSPA gives the armed forces legal immunity for what they do,

was an enabling law and not an arbitrary one34.

Assam Rifles DG Lt Gen Rameshwar Roy is of the view that, ‘if there is a

repeal or dilution in the controversial Armed Forces (Special Powers) Act

(AFSPA), security forces will need some kind of powers as they don't have any

administrative backup’35. He believes that ‘no arbitrary power is given to anybody

by this Act and insurgents were 'finding courage' to operate from those places in

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Imphal where the AFSPA is not applicable’36. He mentioned about the powers

vested with Assam Rifles under the Cr.P.C. and AFSPA. He justified the retention

of AFSPA as it was difficult for the Armed Forces to work without any legal

protection. He felt that the words in Section 4(a) 'to the extent of causing death’

could be omitted and the name of the Act may be changed to make it more

acceptable and the guidelines given by the Supreme Court could also be included

in the new legislation. According to the presentation made by Rajiv Agarwal,

Joint Secretary/NE, M.H.A, New Delhi before the Reddy Committee he

mentioned that provisions under Cr.P.C. are not sufficient to deal with the

situation requiring use of armed forces in aid of civil power37.

Intelligence Bureau (IB) revealed in media that extrajudicial executions

took place in Assam in 201138. The former Special Director of the IB said that the

AFSPA virtually dilutes the accountability of the laws of the land and the

extrajudicial killings have increased. He said that according to records available,

in the last three years, the killings by militants have come down but extrajudicial

killings have increased. He pointed out that withdrawal of the AFSPA is vital for

restoration of normalcy in the North East region and that is why the IB had

opposed the extension of the Act for one more year in Assam, as he believes that

the situation in the state improved considerably.

6.4 Reports of violations and civil society observations

There have been reports of violations of human rights under AFSPA and

casualties are often reported in media and various government and non­

government reports. Available statistics on the casualties are as follows:

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Table 1: Insurgency-related gun killings in North East India, 2002-201039

Year Assam Manipur Tripura Nagaland

2002 445 190 175 36

2003 505 198 295 37

2004 354 218 167 58

2005 242 331 73 40

2006 174 285 60 92

2007 201 125 15 59

2008 370 485 28 145

2009 391 416 11 18

2010 130 121 03 03

TOTAL 2,812 2,369 827 488

Table 2: Security situation in North Eastern States during the period 2006 to

201040

Year 2006 2007 2008 2009 2010

Incidents 1366 1489 1561 1297 773

Extremists arrested/

killed/surrendered

3231 2875 4318 3842 3306

SFs killed 76 79 46 42 20

Civilians killed 309 498 466 264 94

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AFSPA 1ms been contested by the civil society and legal experts mainly on

two points that is use of power to ‘the extent of causing death’ under section 4(a)

and requirement of ‘prior sanction for legal proceedings’ under section 6 of

AFSPA. Civil society has reported extensively about the abuse of power and

human rights violation committed by the armed forces using the AFSPA. These

reports41 reflect systematic extrajudicial executions carried by the armed forces

with full immunity.

Civil society resistance against AFSPA began since its enforcement and

gained momentum 1970s when India became party to international human rights

covenants like ICCPR. Naga Peoples Movement for Human Rights (NPMHR) is

one such Civil Rights Movement in Nagaland which was formed in 1978 to

respond to the reports of human rights violations committed by the armed forces.

Similarly, in the context of the North East India, several organizations came into

being like North East Coordination Committee on Human Rights (NECOHR).

When Oinam incident took place in 1987, Civil Rights groups of Manipur came

together and formed the Coordination Committee on Oinam Issue (COCOI).

Likewise in the backdrop of heightened violence in Imphal valley in the 70s and

80s, various likeminded people from different background came together to take

up human rights issues under the banner of Civil Liberties and Human Rights

Organisations (CLAHRO)42. There was also another umbrella organisation called

the Coordination Committee on Human Rights (COHR) consisting of various

communities of Manipur, like Kukis, Meiteis and Nagas etc. and jointly defended

the civil population of Manipur from the excessiveness of the Security forces.

Human Rights Alert (HRA) and others like Apunba Lup came into being in

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Manipur. Women’s groups called Meira Paibis (meaning Torch Bearers) were

active in responding to human rights violations since 1980s.

People’s Committee for Human Rights and Civil Liberties was formed in

Assam in 1977 in order to provide legal aid to those who were held under

Preventive Detention Act. This organization became non-functional after the

election in 197943 but then Citizen’s Civil Liberties Association (CCLA) came

into being in the same year. In 1984, People’s Union for Civil Liberties (PUCL)

Assam branch was established and together with CCLA started responding against

the atrocities committed by the security forces and police44. Manab Adhikar

Sangram Samiti (MASS) was formed in 1990s in Assam and responded to

incidents of human rights violations. On December 10, 1995, 12 human rights

organizations from all over north east India formed North East Coordination

Committee of Human Rights (NECCHR).

Observations by the prominent civil society organizations working on

human rights are reproduced below.

South Asia Human Rights Documentation Centre (SAHRDC), a Delhi

based organisation observed that Articles 32 and 226 of the Constitution [Indian

constitution] empower the Supreme Court and High Courts respectively to direct

compensation for fundamental rights violations committed by government

officials. However, the Supreme Court has significantly restricted the ability of

victims or their families to obtain compensation, and has essentially prevented

individuals from suing the state or Central Governments in tort for abuses

committed by police or security forces (N. Nagendra Rao vs. State of AP, 1994

AIR 266345). Criticizing the AFSPA 1958 as the license to shoot and kill and

267

citizen merely on suspicion, SAHRDC observes, ‘these provisions give a broad

license to extrajudicially execute innocent and suspected persons under the

disguise of maintaining law and order. It violates every norm of civilized

society’46.

Human Rights Watch (HRW) a prominent international human rights

organization observed that ‘This culture of impunity, fostered both by a lack of

political will and by laws shielding the perpetrators, has led to an atmosphere

where security forces believe they can get away with the most serious crimes

without the threat of punishment’47. HRW is of the opinion that ‘the problems are

systemic and require systemic changes in law, policy, and practice’48.

Asian Centre for Human Rights (ACHR), in its representation before the

Jeevan Reddy committee hearing stated that ‘the AFSPA unlike many other

draconian laws such as the Unlawful Activities (Prevention) Act of 1967 , doesn’t

define any crime’. ACHR argued that AFSPA gives special powers to the armed

forces to be the judge and jury and take measures which amount to awarding

heavier penalty including taking away the right to life as the Cr.P.C nowhere

gives the power to shoot even to the causing death but stresses on ‘as little force

and as little injury to person and property’ to disperse an unlawful assembly. Also

under section 143 of the IPC, ‘a member of an unlawful assembly shall be

punished with imprisonment of wither description for a term which may extend to

six months or with fine or with both’. ACHR is of the opinion that under section 4

(a) of AFSPA non-commissioned officers can make their own judgment about

such an ‘unlawful assembly’ and take measures including to shoot even to the

causing of death - a heavier penalty by any yardstick49. ACHR is of the opinion

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that ‘the AFSPA has not been able to resolve a single insurgency problem since its

adoption in 1958. When the AFSPA was imposed in Manipur in 1980, there were

four armed opposition groups. Today, there are over two dozen armed opposition

groups’50.

World Organisation Against Torture (OMCT) in its report on India under

UPR in 2007 reported that during the parliamentary session held from July 24 to

August 25, 2006, the Lok Sabha (lower chamber of Parliament), followed by the

Rajya Sabha (Council of States), amended the 1993 Protection of Human Rights

Act (PHRA) that set up the Indian National Human Rights Commission (NHRC).

Unfortunately, while the National Human Rights Commission (NHRC) is now

able to visit prisons without prior announcement, it is still not allowed to visit

detention places used by the army and the paramilitary forces, or to investigate the

existence of illegal detention places in states such as Jammu and Kashmir. In this

regard, impunity of officials and members of the security forces perpetrating

human rights violations remains a critical issue’51.

Amnesty International, prime international human rights watch dog, has

often reported about the abuses carried out under AFSPA. Amnesty brought out

an extensive documentation and report on human rights abuses in Oinam

Massacre1987 and since then it has constantly urged the Government of India to

repeal AFSPA In a report published by Amnesty after the leakage of the Reddy

Committee report in 200652, Amnesty appealed for the repeal of AFSPA and

urged to take measures to protect the civilian population from violent crimes,

including acts committed by armed groups, and prosecute those responsible for

such attacks within the framework of criminal law and in conformity with

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international human rights law and standards; to ensure that law enforcement

personnel, including armed forces deployed for law enforcement purposes, respect

the standards set out in the UN Code of Conduct for Law Enforcement Officials,

and the UN Basic Principles on the Use of Force and Firearms by Law

Enforcement Officials; to amend Section 19 of the Protection of Human Rights

Act which prohibits the NHRC and state Human Rights Commissions from

independently investigating allegations of human rights violations by members of

the armed or paramilitary forces.

In June 2005, Amnesty launched a campaign to repeal AFSPA stating that

‘the AFSPA’s provisions enable security forces to arrest people without warrant

and to shoot to kill even in circumstances where they are not at imminent risk’.

The campaign noted that ‘the AFSPA has facilitated grave human rights abuses,

including extrajudicial execution, disappearance, rape and torture...Between 1992

and 2004 a reported 12,000 civilians have died in northeastern India as a result of

such violence. And in Jammu and Kashmir, it is widely believed that some 40,000

people have died since the rise of militancy in 1989’53.

In its submission to the Human Rights Council for second cycle of

universal periodic review of India in 2012, Amnesty International repeated the

same concerns that the AFSPA granted security forces, in specified areas of armed

insurgency, powers to shoot to kill in situations where they were not necessarily at

imminent risk54.

Working Group on Human Rights in India and UN (WGHR) stated that

enforced disappearances and extrajudicial killings remained entrenched in conflict

areas, reinforced by extraordinary powers of arrest, detention and immunity

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available to the security forces55. In Manipur, 789 extrajudicial executions were

documented between 2007 and 201056.

6.5 Observation of International Treaty Bodies on AFSPA

The international treaty bodies established under different UN treaties

where Government of India is a party reviewed the AFSPA and expressed their

concerns over the dependence of this law for decades. These bodies are CERD

Committee (May 2007) CEDAW Committee (February 2007 and February 2004),

Human Rights Committee recommendations (August 1997).57

The HR Committee, CEDAW and CERD raised particular concerns about

the AFSPA at the UN in 2007. CERD and CEDAW also referred to the report of

the Committee to Review the Armed Forces (Special Powers) Act (1958) or

Jeevan Reddy Committee set up by the Ministry of Home Affairs, which

recommended the repeal of this Act58.

As already pointed out earlier, Human Rights Committee59, the monitoring

body under ICCPR, 1977 while reviewing Government of India’s third periodic

report regretted that ‘some parts of India have remained subject to declaration as

disturbed areas over many years- for example, the AFSPA has been applied

throughout Manipur since 1980 and in some areas of that state for much longer

and that, in these areas, the Slate party is in effect using emergency powers

without resorting to article 4, paragraph 3, of the Covenant’60.

The HR Committee remained concerned at the continuing reliance on

special powers under legislation such as the AFSPA, the Public Safety Act and the

National Security Act in areas declared to be disturbed and resulted serious human

rights violations, in particular with respect to articles 6, 7, 9 and 14 of the

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Covenant, committed by security and armed forces acting under these laws as well

as by paramilitary and insurgent groups. It emphasized that terrorism should be

fought with means that are compatible with the Covenant.61

The HR Committee expressed concern about the incidence of custodial

deaths, rape and torture. The Committee recommended that the application of

‘these emergency powers be closely monitored so as to ensure its strict

compliance with the provisions of the Covenant.’ The Committee endorsed the

views of the National Human Rights Commission that the problems in areas

affected by terrorism and armed insurgency are essentially political in character

and that the approach for resolving such problems must also, essentially be

political and terrorism should be fought with means that are compatible with the

Covenant62.

When hearing India’s second report on its adherence to the ICCPR, the

United Nations Human Rights Committee held that the AFSPA (and other special

legislation in force in India) effectively derogated from the right to life and other

rights in the Covenant. A member of the committee said, ‘these laws greatly

concern me because when we give a person powers and for very subjective

reasons powers to be able to deny the lives of citizens that is far too much power. I

think it is excessive, particularly when that person is immune and can act with

impunity because he or she will not be punished. I am convinced that these laws

are contrary to Article 6 of the Covenant .

The Committee under Convention on Elimination of Racial Discrimination

1965, in its report dated May 5,200764, noted with concern that the State party has

not implemented the recommendations of the Committee to Review the AFSPA to

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repeal the Act. The Committee urged the State party to repeal the AFSPA and to

replace it by a more humane Act in accordance with the recommendations

contained in the 2005 report of the above Review Committee. It also requests the

State party to release the report.

The Committee under Convention on Elimination of all forms of

Discrimination Against Women, 1979, in its observation on the Government of

India’s 2nd and third periodic report65, requested the State party to provide

information on the steps being taken to abolish or reform the AFSPA and to

ensure that investigation and prosecution of acts of violence against women by the

militaiy in disturbed areas and during detention or arrest.

In 2004, Committee on Rights of Child (CRC) expressed concern that the

situation in areas of conflict, particularly Jammu and Kashmir and the north­

eastern States, has seriously affected children. The Committee recommended that

India ensure impartial and thorough investigations in cases of rights violations

against children and the prompt prosecution of those responsible, and provide just

and adequate reparation to the victims.

Towards the end of 2006, the UN Working Group on Enforced or

Involuntary Disappearances noted that there were 325 outstanding cases of

disappearances and that most of the cases reported occurred between 1983 and

2004, in the context of ethnic and religious disturbance in the Punjab and Kashmir

regions. The disappearances allegedly relate to wide powers granted to the

security forces under emergency legislation66. India has signed the International

Convention for the Protection of All Persons from Enforced Disappearance and

yet to ratify.

273

It is alleged that the UN Human Rights Commission was kept in the dark

on the actual situation in the NES by the Government of India, despite repeated

official requests from Leandro Despouy, the then UN Special Rapporteur on

States of Emergencies, who was conducting a study for the Commission67.

However, NGOs have filled in the information gap to some extent. Other

Thematic Special Rapporteurs and the Working Groups of the Commission have,

of late, started commenting on the issue.

Bacre Waly Ndiaye, former Special Rapporteur on Extrajudicial, Summary

or Arbitrary Executions, reported68 , ‘the Special Rapporteur’s attention was

particularly drawn to the reports indicating existence of a pattern of killings in the

State of Manipur. Civilians, including women and children, as well as suspected

members of armed opposition groups are reportedly killed by members of the

armed forces, many of them allegedly deliberately and arbitrarily. The AFSPA

reportedly gives them widespread powers to shoot to kill and protect them from

prosecution for any acts carried out under its provisions. The situation is further

aggravated by the restrictions placed on access to the region by the Government.

The result of this policy is a climate in which security forces are able to use

excessive force with impunity’...

European Parliament adopted a resolution on violence against women in

India on January 16, 2013 and has called on the Indian Parliament to ensure that

the Criminal Law (Amendment) Bill 2012 is amended to criminalise all forms of

sexual assault, both penetrative and non-penetrative, ensuring that any new

punishments are in accordance with international human rights law, and to amend

the law so as to remove legal immunity and procedural barriers when police or

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other security forces are accused of sexual assault or other human rights

violations’69.

6.6 Observation of individuals on AFSPA

Navanethem Pillay, UN High Commissioner for Human Rights appealed

Government of India to abolish AFSPA during her visit to India in March 200970.

On March 23, 2009, she urged India to repeal the AFSPA. She termed the law as

‘dated and colonial-era law that breach contemporary international human rights

standards’71.

The UN Special Rapporteur on Extrajudicial, Arbitrary and Summary

Execution, Philip Alston in his report72 to the Commission on Human Rights

dated March 27, 2006 expressed concern over AFSPA on the ground that it

violates non-derogable provisions of international human rights law as AFSPA

empowers security forces not only to arrest and enter property without warrant but

also gives them power to shoot to kill in circumstances where members of the

security forces are not necessarily at imminent risk.

In March 2012, UN Special Rapporteur on Extrajudicial, Arbitrary and

Summary Execution, Christof Heyns, on invitation by Government of India

visited India on a fact finding mission on the situation of extrajudicial executions

in India and observed,73 ‘the challenges with respect to the protection of the right

to life in the country are still considerable’. He further observed that the evidence

gathered [during his visit] confirmed the use of so-called ‘fake encounters’ in

certain parts of the country. Where this happens, a scene of a shoot-out is created,

in which people who have been targeted are projected as the aggressors who shot

at the police and were then killed in self-defense.

275

He added, ‘moreover, in the north-eastern states, and Jammu and Kashmir,

the armed forces have wide powers to employ lethal force’. He called for the

establishment of a commission of inquiry, consisting of respected lawyers and

other community leaders, to further investigate all aspects of extrajudicial

executions, as a first step to addressing concerns. He also recommended the

immediate repeal of the laws providing for immunity from prosecution of the

police and the armed forces, as well as the ratification of a number of international

treaties, including those related to torture and enforced disappearance. The full

report of his visit will be submitted to the UN Human Rights Council in 2013.

R.S Mushahary, the governor of Meghalaya and former chief of NSG and

BSF is of the opinion that AFSPA is irrelevant, ineffective and must be repealed74.

He believes that ‘the prolonged use of the Act has made it ineffective. There have

been abuses of the Act and it will continue. If it is removed, I think the situation

would not worsen, in fact it will improve’. He suggested that the citizens must not

be alienated and their involvement is required for solving insurgency more

effectively and police needs to be strengthened and reliance on the armed forces

must be reduced for greater cooperation with the citizens in fighting insurgency75.

Prof. Naorem Sanajaoba, a human rights defender was of the opinion that,

‘the problems of northeast have been misconceived as Taw and order’ problems

when in fact they are a consequence of unresolved political questions’76. And like

addicts dependent on a drug, the state and security forces have become so

conditioned by their dependency on this unproclaimed emergency law that they

feel deeply vulnerable without it77.

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Sanjib Baruah, Professor of political science and writer on issues

pertaining to north east India, wrote in his essay, ‘AFSPA: legacy of colonial

constitutionalism’78 observed , ‘While our political class has made its peace with

this legacy, those who have lived under the AFSPA have put up a formidable

challenge. In many parts of Northeast India, as the Jeevan Reddy Committee

discovered, the AFSPA has become ‘a symbol of oppression, an object of hate and

an instrument of discrimination and highhandedness.’ These attitudes towards a

law that is a remnant of ‘the nastier aspects of late British imperialism’ among

those who have had the misfortune of living under it would not have surprised our

freedom fighters’. In his opinion, ‘the AFSPA permits a localized form of

indefinite emergency rule; but since it is not called that it is not subjected to the

limits that democratic constitutionalism seeks to impose on emergencies. The

AFSPA has a legacy of the ‘routinised use of constitutional, emergency-like

executive authority’.79

Sanjoy Hazarika, a member of the Jeevan Reddy committee, made a

personal note along with the report of the Reddy Committee report80. According

to him the gains of the law are extremely moot; its negative impacts have been

overwhelming. He believes that many of the security problems of the region can

be tackled by local police and commando forces, with the assistance of the armed

forces where essential, but the dependence of the states on the army must be

reduced to the minimum and armed forces should be deployed only as a last

resort.

He also observed from the numerous representations from the public as

well as from the army, paramilitary and police have informed the Committee that

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political problems must be addressed politically and not militarily and these must

include the processes of development of participative planning, involving local

traditional groups in the role of self-governance, instead of sheltering behind the

army and other forces. On the issues of immunity of armed forces, Sanjoy

Hazarika, said that no one is above the law, and hence everyone should be treated

as per the law of the land. Though Supreme Court upheld it validity in 1997, it’s

an unjust law and hence unacceptable even if it is constitutionally valid as per the

1997 judgment81’.

Prasant N Choudhury, the then Advocate/Additional Central Govt

Standing Counsel, Guwahati High Court, made a presentation before the

Committee recommending dilution in the Act such as (i) it should not conflict

with constitutional provisions and special laws in force, (ii) Armed Forces be

given pre-induction training, (Hi) the local strengthening of intelligence net-work

and (iv) the power of arrest should vest with the officer of the rank of the Captain

of the Army or Dy. Commandant of the Central Police Organisation. Absolute

immunity provided under Section 6 should be diluted and sanction should be

granted by the Joint Secretary of Home. Ministry/Finance Ministry as is done in

Northern Ireland in terms of Northern Ireland (Emergency Provisions) Act, 1996.

Anil Kamboj, a commentator from Institute for Defence Studies and

Analysis (BDSA), is of the view that special powers [under AFSPA] are essential82

as every country dealing with insurgency or with terrorism has its own laws and

legislations to tackle the menace. Likewise, India has laws to fight insurgency and

terrorism, and has given legal powers to armed forces operating in ‘disturbed’

areas under AFSPA 1958. He is of the opinion that while exercising powers under

278

Section 4(a), the armed forces should use minimum force required for effective

action. This force is to be used against armed militants and since overall, the

situation in Manipur is alarming and to counter this, the armed forces operating in

the state require special powers to support them83. He concluded that ‘You cannot

tie both hands of the security forces and then ask them to fight armed militants’

and ‘the law is not defective, but it is its implementation that has to be managed

properly’84.

Siddarth Vadrajan, an eminent journalist and editor in chief of the

newspaper The Hindu observed, ‘a civilized society expects that the use of deadly

force by the Army must at all times be lawful, necessary and proportionate. Here,

the Act suffers from two infirmities: the requirement of prior sanction for

prosecution contained in Section 6 often comes in the way when questions arise

about the lawfulness of particular actions. Second, AFSPA does not distinguish

between a peaceful gathering of five or more persons (even if held in

contravention of Section 144 of the Criminal Procedure Code and a violent mob.

Firing upon the latter may sometimes be justified by necessity; shooting into a

peaceful assembly would surely fail any test of reasonableness’. He, however, also

noted that ‘the shooting of an unarmed individual, and the killing of a person in

custody, are not acts that are permissible under AFSPA. Force is allowed in order

to arrest a suspect but the fact that the Act authorises the use of ‘necessary’ rather

than ‘deadly’ force in such a circumstance means the tests of necessity and

proportionality must be met’85.

Colonel (retd) Anil Bhat is of the opinion that ‘the proposed amendments

to the AFSPA will greatly reduce the effectiveness in counter-insurgency and

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counter-terrorism operations. If battalion, company and platoon commanders of

units engaged, who have been fearlessly leading from the front in such operations,

start becoming apprehensive about being legally proceeded against for killing

terrorists-mostly externally instigated supported, then we will lose the valuable

cutting edge’86. He believes that the various powers available to the police under

the provisions of the CrPC vis-a-vis those available to Armed Forces under

AFSPA would reveal that the police still enjoy more encompassing and wider

powers relating to arrest, search, seizure, summoning of witnesses, preventive

detention etc than the Armed Forces. According to him adequate checks and

safeguards are built in the AFSPA to prevent the Armed Forces from assuming

sweeping powers as violations of its provisions are liable for legal

action/prosecution and ‘Do’s and Don’ts’ issued by the Army, duly approved by

the Supreme Court are binding on all ranks.

Rajat Rana, of IPCS, pointed out the issue of ‘indifference’ towards

AFSPA as the Judiciary in NPMHR 1997 failed to take note of the documentary

evidence. He wrote, ‘the 'indifference' further resonates in the judgment of the

Apex Court in 1997- Naga People's Movement, of Human Rights v. Union of

India in which the constitutionality of the AFSPA was challenged. During

hearing, the court did not entertain any documentary evidence of individual cases

for illustration of the true picture’87. The North East accounts for a major share of

the complaints against army and para-military forces, 17.5 percent in 2003 and

22.5 percent in 2004 (National Human Rights Commission Report). Further, while

complaints against army and para military forces constitute a negligibly small

fraction, less than 0.5% of the total number of complaints in the country as a

280

whole, they are sizeable in the Northeastern states. Unfortunately, the court did

not look at any documentary evidence, and was completely oblivious towards

India's obligations under international law. While the court has actively endorsed

customary international law and went ahead with trend-setting judicial legislation

in a sexual harassment case, it did not discuss international law anywhere in its

judgment, which was in disregard of India's obligation under the international law.

The UN Human Rights Commission made a specific request to examine the

compatibility of the provisions of the AFSPA with the ICCPR, when the Supreme

Court of India examined the constitutionality of the AFSPA. This was brought to

the notice of the court, but this did not find any mention in the judgment.

Capt (Retd) spoke of FASPA syndrome88. He said that AFSPA couldn’t

simply be removed without addressing the related, causal issue of FASPA-

‘Freedom to Assume Special Powers with Arms’ [which is used by the outfits].

This freedom is now being extensively exercised in the North East and Manipur.

The result of such freedom is that the 60-armed outfits are now operating in the

North East and Manipur claims the highest share of 30 of such organizations. In

consequence we experience groups assuming special powers of taxation

arrest/kidnap/ransom awarding and executing death sentence89. These twin issues,

he says, need to be addressed simultaneously. Failure to address these issues while

insisting on immediate/unconditional removal of AFSPA will mean failure in

fulfilling citizen and government responsibility90. He also has reported that there

is an average of one suicide per week in Assam rifle alone91 because of the stress

and strain of the duties of the armed forces.

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Former Defence Minister Pranab Mukherjee has rejected the withdrawal or

significant dilution of AFSPA on the ground that ‘it is not possible for the armed

forces to function’ in the absence of its enabling provisions92. The presence or

absence of AFSPA has little to do with human rights abuses93. The National

Human Rights Commission data for 2001-2002 custodial deaths occurred in Uttar

Pradesh (186), Maharastra (1460, Bihar (144) and Andhra Pradesh (95), none of

which were under the AFSPA. Manipur saw no custodial deaths in 2001-200294.

Absent the AFSPA or a comparable legislation, which confers necessary powers

of search, seizure, arrest and engages the Army cannot carry out counter­

insurgency operations under law. It is also further argued that the Supreme Court

has upheld constitutionality of AFSPA and its various provisions in 1997 and

most of the misconceptions relating to the AFSPA would be cleared on a reading

of the judgment. The Supreme Court notes that this power is not very different

from the power, which has been conferred on a police officer under section 41

Cr.P.C. Moreover, section 5 of the AFSPA puts a rider to this power, requiring

that any person arrested ‘be made over to the officer in charge of the nearest

police station with the least possibility’.

A researcher observed that ‘in the Indrajit Barm case, the Delhi High

Court found that the state has the duty to assure the protection of rights under

Article 21 to the largest number of people. Couched in the rhetoric of the need to

protect the "greater good", it is clear that the Court did not feel that Article 21 is a

fundamental right for the people of Assam’95. He further interpreted that the Court

stated, "If to save hundred lives one life is put in peril or if a law ensures and

protects the greater social interest then such law will be a wholesome and

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beneficial law although it may infringe the liberty of some individuals." This

directly contradicts Article 14 of the Indian Constitution which guarantees

equality before the law. This article guarantees that ‘the State shall not deny to

any person equality before the law or the equal protection of the laws within the

territory of India.’ The AFSPA is in place in limited parts of India. Since the

people residing in areas declared ‘disturbed’ are denied the protection of the right

to life, denied the protections of the Criminal Procedure Code and prohibited from

seeking judicial redress, they are also denied equality before the law96.

Wajahat Habibullah, Chairperson of National Commission on Minorities,

said the Armed Forces (Special Powers) Act was ‘against democracy and

Constitution’ and its ‘loopholes’ should be removed after discussions with the

Army if the law cannot be withdrawn from troubled areas97.

6.7 To Sum up

While Supreme Court upheld the validity of the Act in 1997, the

subsequent reviews by various authorized bodies like Jeevan Reddy Committee

and Administrative Reform Commission run contrary. These bodies

recommended repeal of AFSPA. While armed forces are of the view that their

capacity to deal with insurgency will be handicapped if their legal protective

shield [read AFSPA] is withdrawn. Civil society and organizations working on the

human rights issues in north east India is constantly are reporting of human rights

violations by the armed forces in the name of countering insurgency.

The process of investigation and prosecution for extrajudicial executions

and other violations under AFSPA remained rare, slow and delayed due to various

reasons including lack of political will and technicalities under section 6 of the

283

Act. This delay resulted into immunity for human rights violations and thus

denied justice to the citizens. The situation proved favourable for the armed

opposition groups as the ‘AFSPA has become an instrument for the insurgent

outfits to derive legitimacy and sympathy for their very existence and ironically

AFSPA serves the interests of the secessionist outfits of the perpetuation of the

current protest movement only enhances their survival’98.

Several UN bodies criticized the deployment of armed forces under

AFSPA and termed the Act as a species of emergency law without resorting to the

state party’s obligation under article 4 of ICCPR. Enforcement of AFSPA is

continuous for last 54 years while the intention of the legislators while passing the

Act was for the application of the Act for a year only. Prolonged imposition

resulted into alienation and a feeling of discrimination among the people of north

east India as observed by the Jeevan Reddy committee. The universal periodic

review carried out under the UN Human Rights Council since 2007 depicts India’s

poor commitment towards its human rights obligations99. As discussed most of

the UN human rights bodies and special rapporteurs recommended the repeal of

AFSPA on the ground of its compatibility with the international human rights

standards set out by treaties like ICCPR.

In 1997 when the United Nations Human Rights Committee questioned the

Attorney General of India to explain the constitutionality and validity of the

AFSPA in terms of Indian constitutional law and international human rights law

like ICCPR, he defended it on the sole ground that it was necessary in order to

prevent the secession of the northeastern states. The Indian government, he

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argued, had a duty to protect the states from internal disturbances as per article

355 and that there was no duty under international law to allow secession100.

As discussed earlier, Human Rights Forum filed a writ petition before the

Supreme Court on 10 October, 1980, challenging the constitutional validity of the

AFSPA and the Supreme Court clearly held its first hearing in 1997, after 17 years

of filing the petition. This prolonged delay in holding the hearing process in the

Supreme Court created a feeling of denial of justice. Moreover Supreme Court

relied on international convention like CEDAW in delivering its judgment in

Vishakha vs. State of Rajasthan101 where Supreme Court has issued detailed

guidelines to combat sexual harassment at workplace in 1997. On the other hand,

in the same year the Supreme Court didnt refer to section 4 of ICCPR while

delivering the judgment of NPMHR 1997 in the same year.

Another general public opinion on AFSPA is that it has become counter­

productive and that the problem of insurgency cannot be solved through military

means alone. General observation is that there were only seven active armed

opposition groups in 1958 while in 2011, the number is grown to seventy groups

in North East India and it signifies the failure of AFSPA102. That’s why scholars

criticize AFSPA citing that ‘behind the continued enforcement of the AFSPA is

nothing else but to systematically execute the policy of genocide in Manipur and

other North Eastern states for achieving complete extermination of the indigenous

people from the land of their birth’103.

Considering the wide spectrum of views on AFSPA, it can be rightly

concluded stake holders like state reviews committees and other similar working

groups, international human rights bodies, national human rights commission,

285

human rights organizations and several eminent individuals are in the favour of

repeal of the Act in a sharp contrast to the perceptions of armed forces and

security personnels. India is a democracy where people’s rule is the supreme and

is exercised through parliamentary democracy. As discussed earlier, Indian

constitution ruled out army rule in the country. Hence, opinion expressed by

armed forces has little relevance and hence deserve to be ignored.

286

Notes and References

1 Kalhan, Anil, et.al, Colonial Continuities, supra

2 Sanajaoba, Naorem, Revisiting Reddy Committee report, supra

Colonial Continuities, op.cit

4 Amnesty International, Operation Bluebird: A Case Study of Torture and

Extrajudicial Executions in Manipur (AI INDEX: ASA 20/17/90), 1993

5 SeeNPMHR, 1997

6 Masooda Parveen vs. Union of India & Others, AIR 2007 SC 1840

<7

SAHRDC, Masooda Parveen: Judicial Review of India’s Special Security Laws

Goes from Bad to Worse, 2007, supra

8 Leaked to media in 2006 and is available at www.thehindu.com, supra

9 Special Correspondent, ‘No decision on withdrawal of AFSPA, says Centre ’,

available at

http://www.assamtribune.com/scripts/detailsnew.asp?id=augl011/at08 as on

August 10,2011.

10 Amnesty International, India briefing, supra

11 Jeevan Reddy Committee report, supra

12 India Briefing op.cit

13 This legislation was amended in 2009 after terrorist attack in Mumbai 2008.

14 Gonsalves, Colin, The Fake Repeal of AFSPA, available on http://www.e-

pao. net/epSubPageExtractor. asp? src=news_section. opi nions. Opinion_on_Killing_

of_Manorama.The_Fake_Repeal_Of_AFSPA as on October 7,2011 and Combat

Law, Volume 5, Issue 5 (November - December 2006)

287

15 Draft Ch. VI, sec. 40 A(l)(a), sec. 40 A(2), sec. 40 A(3) annexed to the Reddy

Committee report.

16Colin Gonsalves, The Fake Repeal of AFSPA, supra

17 ibid

18 Amnesty International, India Briefing, supra

19 5th report of Administration Reform Commission, supra

20 ibid, Page 15 of the report

21 Commissioner & Secretary to the Govt, of Assam (Home and Political

Department).

22 NHRC-India Submission to the UN Human Rights Council for India’s Second

Universal Periodic Review, available at http://nhrc.nic.in/Reports/UPR-

Final%20Report.pdf as on May 5,2012

23 The Universal Periodic Review (UPR) is a unique process which involves a

review of the human rights records of all UN Member States. The UPR is a State-

driven process, under the auspices of the Human Rights Council, which provides

the opportunity for each State to declare what actions they have taken to improve

the human rights situations in their countries and to fulfill their human rights

obligations. More information available at

http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx as on January

25,2013

24 The review of India was held at the 8th meeting on 24 May 2012. The

delegation of India was headed by Goolam E. Vahanvati, Attorney General of

India. At its 13th meeting, held on 30 May 2012, the Working Group adopted the

288

report on India. On 3 May 2012, the Human Rights Council selected the following

group of rapporteurs (troika) to facilitate the review of India: Kuwait, Mauritius

and Mexico. The outcome report is available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G12/151/08/PDF/G1215108.pdf?OpenElement as

on January 25,2013

25 National report submitted in accordance with paragraph 5 of the annex to

Human Rights Council resolution 6/21: India, March 8 , 2012,

A/HRC/WG.6/13/IND/1 , available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G12/l 16/85/PDF/G1211685.pdf?OpenElement as

on January 29,2013

26 India Rejects UN Bodies call to reviews the draconian Act, available at

http://www.pakistankakhudahafiz.com/2012/12/ll/india-rejects-un-bodys-call-

for-review-on-draconian-military-law%E2%80%8F/#.UQ89BOSyAlp, as on

January 20,2013

27 Human Rights Council, September 20,2012 available at

http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=T2553

&LangED=E as on January 4,2013

28 CNN-IBN report, Justice Verma Committee seeks review of Armed Forces

Special Powers Act, the report and text of the report is available at

http://ibnlive.in.com/news/justice-verma-committee-seeks-review-of-armed-

forces-special-powers-act/317379-3.html as on January 23,2013

29Times of India, Pranab Mukherjee signs ordinance on sexual assault, changed

law comes into force, available at

289

http://timesoj5ndia.indiatimes.com/city/delhi/Pranab-Mukheijee-signs-ordmaiice-

on-sexual-assault-changed-law-comes-into-force/articleshow/18319541 .cms as on

February 4,2013•JA

Kalyan Barooah, Justice Verma puts focus back on AFSPA repeal, The Assam

Tribune, January 25,2013

31 ibid

32 K. V. Prasad, "Army Chief not for part use or modification of AFSPA \ available

at http://www.thehindu.com/news/national/articlel081282.ece, as on January 12,

2011.

33 Indo-Asian News Service, Armed forces specialpowers a home ministryproblem:, IAF

ehiefj New Delhi, November 25,2010 available at

http://www.hindustantimes.com/Armed-forces-special-powers-a-home-ministry-

problem-IAF-chief7Article1 -630841 .aspx as on September 7,2011.

34 Prokerela news, Armed forces need AFPSA, says top official, available on

http://www.prokerala.com/news/articles/al71214.html as on September 7,2011

35 CNN-IBN news, Forces need power if AFSPA repealed or diluted: Assam

Rifles, available at

http://ibnlive.in.com/generalnewsfeed/news/forces-need-power-if-afspa-repealed-

or-diluted-assam-rijfles/666792.html as on September 6,2011.

36 ibid

37 Source Jeevan Reddy Committee report, supra

38 R Dutta Choudhury, IB opposed extension of AFSPA in State, The Assam

Tribune, July 12,2012

290

39 Source: South Asia Terrorism Portal and author’s analysis as reflected in

Binaiakshmi Nepram, Gender-Based Violence In Conflict Zones Case Study of

Impact of Ongoing Armed Conflict, Small Arms Proliferation And Women’s

Response In India’s Northeast, available at

http://cequinindia.org/pdf/Special_Reports/GENDER-

BASED%20VIOLENCE%20IN%20CONFLICT%20ZONES%20by%20Binalaks

hmi Nepram.pdf as on October 14,2011

40 ibid

41 SAHRDC, Three Steps Forward, Two Steps Back: The Unlawful Activities

(Prevention) Act, 2004, 2005; ACHR Review, September 17, 2007; KN Saikia

report on secret killings in Assam 2007; INSAF, License To Kill, January 2005;

SAHRDC, ‘Armed Forces Special Powers Act - A study in National Security

tyranny 22 November 1995; Amnesty International reports: Briefing: The Armed

Forces Special Powers Act (AFSPA) Review Committee takes one step forward

and two backwards -Amnesty International, AI Index: ASA 20/025/2005, 9 May

2005; '"India: Torture, rape and deaths in custody’, March 1992, AI Index: ASA

20/06/92; 'India: Rising reports of custodial deaths in Delhi', June 1993, AI

Index: 20/6/93; 'India: Deaths in custody in 1993', June 1994, AI Index: ASA

20/02/94; 'India: Torture and deaths in custody in Jammu and Kashmir', January

1995, AI Index: 20/01/95; 'India, Deaths in custody in 1994', August 1995, AI

Index: 20/18/95; 'India: Analysis of the government's response to reports of

deaths in custody in 1993', October 1995, AI Index: ASA 20/29/95; India:

Analysis of the Government of India's response to Amnesty International's report

291

on torture and deaths in custody in Jammu arui Kashmir, March 1995, AI Index:

ASA 20/05/95; ‘India: Examination of the second period report by the human

rights committee', March 1993, AI Index: ASA 20/05/93; India: Official sanction

for killings in Manipur. AI Index: ASA 20/014/1997; India: If They Are Dead Tell

Us. ‘Disappearances' in Jammu and Kashmir’ 02/03/1999, AI Index: ASA

20/002/1999; India - Persecuted for challenging injustice: Human rights

defenders in India, AI Index: ASA 20/08/00, April 2000; India: Call or repeal or

review of the Armed Forces Special Powers Act, 1958. Amnesty International

Index number: ASA 20/090/2004, 11 August 2004; India: Official sanction for

killings in Manipur, AI Index: ASA 20/014/1997, 1 April 1997; Words Into

Action: Recommendations For The Prevention of Torture in India, January 2001,

AI Index: ASA 20/003/2001; Submission to the Human Rights Committee

concerning the application of the International Covenant on Civil and Political

Rights- Amnesty International, Defending Human Rights in India, available at

http://www.amnesty.org/en /alfrescoasset/ 4de86352-b670-lldc-91ef-

e7bbfd81dfbe/asa200082000en.pdf; India- fate of ‘disappeared’ schoolboy

remains unknown, available at

http://www.amnesty.org/en/alfresco_asset/d6185026-c6da-lldc-9afl-

bld22f3b300e/nws220052000en.pdf; Persecuted for challenging injustice:

Human Rights Defenders in India available at

http://www.amnesty.org/en/alfresco_asset/bOO 174cl -b670-l 1 dc-91 ef-

e7bbfd81dfbe/asa200092000en.pdf; Hidden scandal, secret shame Torture and

ill-treatment of children available at

292

http://www.anmesty.org/en/alfresco_asset/lc3d25fe-a4fe-lldc-a92d-

271514edl33d/act400382000en.pdf; INDIA - Words into action available at

http://www.amnesty.org/en/alfresco_asset/lebe5e3d-a430-lldc-bac9-

0158df32ab50/asa200032001en.pdf; SAHRDC, Prevention of Terrorism

Ordinance 2001: Government Decides to Play Judge and Jury, November 2001;

Committee on Human Rights (COHR), Right to Life in Manipur. A Report,

Manipur, 13 February 1997; Human Rights Features (Voice of the Asia-Pacific

Human Rights Network, HRF, 12 October 2004, available at

http://www.hrdc.net/sahrdc/hrfeatures/HRF106.htm; U.S. Department of State ,

India Country Report on Human Rights Practices for 1997, released by the

Bureau of Democracy, Human Rights, and Labor, January 30, 1998; Human

Rights Alert Newsletters, The AFSPA: Lawless Law Enforcement According to

Law?, Asian Centre for Human Rights, January 21, 2005; Why the AFSPA Must

Go: A Fact Finding Report, Committee for the Repeal of the Armed Forces

(Special) Powers Act, February 2005; Combat Law, License to Kill Armed Forces

(Special Powers) Act. Vol. 2 Issue I. April - May 2003; People's Tribunal on the

Armed Forces (Special Powers) Act, 1958, Human Rights Law Network, Tribunal

Secretariat. Publication forthcoming; National Human Rights Commission,

Annual Reports; Public statement - India: Amnesty International campaigns

against rape and sexual abuse by members of the security forces in Assam and

Manipur, Amnesty International .ASA 20/28/98, 12 November 1998; Amnesty*

International, Manipur: The silencing of youth.

293

http://web.arrmesty.org/library/print/ENGASA200051998; India, Special

‘Security ’ Legislation and Human Rights, A Report of Four Regional Workshops

and a National Conference on ‘Security’ Legislation and Human Rights,

published in December 2002; Amnesty International India, Repression in the

Name of Security: A Compilation of Critiques of Anti-terrorist Legislation in the

US, UK, EU and India, November 2001; ‘An Unnatural Fate: ‘Disappearances’

and impunity in the Indian states of Jammu and Kashmir and Punjab’, December

1993, AI Index: ASA 20/42/93; Where ‘Peacekeepers’ Have Declared War,

National Campaign Committee Against Militarisation and Repeal of the Armed

Forces (Special Powers) Act. April 1997; An Illusion of Justice. Supreme Court

Judgment on the Armed Forces (Special Powers) Act, People’s Union for

Democratic Rights, Delhi, May 1998, Submission to the International Covenant

on Civil and Political Rights Human Rights Committee: Armed Forces (Special

Powers) Act, 1958: A Report on Human Rights Violations in North East India,

Nandita Haksar, Advocate, Supreme Court of India, New York, March 1991; The

Armed Forces (Special Powers) Act - Repressive Law, Manipur Update, Vol.I,

Issue 1, Human Rights Alert; Tailoring Peace, NEN 2005; India: Repeal Armed

Forces Special Powers Act, Human Rights Watch, 2008, available at

http://www.hrw.org/news/2008/08/17/india-repeal-armed-forces-special-powers-

act, Human Rights Watch’s 16-page report, ‘Getting Away With Murder: 50 years

of the Armed Forces Special Powers Act’, available at

294

http://www.hrw.org/legacy/backgrounder/2008/india0808/ as on October 7, 2011;

HRW report ''These Fellows Must Be Eliminated’ on Relentless Violence and

Impunity in Manipur, 2008 ’, available at

http://www.hrw.Org/reports/2008/09/l 5/these-fellows-must-be-eliminated-0 as on

October 7, 2011; iTke Armed Forces (Special Powers) Act, 1958 in Manipur and

other States of the Northeast of India’, Redress, AHRC and HRA publication

August 2011, available on

http://www.redress.org/downloads/AFSPA_final_180811.pdf as on October 7,

2011 and many more .

42 Krome, Neingulo, Misguided or Deliberate Policy: Armed Rebellion and

Political Conflict ’, November 17,2010. This paper was presented in a conference

titled ‘Towards a life with dignity: Confronting the Armed Forces (Special

Powers) Act’, held on November 3-4,2010 at Hotel Classic, Imphal, Manipur.

43 Das, Samir Kumar, ‘Truth and Rights: A study of the violations of rights on the

margins of India ’, published in Man and Society: a Journal of North East Studies,

Volume Vn, Summer 2010, pg 43

44 ibid

45 SAHRDC, 'Impunity for Torture: More of the Same ’ available at

http://www.hrdc.net/sahrdc/hrfeatures/HRF206.htm as on June 28,2011

46 SARDC, A Study in National Security Tyranny, supra

47 HRW, ‘These fellows must be eliminated2009, supra

48 ibid

49 ACHR, ‘Lawless Law Enforcement according to Law\ 2005, supra

295

50 ACHR Review, Review of AFSPA: Too Little, Too Late, 3 November 2004,

Index: Review/45/2004 as on September 17,2007.

5'Contribution from the World Organisation Against Torture (OMCT) to the

Universal Periodic Review (UPR) Process India, The Philippines, Tunisia,

available at

http://www.omct.Org/files/2007/l 1/6114/omct_contribution_to_upr_indiajphilippi

nes_tunisia.pdf as on October 7,2011

52 Amnesty International, India Briefing, supra

53 Amnesty Protests AFSPA, June 24,2005, available at

http://blogs.law.harvard.edu/jaskaran/2005/08/04/amnesty-intemational-protests-

armed-forces-special-powers-act/ as on October 14,2011

54 Summary of Stakeholders report to UPR available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G12/l 18/60/PDF/G1211860.pdf?OpenElement as

on January 25,2013

55 WGHR, Human Rights in India: An Overview, available at

http://www.wghr.org/pdfW GHR%20UPR%20II%20Report%20(designed).pdf as

on January 5,2013

56 ibid

57 See the Concluding Comments of these bodies available at www.ohchr.org,

www.wcd.nic.in etc

58 Human Rights Council, Working Group on the Universal Periodic Review ,

First session, Geneva, 7-18 April 2008 available at, http://daccess-dds-

ny. un. org/doc/UNDOC/ GEN/ GO8/122/46/PDF/GO812246. pdf?OpenElement

296

59 United Nations Human Rights Committee in its Concluding Observations after

consideration of third periodic report of the Government of India on 4 August

1997. The Committee considered the third periodic report of India

(CCPR/C/76/Add.6) at its 1603rd to 1606th meetings on 24 and 25 July 1997 and

subsequently adopted, at its 1612th meeting (sixtieth session), held on 30 July

1997.

60 Article 4 paragraph (3) of ICCPR: Any State Party to the present Covenant

availing itself of the right of derogation shall immediately inform the other States

Parties to the present Covenant, through the intermediary of the Secretary-General

of the United Nations, of the provisions from which it has derogated and of the

reasons by which it was actuated. A communication shall be made, through the

same intermediary, on the date on which it terminates such derogation.

61 CCPR/C/79/Add. 81, para 18

62 United Nations Human Rights Committee in its Concluding Observations after

consideration of third periodic report of the Government of India on 4 August

1997, CCPR/C/79/Add. 81, available at

http://www. unhchr. ch/tbs/doc. nsf/(Symbol)/CCPR. C. 79. Add. 81. En? OpenDocume

nt as on January 1,2011

63 Jose Aguilar Urbina, member of the 41st Session of the Human Rights

Committee, New York 26/27, March 1991 quoted in "India: Examination of the

second period report by the human rights committee\ as quoted in Amnesty

International’s report, March 1993, AI Index: ASA 20/05/93.

297

64 CERD/C/IND/CO/19, Seventieth session, February 19 - March 9, 2007.

Observation on India was issued on May 5,2007.

65 Thirty-seventh session January 15- February 2, 2007. The Committee

considered the combined second and third periodic reports of India

(CEDAW/C/IND/2-3) at its 761st and 762nd meetings, on January 18, 2007 (see

CEDAW/C/SR.761 and 762). The Committee’s list of issues and questions is

contained in CEDAW/C/IND/Q/3 and India’s responses are contained in

CEDAW/C/IND/Q/3/Add. 1.

66 A/HRC/WG. 6/1 /IND/2, available at http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G08/122/46/PDF/G0812246.pdf?OpenElement as

on October 1,2011

67 Human Rights Alert, The Armed Forces (Special Powers) Act - Repressive Law,

Abstracted from the Manipur Update, Vol.I, Issue 1, As on September 15,2007.

68 [UN document E/CN.4/1998/68/Add. 1 of 19 December 1997 (para. 203)]

69 European Parliament Resolution on Violence against women in India, available

at

http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=P7-

RC-2013-0028&language=EN as on January 26,2013

70 PTI, UN human rights panel chief wants India to abolish AFSPA, available at

http://articles.timesofmdia.indiatimes.eom/2009-03-23/india/28054238_l_afspa-

repeal-kashmir as on January 26,2013

298

Armed Forces Special Powers Act, available at

http://en.wikipedia.org/wilri/Armed_Forces_(Special_Powers)_Act,_1958 as on

January 26,2013

72 E/CN.4/2006/53/Add.l, sixty-second session of Commission on Human Rights

Commission

73 UN, UN expert calls on India to fight impunity for extrajudicial executions,

available on

http://www.un.org/apps/news/story.asp/html/story.asp?NewsID:=41676&Cr=india

&Crl=#.UNQIbuRthFU as on December 20,2012

74 Indian Express, ‘‘AFSPA is ineffective: Meghalaya governor’, available on

http://www.indianexpress.com/news/afspa-is-ineffective-meghalaya-

govemor/535646/ as on October 3, 2011, cAFSPA is irrelevant: Meghalaya

Governor’, Zee News, available on http://mail.zeenews.com/news/state-

news/afspa-is-irrelevant-meghalaya-govemor_600238.html as on October 3,2011.

75 ibid

76 Sanajaoba, Naorem, ‘The AFSPA: An Unproclaimed Emergency and Gross

Injustice supra

77 ibid

78 Seminar (New Delhi), No.615 , (November, 2010), Issue on ‘We the People: A

Symposium on the constitution of India after 60 Years, 1950-2010’ available at

http://www.india-seminar.com/semftame.html as on January 26,2013

79 ibid

80 Annexure XTV of the report

299

Source: Personal interaction81

89 IDSA, Strategic Analysis: Manipur and Armed Forces (Special Power) Act

1958, Volume: 28, Issue: 4, Commentaries, October 2004, available at

http://www.idsa.in/strategicanalysis/ManipurandArmedForcesSpecialPowerActl9

58_akamboj_1004 as on October 14,2011

83 ibid

84 ibid

85 The Hindu, ‘A modest proposal on AFSPA ’, available at

http://www.thehindu.com/opinion/lead/article615837.ece as on June 30,2011.

86 "Why the Armed Forces Special Powers Act is Necessary’, available at

http://www.irgamag.com/?page=issue_20100920_asfpa as on October 3,2011.

87 Rana, Rajat, ‘The Idea of Indifference & Armed Forces Special Powers Act,

1958 ’, IPCS, available at http://www.ipcs.org/article/india/the-idea-of-

indifference-armed-forces-special-powers-act-1958-1670.html as on October 14,

2011.

88Y. Tipnis, Capt (Retd) Ashok . - ‘Remove AFSPA but also retain FASPA ’, IFP,

August 28,2004

89 ibid

90 ibid

91 ibid

92 Sahni,Ajai, ‘By the Law, For Law and Order’, Tehelka, June 24,2006

93 ibid

94 ibid

300

95 Inam, Syed Tazkir, ‘Armed Forces Special Powers Act And Human Rights

Violation’, A Term Paper Submitted to the Rajiv Gandhi National University of

Law, Patiala in Partial Completion of the Requirements for Paper-V of LL.M.

Second Semester available at: http://ssm.com/abstracM681499 as on January 5,

2012.

ibid

97 The Hindustan Times, AFSPA is anti-democracy, Constitution: Habibullah, January 27,

2013 available at http7/vvww.hmckistantimes.com/India-new5/ISfewDeMAFSPA-is^nti-

democracy-Constitution-Habibullah/Articlel-1002446.aspxif/.UQUeH5_xfc.iacdxx)k as on

Januaiy27,2012

98 K, Sanatomba, ‘Beyond AFSPA and the Politics BehindIFP, October 23,2004

99 Universal Periodic Review -India, supra

100 See Sanajaoba, Naorem’s various articles, Sanjib Baruah’s Durable Disorder,

SAHRDC’s -A Study in National Security Tyranny etc supra

101 1997 SC 3011

102 Home Ministry Annual report, 2011

103 See end note 30

301

190

CHAPTER - 6

ARMED FORCES SPECIAL POWER ACT AND HUMAN

RIGHTS

191

CHAPTER - 6

ARMED FORCES SPECIAL POWER ACT AND HUMAN

RIGHTS

Introduction

In the armed forces, a soldier after completing his basic training at the

regimental centre or equivalent takes an oath of allegiance to the Constitution of

India. This is primarily to cater for the security and territorial integrity of the

country. This is also applicable to the officers on being commissioned to their

allotted arm/ service from the respective training academies. It, thereafter,

becomes the moral obligation of the commanding officers of these soldiers and

officers to look after them in all respects during peace and war to include sub –

conventional operations, which have been ongoing since independence. The

government of India caters for the sacrifices which are made by these soldiers

during war at the international boundary. However, things become different when

they are involved in sub –conventional operations which are conducted against the

insurgents, terrorists, undergrounds and anti national elements in varying terrain in

the urban, rural, hills, dense jungles and ravines. The armed forces have to face

these cadres who are well trained and can use the improvised explosive devices

(IED‘s). It, therefore, becomes incumbent on the government to provide protection

to the armed forces personnel so that they can carry out their tasks in good faith

and are not worried about being dragged to the civil courts in the end.

When the army is requested by the state government to operate in aid to

civil authorities or in internal security duties, it is the District Magistrate (DM)

who gives instructions for the deployment and powers to open fire, which are

strictly implemented. The situation is different in a counter insurgency scenario,

where the army is to be employed over a vast area and more so where the writ of

the civil administration is almost non- existent. It is the local population which is

supporting the insurgents cause.

The armed forces are applied in the initial stages of the counter insurgency

so as to provide a secure environment, which can enable the various institutions of

the government to function without any interference. Having done so, the armed

192

forces, thereafter, function in a manner that strengthens the hands of the civil

authorities. The armed forces have been actively engaged for more than five

decades in sub conventional operations, which have brought about successes and

failures. The wide and varied experience has made the armed forces bring about

the requisite changes in approach and methodology to combat sub conventional

threats.

For effective employment of the armed forces in an insurgency

environment, it is imperative that they are given freedom of action such as search,

seizure, arrest and the conduct of follow up operations and should be safeguarded

against motivated investigations and being blamed for the legitimate actions

undertaken in good faith, while conducting operations.

Armed Forces (Special Powers) Act 1958 (AFSPA) -

The AFSPA, 1958 is a law, enacted by the Parliament of India on

September 11, 1958, to provide necessary powers and legal support/protection to

the armed forces for operations against insurgents in a highly hostile

environment.1 With this the armed forces would be able to meet violent internal

situations created by underground militant outfits to further their illegal and

unconstitutional causes. It was promulgated to combat the Naga Insurgency and

thereafter, it was applied to the ―disturbed areas‖ of other states of the North East.

In the1958 version, only the state government had the power to declare an area

disturbed which was modified in 1972, and this power was extended to the Central

Government also. Subsequently, parliament enacted the Armed Forces (Jammu

and Kashmir) Special Powers Act, 1990, effective since July 5, 1990, initially to

areas falling within 20 kilometers of the Line of Control with Rajouri, Poonch,

Anantnag, Baramulla, Budgam, Kupwara, Pulwama and Srinagar districts declared

as disturbed. In August 2001, it was extended to Jammu, Kathua, Udhampur,

Poonch, Rajouri and Doda, when these districts were declared disturbed. 20 out of

the 22 districts in Jammu &Kashmir (J& K) are under the AFSPA since 1990.

During the Punjab problem, the state was brought under the act through the Armed

Forces (Punjab and Chandigarh) Special Powers Act of 1983.

The act empowers the army and central armed police organisations, in

1 mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf

193

particular the Assam Rifles, to shoulder the civil responsibilities while fighting

insurgency. It is pertinent to mention that the police do not come under AFSPA,

but there are enough acts that give it the powers to deal with the any law and order

situation.

The Act and its Provisions –

Section 1 - It is an act to enable certain special powers to be conferred upon

members of the armed forces in disturbed areas in the state of Arunachal Pradesh,

Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.

Section 2 - Definitions - In this act, unless the context otherwise requires -

(a) "Armed forces" means the military forces and the air forces operating as

land forces, and includes any other armed forces of the union so operating.

(b) "Disturbed area" means an area which is for the time being declared-by

notification under 3 to be a disturbed area;

(c) All other words and expressions used herein but not defined, and

defined in the Air Force Act, 1950, or the Army Act, 1950, shall have the

meanings respectively assigned to them in those acts.

Section 3 - Power to declare areas to be disturbed areas -

If, in relation to any state or union territory to which this act extends, the

governor of that state or the administrator of that union territory or the central

government, in either case, is of the opinion that the whole or any part of such

state or union territory, as the case may be, is in such a disturbed or dangerous

condition that the use of armed forces in aid of the civil power is necessary, the

governor of that state or the administrator of that union territory or the central

government, as the case may be, may, by notification in the official gazette,

declare the whole or such part of such state or union territory to be a disturbed

area.

Section 4 - Special powers of the armed forces -

Any commissioned officer, warrant officer, non-commissioned officer or

any other person of equivalent rank in the armed forces may, in a disturbed area-

a) If, he is of opinion that it is necessary so to do for the maintenance

of public order, after giving such due warning as he may consider

necessary fire upon or otherwise use force, even to the causing of

194

death, against any person who is acting in contravention of any law

or order for the time being in force in the disturbed area prohibiting

the assembly of five or more persons or the carrying of weapons or

of things capable of being used as weapons or of fire-arms,

ammunition or explosive substances;

b) If, he is of opinion that it is necessary so to do, destroy any arms

dump, prepared or fortified position or shelter from which armed

attacks are made or are likely to be made or are attempted to be

made, or any structure used as training camp for armed volunteers

or utilised as a hide - out by armed gangs or absconders wanted for

any offence;

c) Arrest, without warrant, any person who has committed a

cognizable offence or against whom a reasonable suspicion exists

that he has committed or is about to commit a cognizable offence

and may use such force as may be necessary to effect the arrest;

d) Enter and search without warrant any premises to make any such

arrest as aforesaid or to recover any person believed to be

wrongfully restrained or confined or any property reasonably

suspected to, be stolen property or any arms, ammunition or

explosive substances believed to be unlawfully kept in such

premises, and may for that purpose use such force as may be

necessary.

Section 5 - Arrested persons to be made over to the police -

Any person arrested and taken into custody under this act shall be made

over to the, officer in charge of the nearest police station with the least possible

delay, together with a report of the circumstances occasioning the arrest.

Section 6 - Protection to persons acting under Act -

No prosecution, suit or other legal proceeding shall be instituted, except

with the previous sanction of the central government, against any person in respect

of anything done or purported to be done in exercise of the powers conferred by

this act.2

2 Ibid.

195

Prosecution is permitted only after sanction of the central government.

Section 6 of the AFSPA is very similar to the Criminal Procedure Code‘s (Cr PC)

Section 45, which disallows arrest of public servants and section 197 provides

impunity against prosecution. While the supreme court has mandated a

government sanction prior to initiating prosecution against police personnel for

excesses or killings committed during the maintenance of law and order, the

applicability of section 45 of the Cr PC is not allowed in J&K, where the Ranbir

Penal Code is applicable and ipso facto the personnel of the armed forces can be

arrested for any perceived excesses.

AFSPA and Supreme Court -

On November 27, 1997 and 17 July 2001, the supreme court extended the

scope of powers vested vide Section 4 and 6 of AFSPA, in the case titled ‗Naga

People‘s Movement of Human Rights vs Union of India‘, to include by

implication, the power to interrogate the person arrested and for the armed forces

to retain the weapons seized during the operations in their own custody rather than

to hand them over to police authorities. The Supreme Court Judgment on Armed

Forces Special Powers Act -Supreme Court of India on Armed Forces (Special

Powers) Act, 1958, Writ Petition (C) Nos. 5328/80, 9229-30/82, Civil Appeals

Nos. 721 to 724 of 1985, 2173-76/1991, 2551/91 and Writ Petition (C) Nos.

13644-45/84 Naga People‘s Movement of Human Rights, etc. - Petitioner vs.

Union of India - Respondent was decided on 27 November 19973 and Writ

Petition No 4198 of 1999 passed on 17 July 2001.4

The apex court has also clarified that the instructions issued by the military

authorities in the form of ‗DOs and DON‘Ts‘ while acting under the AFSPA are to

be treated as binding instructions which are required to be followed by the

members of the armed forces, which are given in the Indian Army‘s doctrine for

sub conventional operations 2006. It is pertinent that a close perusal of the various

provisions available to the police under the provisions of the CrPC vis-à-vis those

available to the armed forces under AFSPA would reveal that the police still

enjoys more encompassing and wider powers relating to arrest, search, seizure,

summoning of witnesses, preventive detention etc than the armed forces. The 3 http://www.pucl.org/Topics/Law/2005/afspa.htm

4 See Annexure N.

196

powers of investigation, in any case, are within the exclusive jurisdiction of the

police only.

Human Rights and Challenges before the Armed Forces -

The ethos of the army in facing the internal challenges has been to uphold

the human dignity, importance to personal values, ensuring fundamental rights and

mitigation of hardship to the public. The environment in which the armed forces

are operating is of extreme provocation, under the hawk eyes of the media and the

ever existing threat of violation of human rights. The armed forces have over the

years have been able to put in place a time tested mechanism which will ensure

that the human rights cases are dealt within a transparent and expeditious manner.

The army headquarters have a human rights cell, with a similar mechanism at the

command and corps level. These cells are responsible to process the allegations

and reports, collecting the relevant data and thereafter analyzing them from the

legal point of view. This results in timely action against any human rights

violations.

In 2005, the philosophy of ‗Iron Fist with Velvet Glove‘ was enunciated,

which emphasized for a humane and people - centric approach, uphold the laws of

the land, deep respect for human rights and minimum use of kinetic means, to

create a secure environment, without causing any collateral damage. It centers on,

truth, justice and transparency. It has been experienced that the use of minimum

force is a well proven lesson. This encompasses that based on the particular

situation, there is a need to have a judicious, prudent, and appropriate force. The

―use of minimum force‖ and ―good faith‖ are the two ethics which the armed

forces are following within the framework of the constitution of India which will

also cater for human rights. To ensure scrupulous respect for human rights,

exhaustive orders on the subject have been promulgated from time to time. These

include5:-

a) Chief of Army‘s Staff‗s (COAS) Ten Commandments promulgated in the

year 1993 and supplemented in 2005.6

b) Do‘s and Don‘ts while acting under the Armed Forces Special Powers Act,

5 Doctrine for Sub Conventional Operations by Headquarters Army Training Command, Shimla,

2006. 6 See Annexure O.

197

1958, based on the directions of the Supreme Court. 7

c) Do‘s and Don‘ts while operating under the code of criminal procedure.8

d) Relevant provisions contained in Aid to Civil Authority 1970.

Armed Forces and Civil Administration -

It clearly elucidates that if the provisions of the AFSPA have to be invoked

with regard to a particular area which has been designated as ‗disturbed area‘, then

the law and order situation in that area had degenerated to such an extent that the

state government was unable to maintain peace and tranquility. Whenever a state

government requests for the deployment of the armed forces owing to the police

not being able to handle the situation and even when the AFSPA is promulgated,

the governance of the state yet remains in the hands of civil administration and not

taken over by the armed forces.

It is only, thereafter, that the armed forces and other central forces can be

tasked to carry out pro active operations against the insurgents/ militants in that

area. These forces will have to play the major role in the security management till

the politico process and socio- economic measures begin to take effect and the

environment in the state is brought under control. It is imperative to understand

that the government gives clear directions to the armed forces for the

implementation of the AFSPA and also they are responsible to give the ‗exit

orders‘. It, thus, becomes an important role of the government to examine the

period of engagement of the armed forces at regular intervals which

commensurate with the situation on the ground and, thereafter, to be reduced by a

workable viable. Therefore, all actions are politically oriented.

The entire state of Manipur (except Imphal municipal area), Nagaland and

Assam, Tirap, Longding and Changlang district of Arunachal Pradesh and 20

kilometers belt in the states of Arunachal Pradesh and Meghalaya having common

border with Assam have been declared ‗disturbed areas‘ under the Armed Forces

(Special Powers) Act, 1958 as amended in 1972. The government of Tripura has

declared the areas under 34 police stations in full and part of the areas under 6

police stations as ‗disturbed area‘.

The entire state of Arunachal Pradesh, Manipur, Mizoram, Nagaland and 7 See Annexure P.

8 See Annexure Q.

198

parts of Sikkim are ―protected areas‖ under foreigners (protected area) order, 1958

issued under section 3 of the foreigners act, 1946 by Ministry of Home Affairs.

Some areas of Sikkim have also been declared ‗restricted area‘ under the

foreigners (restricted areas) order, 1963. In terms of foreigners (protected area)

order, 1958 and foreigners (restricted areas) order, 1963, no foreigner shall enter

into or remain in any protected area/restricted area except under and in accordance

with the permit issued by the central government or any officer authorized by the

central government in this behalf. For promoting tourism in north eastern states,

guidelines regarding relaxation of protected area/restricted area permit have been

issued from time to time by Ministry of Home Affairs. The protected area regime

in the states of Manipur, Mizoram and Nagaland has since been reviewed and the

entire area of the states of Manipur, Mizoram and Nagaland has been excluded

from the protected area regime notified under foreigners (protected area) order,

1958 subject to certain conditions. The state of Arunachal Pradesh continues to be

protected area under foreigners (protected area) order, 1958. In addition, some

areas of Sikkim continue to be protected areas/restricted areas under foreigners

(protected area) order1958 and foreigners (restricted area) order, 1963

respectively.9

Changed Circumstances and AFSPA -

It has been observed that the nature of insurgency has shifted to acts of

terrorism, extortion, coercion of the population giving rise to a situation of internal

disorder. The insurgency has become complex over the years due to external

support in terms of sophisticated weapons, modern communication equipment,

finances, safe sanctuaries across the areas close to the border. The insurgents are

well trained, have garnered support from the local population and are a force to

reckon with. It is under these circumstances that the troops have to operate which

demands a very high degree of operational effectiveness. In doing so, the armed

forces have to be cautious in their operations, to avoid any collateral damage and

loss of innocent life and public/ private property. If there is any breach, the media

is quick to exploit the situation, along with those parties with vested interests. It

has been realized that on most of the occasions, the allegations against the armed

9 Ministry of Home Affairs Annual Report - 2011-2012.

199

forces are false and fabricated.

It is, under these circumstances and environment that the armed forces are

required to operate which is of prolonged time frame, as is the case in north east.

There are provisions required for carrying out the basic functions of administrative

and operations. This is in addition to the responsibility of defending the borders.

There is, thus, a requirement of special laws which offer similar power to the

armed forces like the Cr PC does to the state police forces. The counter insurgency

operations are non- military operations, thus it becomes incumbent on the

leadership to provide the legal wherewithal to all armed forces personnel

employed on such tasks. If the AFSPA is lifted from the designated ‗disturbed

areas‘, then all these areas will become a base for rest and relief of the insurgent

groups. It is from these areas that they will sally out to launch the insurgency

operations.

Jeevan Reddy committee to review the AFSPA, 1958 in the North eastern

Region -

In 2004, Ministry of Home Affairs reviewed the situation in the region

more so after the death of Manorama Devi, fast by Irom Sharmila and the

agitations in Manipur. There was interaction with the state government and the

security / intelligence agencies. There were groups who wanted its revocation,

some wanted repeal and there were others who were in favour of the act.

Accordingly, the central government, set up a 5-member committee (vide Ministry

of Home Affairs Office Order No.11011/97/2004-NE-III dated 19th November,

2004)10 under the chairmanship of Justice B.P. Jeevan Reddy, former judge of the

Supreme Court.

The terms of reference for the committee were "keeping in view the

legitimate concerns of the people of the north eastern region, the need to foster

human rights, keeping in perspective the imperatives of security and maintenance

of public order to review the provisions of the Armed Forces (Special Powers)

Act, 1958 as amended in 1972 and to advise the government of India whether-

a) To amend the provisions of the act to bring them in consonance with the

obligations of the government towards protection of human rights; or 10

www.hindu.com/nic/afa/in NE-Report of the committee to review the armed forces (special

powers) act, 1958, government of India, ministry of home affairs 2005.

200

b) To replace the act by a more humane act.

As per the report, the committee mentions that there is an unlawful

activities (prevention) act (ULP), 1967, already existing for fighting militants/

terrorists/ insurgent organizations, groups and gangs which extends to the whole of

India including the north east. However, in the north east there are two enactments

for the same i.e. AFSPA and ULP. It specifies that the ULP act is a comprehensive

law designed to ban unlawful organizations, to curb terrorist activities and the

funding of terrorism and investigation, trial and punishment of persons indulging

in terrorist acts, unlike the Armed Forces (Special Powers) Act which deals only

with the operations of the armed forces of the union in a disturbed area. However,

there is a lacuna in the act which is of relevance and needs to be considered and

inserted. The ULP act finds the necessity of using the armed forces or para –

military forces to conduct operations and to take steps to fight and curb terrorism

but does not, however, contain any provision specifying their powers, duties and

procedures relevant to their deployment and also does not provide for an internal

mechanism ensuring accountability of such forces with a view to guard against

abuses and excesses by delinquent members of such forces. Therefore, these

provisions should be clear, unambiguous and must specify the powers of the

armed forces/para military forces while acting to curb terrorist/insurgent activities.

Accordingly, the committee recommended the repealing of the AFSPA but also

recommended insertion of appropriate provisions in the Unlawful Activities

(Prevention) Act, 1967 (as amended in the year 2004) instead of suggesting a new

piece of legislation. The draft chapter VI A to be inserted in the ULP act, 1967 on

deployment of the armed forces of the union was finalised.11 As the act is

applicable on an all India jurisdiction, it implies that the armed forces are not

allowed to operate unrestricted throughout the land. It also means that there is a

need for a geographical area which will have to be defined which is spelt out in

Section 3 of AFSPA. It declares the geographical limits of the area where the act is

applicable as ‗disturbed‘. The act would involve doing the same thing under the

garb of another Act. The act in its present form cannot be made applicable to the

armed forces and replace AFSPA.

11

See Annexure R.

201

The Ministry of Home Affairs has categorically said that it would not be

prudent to repeal the AFSPA or withdraw it from the north eastern states, in spite

of the recommendation of the Justice Jeevan Reddy committee, which has

recommended repeal and to amend the ULP act to achieve the purpose. This

decision is also based on the advice of the army, police and other security and

intelligence agencies. This is primarily due to the grim situation which is prevalent

in the north east more so in Manipur, caused by the insurgent groups which are on

the increase in number. It is the constant endeavour of the insurgent groups to

spread fear so that they can continue to extort money and the leaders of such

groups can continue to lead luxurious life in foreign countries. In Manipur, there

are around 1,500 insurgents which are holding a population of 23 lakh to ransom

and keeping them in constant fear. These insurgent groups by taking advantage of

this situation are utilizing the other side of the border (which is beyond the

jurisdiction of the Indian armed forces) for conveniently conducting their

operations of extortions/ kidnapping/ killing/ looting and ambushing the security

forces. It has also been stated by the government that counter-insurgency

operations seldom affected the common man. 12

Public Opinion

The AFSPA has been targeted as a draconian law by various forums,

human rights commissions; insurgent influenced non government organizations

(NGO‘s) and interested parties including people who have never been involved in

insurgency. The public opinion gets influenced by the human rights violations by

the security forces, but what about the violations committed by the insurgents/

militants. During the period of 2005-2011, 373 personnel of the security forces

and 3465 civilians were killed in the North East.13

The public has never realized the situation on the ground when a soldier

has to face the insurgents. The magistrate / police representative is supposed to

accompany him for the operations but they don‘t. So the question is who is

responsible? It is the soldier and for this he needs to be given legal protection. In

an encounter with the insurgents/terrorists /militants a soldier who is facing them

and their fire power, cannot at that time look around for permission to fire. If 12

The Times of India, New Delhi, 6 December 2012. 13

Ministry of Home Affairs, Annual Report, 2011-12.

202

during the encounter he kills the insurgent/ terrorist/ militant, then what wrong has

he done? He cannot be punished for it, thus the need for legal protection.

The provision of fundamental human rights and freedom to every citizen of

the country is provided in the constitution of India, thus if the army is operating

without the AFSPA then it would be in violation of the constitution. Thus, the

AFSPA provides safeguards and immunity to the army personnel operating in the

disturbed areas. There are certain stringent actions which have to be taken by the

army after the conduct of operations to include that the suspects are handed over to

the police with the least delay so that he can be produced in front of the nearest

magistrate within 24 hours of his arrest excluding the time taken for the journey

which can be in variation if it is from remote areas and other documentation such

as apprehension roles, seizure roles etc. are filled and submitted. The act may curb

the civil liberties but are essential for successful counter insurgency

operations.The armed forces have never resorted to intentional violation of the

human rights and if there has been any then that has been by chance and not by

design. These by chance violations have resulted in strong disciplinary actions.

In Manipur, there have been two alleged violations against the AFSPA. On

November 2, 2000 there was the killing of 10 civilians who were waiting at a bus

stand at Malom near Imphal by the security forces on being suspicious of being

insurgents. Since then Irom Sharmila Chanu has been fasting.14 The alleged rape

and killing of Thanjam Manorama on July 11, 2004 by the security forces, who

was suspected to be a cadre of the People‘s Liberation Army (PLA), has been a

reason for the agitations for the withdrawal of the AFSPA from Manipur. The state

government in a response to the protests created a de-notified area from the parts

of Imphal which has a different set of rules of engagement. The state government

acted unilaterally, despite reservations expressed by the central government.

Commenting on the issue, the Prime Minister Manmohan Singh stated that,

―AFSPA was enforced in Manipur by an explicit decision of the government of

Manipur and hence they have a right to modify their decision‖.15

There have been demands of a partial withdrawal of the AFSPA but the

14

Deepti Priya Mehrotra,‖Burning Bright: Irom Sharmila and the Struggle for Peace in Manipur‖,

New Delhi, 2009. 15

―Polity resilient enough to deal with interstate disputes‖, Outlook India, September 4, 2010.

203

question is how proportionate withdrawal can help. In some states in the north

east, there are disturbed areas and the balance of the state is not a disturbed area.

Thus, the AFSPA is affective only in the disturbed area. During the conduct of

counter insurgency operations in a disturbed area, the insurgents who are

unlawful, during a chase enter the area which is not a disturbed area, and then

what should the armed forces that are bounded by law do. The options with the

armed forces will be to abandon the chase or they take action for which there will

be no legal protection. It, thus, becomes a big dilemma for the armed forces. If,

they abandon the chase then there can be the blaming questions of inefficiency,

helping the insurgents to escape and also putting the life in danger of the

informers. In Manipur, the AFSPA has been withdrawn from the municipal area of

Imphal, where the Manipur police and the commandos are operating. Even by

withdrawing the AFSPA, the situation in the area is not conducive for the safety of

the people. There are cases of extortion, kidnapping, killing by the insurgent

groups. The armed forces are helping the police and commandos by giving them

information so that the apprehensions can be made at the behest of the state

government. It, thus, implies that the partial withdrawal from the area in Manipur

has not achieved any success and is, thus, not an option to be exercised. The

Manipur commandos are also now inclined to enforcing back the AFSPA in the

municipal area as it is becoming difficult for them to handle.

The Chief of Army Staff during an interview mentioned that the AFSPA is

an enabling act passed by the government of India for the armed forces to function

in an insurgency environment and undertake counter terrorist operations. It needs

to be appreciated that while being deployed in ‗disturbed areas‘, the army operates

in heightened hostile environment and is faced with well trained and lethally

equipped terrorists outfits. These situations which are akin to war are extra

ordinary and require extraordinary measures to control them. Therefore, if the

army is to be deployed as an instrument of last resort, which indeed should be the

case, it needs to retain ‗operational flexibility‘ to operate decisively under various

contingencies, with requisite legal safeguards. Moreover, the AFSPA does not

impinge on the civil liberties of people; instead it provides the ‗rules of

engagement‘ for our soldiers. The five decades of engagement in counter

204

insurgency operations have yielded wide and varied experience to the Indian

army‘s approach and methodology to combat sub- conventional threats. It

emphasizes a humane and people – centric approach, underscoring the need for

scrupulous upholding of the laws of the land and respect for human rights as also

creating security environment, without causing any collateral damage.16

In an insurgency environment, there cannot be two options that insurgency

has to be put down with a firm hand within the provisions of law and not to be

dictated by the insurgents. The groups will keep on exploiting the sentiments of

the local people and thus reap benefits from such situations. The armed forces

should avoid any tendency to carry out blind operations against insurgents without

specific intelligence/information. In a counter insurgency environment, the soldier

has to face more hardships as compared to when deployed for the primary role. He

has to sanitize the strategic roads every morning in the states to help the civilians

and military convoys to ply on them safely. For this he is deployed from morning

till late evening when the convoys have crossed. In the company operating bases,

the strength of the soldiers is not more that 40-50 as compared to the minimum

requirement of 70 -80.This itself is a big drain on the soldier as it affects his time

for rest vis-a - vis the responsibilities of the company which includes in some

areas, border guarding.

It is pertinent to mention here that the laws given to the armed forces must

be adhered to the clearly laid down procedures for arrest, custody, remand, trial,

investigation and disposal of suspects. These obligations need to be observed in

line with the safeguards for life and liberty. Further, these should not be seen as a

blockage as it furthers the accountability of the state in the democratic system of

the country. The unified commands which have the armed forces, police, and civil

administration under the chief secretary are producing results and they should be

the authority to recommend the withdrawal of the armed forces/AFSPA. Without

the AFSPA, the military will become as dysfunctional as the paramilitary and

police forces. The army‘s overall approach towards human rights is zero tolerance

to human rights violations. It is, therefore, recommended that the AFSPA is either

invoked or completely revoked. There can be no ―in between measures‖. 16

Bikash Sarmah, ―A security Nightmare, But Why‖, Asia Defence News, Vol. VI, Issue1, New

Delhi. January 15, 2011.

205

However, the ultimate decision has to be taken by the political leadership.

The best option is a political settlement which would resolve the core issues that

have fuelled the social unrests, of which insurgency has been the most radical

form. The citizens have to be taken on board and then only the insurgency can be

eliminated. It is incorrect to even think of killing your own people to win a war

against the insurgents.

The armed forces have always followed the directions of the political

authority. If the AFSPA is revoked, the armed forces will not be able to operate in

the specified areas and the state authorities will have to manage the situation with

the resources at their command. Thus, they cannot, in practice be reemployed in a

hurry, even if the state government wants to do the same. The armed forces need

to be given legal protection if they are employed in the disturbed areas.

There are districts in the region which are ‗disturbed areas‘ and have been

earmarked as central police organization (CPOs) districts where the army was

deployed earlier and thereafter taken over by the CPOs. The army does not

conduct operations in these areas. However, the intelligence bases are functioning.

If there are some operations to be launched based on the intelligence inputs, then

the armed forces have to take the CPO‘s on board and incorporated. As the

situation improves, the army can be moved out after an exit strategy has been

worked out by the state government. This will provide a clean image and lower

visibility of the army, thus giving an opportunity to the state armed police and the

CPOs to be effectively employed and ensure smooth transition. This will also help

in ensuring that more space is created for the CPOs to operate in these areas.

However, if the situation gets out of hand, the AFSPA which is already in place

will enable it to quickly render assistance. This is a recommendation which when

executed in a systematic manner in other districts can produce the desired results.

The USA and its allies after the 9/11 have waged a war against terror. In

addition the United Nations Security Council resolutions have also called for

legislative reforms by the countries to combat terror. The member states are bound

by these resolutions. These legislative laws are more stringent than the AFSPA

and also include provisions to track funds and tap the telephones.

civil liberties

august 22, 2009 vol xliv no 34 EPW Economic & Political Weekly8

A G Noorani is a well-known lawyer, scholar and political commentator.

Armed Forces (special Powers) Act: Urgency of review

A G Noorani

The draconian Armed Forces (Special Powers) Act of 1958 is under review in the Ministry of Home Affairs. This review must call for a drastic amendment of Section 4 which confers extreme powers on officers, including to cause death, and it must provide for the constitution of an appellate body to entertain complaints against forces using the AFSPA.

Union Home Minister P Chidam baram is reviewing the Armed Forces (Special Powers) Act (AFSPA), 1958

and will, one hopes, strike a fair balance between citizens’ rights and public order. What needs a review, perhaps even more urgently, is the Supreme Court’s outra-geous judgment upholding its constitu-tional validity (Naga People’s Movement of Human Rights vs Union of India (1998), 2 Supreme Court Cases 109). No other law has incurred the odium this Act has within the country and abroad in United Nations fora, especially in the Human Rights Committee, repeatedly.

It speaks a lot for the Court’s insensiti-vity to citizens’ rights in cases where “national security” is involved – be it on the Terrorist and Disruptive Activities (Preven-tion) (TADA) Act or the Prevention of Terrorist Activities (POTA) Act – that its judgments are short on legal analysis and rich on patriotic rhetoric which are wholly out of place in judicial pronouncements. This ruling is perfunctory to a degree. Can you believe that while considering a statute widely criticised as providing the State’s men in arms with “a licence to kill”, the Court did not even refer to Article 21 of the Constitu-tion which recognises the right to life of every person, citizen or foreigner? Article 21 says “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Since Maneka Gandhi’s case (1978) 1 SCC 248 the Court has consistently ruled that the procedure prescribed by law must be fair and reasonable and the law, in turn, must conform to the other fundamental rights, especially those embodied in Arti-cle 19(1) concerning all the aspects of civil liberties; that “personal liberty” means more than mere absence of physical restraint and “life” means more than mere existence. A remarkable case law grew up based on Article 21 to ensure, inter alia,

instant medical aid, free legal aid to indi-gent persons accused of criminal offence, a right to shelter and to speedy trial pro-tection of ecology, and preservation of f orests, to mention only a few.

Read the entire report of the case, from pages 109 to 158 from the head-notes onwards, and you will not find even a mention, let alone a discussion of Article 21, the one constitutional provision which alone suffices to invalidate the Act.

The issues which the judgment dis-cussed pertained to Parliament’s legisla-tive competence to enact the law, since “public order” is a State subject; the rele-vance of Articles 352 (Emergency) and 356 (President’s Rule), the scope of Parlia-ment’s residuary powers of legislation, declaration of “disturbed area”; violation of the right to equality (Article 14) since Sections 130 and 131 of the Criminal Pro-cedure Code (CRPC) 1973 provide an alter-native and a more reasonable source of power in similar situations; Article 22 on the production of the arrested person before the magistrate, the sanctions’ pro-visions and related issues of construction.

Shockingly, there is not a word about Article 21 in a judgment delivered on 27 November 1997 by which time it had acquired an expanded meaning and high salience in legal discourse. This, in a unanimous judgment – a rarity – delivered by justice S C Agrawal on a bench that comprised the chief justice of India (CJI) J S Verma and three others who became CJIs M M Punchhi, A S Anand, and S P Bharucha.

For aught we know, the point was not raised by any of the distinguished counsel, who appeared in the case. But as far back as on 31 March 1952 the Supreme Court had remarked, also in a unanimous judgment, delivered by CJI Patanjali Sastri, that as regards the funda-mental rights, “this court has been assigned the role of a sentinel on the qui vive” by the Consti tution (State of Madras vs V G Row (1952), SCR 597).

Sections 130 and 131 of the CrPC 1973 are an identical re-enactment of the code of 1898 enacted in the high-noon of British Raj. The colonial rulers were, however, careful to provide protection to any one

civil liberties

Economic & Political Weekly EPW august 22, 2009 vol xliv no 34 9

acting under Sections 130 and 131 by requiring the government’s prior sanction to the prosecution of any policeman or soldier who exercised those powers. There was, of course, no such protection to those personnel in Britain itself. The rulers of independent India readily adopted these provisions.

Sections 130 and 131 of the CrPC read thus:

130. Use of armed forces to disperse assem-bly (1) If any such assembly cannot be other-wise dispersed, and it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.(2) Such magistrate may require any officer in command of any group of person belong-ing to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and con-fine such persons forming part of it as the magistrate may direct, or as it may be neces-sary to arrest and confine in order to dis-perse the assembly or to have them punished according to law.(3) Every such officer of the armed forces shall obey such requisition in such manner, as he thinks fit but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dis-persing the assembly and arresting and detaining such person.131. Power to certain armed force officers to disperse assembly – when the public security is manifestly endangered by any such assem-bly and no Executive Magistrate can be com-municated with, any commissioned or gazet-ted officer of the armed forces under his command, and may arrest and confirm any persons forming part of it, in order to dis-perse such assembly or that they may be punished according to law; but if, while he is acting under this section, it becomes practi-cable for him to communicate with an Exe-cutive Magistrate, he shall do so, and shall thenceforward obey the instructions of the magistrate, as to whether he shall or shall not continue such action (italics of author throughout).

Note the statutory injunction to “use as little force and do as little injury to person and property” as may be consistent with the necessity of the moment (Section 130(3)). Section 130 is the governing provision. Section 131 is ancillary to it.

Contrast this with Section 4 of the AFSPA

(4) Special powers of the armed forces – any commissioned officer, warrant officer, non-commissioned officer or any other

person of equivalent rank in the armed forces may, in a disturbed area – (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider neces-sary fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive s ubstances;(b) If he is of opinion that it is necessary so to do, destroy any arms dump, prepared or forti fied positions or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence.(c) Arrest, without warrant any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest.(d) Enter and search without warrant any premises to make any such arrest as afore-said or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explo-sive substances believed to be unlawfully kept in such premises, and may for that pur-pose use such force as may be necessary.(5) Arrested persons to be made over to the police: Any person arrested and taken into custody under this Act shall be made over to the officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasion-ing the arrest.(6) Protection to persons acting under the Act: No prosecution, suit or other legal pro-ceeding shall be instituted, except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Section 4(a) of the Act is a Statutory obscenity. It occurs in no statute anywhere in any democracy. It has been aptly called a “licence to kill”. Not only does it not enjoin restraint explicitly, but says that the powers may be used “even to the causing of death”. What meaning would this convey to the officer except a laxity, especially since Section 6 protects him for all legal proceedings except with the pre-vious sanction of the central government. Even the warning he delivers will be such

“as he may consider necessary”. The test is subjective. No objective test – “as is necessary” – is prescribed.

Can such a provision as Section 4 of the AFPSA ever stand a fair scrutiny in the light of Article 21 of the Constitution? An analogy is apposite. In Khwaja Ahmad Abbas vs Union of India (AIR 1971 SC 481 (1971), 2 SCJ 242) concerning the validity of film censorship, the Supreme Court upheld the validity of the Cinematograph Act, 1952 only on the express assurance of the government, at the very outset, that it “would set on foot (sic) legislation” to provide for an independent appellate tribunal against the censors’ orders. The aggrieved citizen must have a fair and adequate remedy.

Besides, it said “the real flaw in the scheme of directions (to the censors) is a total absence of any direction which would tend to preserve art and promote it…But Parliament has not legislated enough, nor has the central government filled in the gap (in its censorship code). Neither has separated the artistic and the socially valuable from that which is d eliberately indecent, obscene, horri fying or corrupting. They have not indicated the need of society and the freedom of the individual.”

Section 4(a) of the Act is even more offensive. It ignores the officer’s duty to respect the life of the citizen, omits this vital injunction and contains instead a carte blanche unheard of in any other stat-ute in any other democracy – “even to the causing of death”.

Where did the draftsmen get this from? It would be well worth the while of any scholar to go into the entire process of leg-islation – the tabling of the bill, debates in Parliament and the rest. The South Asia Human Rights Documentation Centre in New Delhi prepared a fine paper on the Act and drew on the debate. Its sister body Asia Pacific Human Rights Network has produced able notes on AFSPA.

Judges tend to quote selectively at times. The judgment refers, with utter irrelevance, to the power to summon the armed forces in aid of civil power con-ferred by the Reserve Forces Act, 1980, in England, to the Queen’s Regulations for the Army and to volume 41 of Halsbury’s Laws of England (Para 15).

civil liberties

august 22, 2009 vol xliv no 34 EPW Economic & Political Weekly10

Had the judges consulted this hoary work more diligently, they would have come across vastly more relevant statutes. The old English doctrine was that the sol-dier is but a citizen in uniform and it is the duty of every citizen to prevent crime. S ection 3(1) of the Criminal Law Act, 1967 says: “Every person may use such force as is reasonable in the circumstances in the p revention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.

Section 117 of the Police and Criminal Evidence Act, 1984 reads:

Where any provision of this Act (a) confers a power on a constable; and (b) does not pro-vide that the power may only be exercised with the consent of some person, other than thana police officer, the officer may use reason able force, if necessary, in the exercise of the power.

Thus, two statutes, 17 years apart, con-tain the same injunction – use only “rea-sonable” force. This is because these Acts enact traditional law which the British also enacted in Section 130 of the CrPC; albeit without the right to sue the soldier or policeman who exceeds his powers.

Comments in a recognised work on Sec-tion 3 of the Act of 1967 are pertinent:

Thus, the use of firearms must be justified in the necessity of the situation and does not become legal by reason of the decision to call in the troops. Indeed, the use of excessive force or the premature use of firearms would render the officer in command and the indi-vidual soldiers personally responsible for death or injuries caused, issues of liability are decided by the criminal or civil courts after the event (A W Bradley and K D Ewing, Constitutional and Administrative Law, Longman, 12th Edition; p 668. They cite in support R vs Clegg (1995) IAC 482).

It goes back to the law settled in the Report of the Committee on the Feather-stone Riots in 1893. The Committee, com-prising two distinguished judges and a member of Parliament, said:

The taking of life can only be justified by the necessity for protecting persons or property against various forces of violent crime or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them…

The question whether, on any occasion, the moment has come for firing upon a mob or rioters, depends, as we have said, on the necessities of the case. Such firing, to be law-ful, must, in the case of a riot like the present, be necessary to stop or prevent such serious and violent crime as we have alluded to; and it must be conducted without recklessness or negligence. When the need is clear, the s oldier’s duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the pur-pose of protecting person and property.

John Widgery sat on a Tribunal to inquire into the violence in Londoncharry in 1972. His report that

Soldiers acting individually are generally required to give warning before opening fire and are subject to other general rules which provide inter alia: (2) Never use more force than the minimum necessary to enable you to carry out your duties. (3) Always first try to handle the situation by other means than opening fire. If you have to fire: (i) Fire only aimed shots (b) Do not fire more rounds than are absolutely necessary to achieve your aim.

Widgery observed: “The injuction to fire only aimed shots is understood by the soldiers as ruling out shooting from the hip – which they in any case regard as inefficient, indeed pointless – except that in a very sudden emergency, requiring split second action, a short from the hip is regarded as permissible if it is as well aimed a shot as the circumstances allow”.

Approving of the dicta in the Report of 1893, an Irish judge ruled in 1938 that “a gun should never be used or used with any specified degree of force if there is any doubt as to the necessity” (R F V Heuston,

Essays in Constitutional Law, Universal Law Publishing Co Private Limited Delhi, Second Edition, p 147).

In a recent case, Kenneth Diplock took full note of the difference between the riots of old and the insurgency situations of today. But it did not drive him to dilute, let alone discard, the vital precondition of reasonableness (A G for Northern Island’s Reference (No 1 of 1975); (1977) A G 105 at 106). By 1977 insurgency in Northern I reland was at its peak. The insurgents were better educated and wielded weap-ons more deadly than the insurgents in the north-east or in Kashmir. Diplock ruled, nonetheless, that a soldier would be liable criminally if the amount of force he had used was not “reasonable in the circumstances”. That was an issue of fact to be decided by the jury.

The Supreme Court laboured hard on this distinction but ignored the fact that the law on reasonable force applies to both situations, rioting and insurgency.

The Central Act makes provision for dealing with a different type of situation where the whole or a part of a State is in a disturbed or dangerous condition and it has not been pos-sible for the civil power of the State to deal with it and it has become necessary to seek the aid of the armed forces of the Union for dealing with the disturbance. Similarly, under Section 131 CrPC a commissioner or gazetted officer of the armed forces has been empowered to deal with an isolated incident where the public security is manifestly endangered by any unlawful assembly. The provisions in Sections 130 and 131 CrPC can-not thus be treated as comparable and ade-quate to deal with the situation requiring the

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civil liberties

Economic & Political Weekly EPW august 22, 2009 vol xliv no 34 11

continuous use of armed forces in aid of the civil power for certain period in a particular area as envisaged by the Central Act and it is not possible to hold that since adequate provisions to deal with the situation requir-ing the use of armed forces in aid of civil power are contrary to Sections 130 and 131 CrPC the conferment of the powers on offic-ers of the armed forces under Section 4 of the Central Aid to deal with a situation of law and order in a State is discriminatory in nature and is violative of Article 14 of the Constitution.

In Kashmir whole houses have been blown up by the army and paramilitary to get at a few militants hiding in them, instead of using other means to flush them out. The Supreme Court upheld this power as well without insisting on the require-ment of reasonableness:

Section 4(b) confers the power to destroy any arms dump, prepared or fortified posi-tion or shelter from which armed attacks are made or are likely to be made or are attempted to be made or any structure used in training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence. It is urged that the said power is very wide in its scope and that apart from destruction of any arms dump, fortified positions, shelters and structures used by armed groups for attacks, it extends to destruction of a struc-ture utilised as a hideout by absconders wanted for any offence and that, to that extent, it is invalid. We do not find any merit in this contention. Absconders wanted for an offence are persons who are evading the legal process. In view of their past activities the possibility of their repeating such activi-ties cannot be excluded and conferment of the power to destroy the structure utilised as a hideout by such absconders in order to control such activities cannot be held to be arbitrary or unreasonable (para 48).

It, likewise, upheld the sanctions provi-sion (paras 52 and 74) on the ground that refusal of sanction to prosecute is open to judicial review. In contrast in Britain an action for damages as well as a criminal prosecution lies against a police officer for assault or false imprisonment. Between 1970 and 1979 as many as 50 officers were convicted of assault.

In 1987 three known IRA personnel were shot by four soldiers while it was thought that they were about to detonate a bomb, to the danger of life, on Gibraltar, a British Colony. The case reached the European Court of Human Rights. Article 2 of the European Convention for the

Protection of Human Rights and Funda-mental Freedoms provides:

(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law: (2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary.(a) in defence of any person from unlawful violence;(b) in order to effect a lawful arrest or to pre-vent the escape of a person lawfully detained;(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Thus, whether it is a case of “quelling a riot or insurrection”, Article 2 lays down that the use of force must be “no more than absolutely necessary”.

The European Court construed Article 2 in the Gibraltar case (McCann vs UK (1995) 21 EHRR 97). By a majority of 10 to 9, the Court held that there had been a breach of Article 2 which, in protecting the right to life, was said to rank as “one of the most fundamental provisions in the Conven-tion”. There was no evidence of “an execu-tion plot at the highest level of command in the Ministry of Defence or in the gov-ernment” although “all four soldiers shot to kill”. On the facts and in the circum-stances the actions of the soldiers did not in themselves give rise to a violation of Article 2. But it was held that the o peration as a whole was controlled and organised in a manner which failed to respect Article 2, and that the information and instructions given to the soldiers ren-dered inevitable the use of legal force in a manner which failed to take adequately into consideration the right to life of the three s uspects.

Having regard

To the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allow-ances for the possibility that their intelli-gence assessments might in some respects, at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court was not persuaded that the killing of the three terrorists consti-tuted the force which was no more than absolutely necessary in defence of persons from unlawful violence.

(Vide also Bradley and Ewing, p 673). The Supreme Court has drawn on the rul-ings of the European Court. This ruling is very relevant to an interpretation of Arti-cle 21 of our Constitution.

It is clear that Section 4 of the AFSPA is manifestly, demonstratively violative of Article 21 of the Constitution.

Two major changes are required in the Act. First is a drastic amendment of Section 4 in the light of these rulings. Second, while it is too much to expect deletion of the sanctions provisions, an independent appellate body should be set up in the Act to entertain complaints against the armed forces or the police when they operate under AFSPA. The draft bill prepared by the Jeevan Reddy Com-mittee to Review the Act as alternative to AFSPA is inadequate.

In Masooda Parveen vs Union of India and Ors (2007) 4 SCC 548, the Supreme Court followed the 1998 case but observed:

We cannot ignore the fact that many in Kashmir who have gone astray are Indian citizens and it is this situation which has led to this incident. We do appreciate that a fight against militancy is more a battle for the minds of such persons, than a victory by force of arms, which is pyrrhic and invaria-bly leads to no permanent solution. We can-not ignore that in this process some unfor-tunate incidents do occur which raise the ire of the civil population, often exacerbat-ing the situation, and the belief of being unduly targeted with a feeling in contrast of the law order machinery that it is often in the dock and called upon to explain the steps that they have taken in the course of what they rightly believe to be the nation’s fight. We, however, believe that the exami-nation of a complaint, and the provisions of an effective redressal, mechanism pre-ferably at the hands of the administration itself, or through a court of law if necessary, is p erhaps one of the most important f eatures in securing a psychological advan-tage. We also understand that in an investi-gation of this kind based only on affidavits, with a hapless and destitute widow in utter despair on the one side and the might of the State on the other, the search for the truth is decidedly unequal and the court must therefore tilt just a little in favour of the victim.

It is another matter that in this very case it did not. But its emphasis on a redressal mechanism is significant. Its preferred acceptance of one “at the hands of the administration itself” vividly reveals its basic outlook.

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The present paper analyses and examines the Armed Forces Special Powers Act (AFSPA) in respect of legal aspects. It first discusses it in terms of domestic law, international humanitarian law (IHL) and human rights law. Given India’s obligations under international human rights instruments going beyond domestic law is necessary in any such discussion. Ensuring complementarity between the Act in its application in armed conflicts and IHL, would contribute towards making the Act more ‘humane’. The second part discusses the Act from security perspectives. In doing so, it reaffirms that respect for human rights and humanitarian law in countering insurgency is of strategic import. In conclusion, it makes some recommendations for the military which will enable it ensure that AFSPA and the IHL complement each other.

Reconciling AFSPA with the Legal Spheres

Focus

Ali Ahmed*

* Colonel Ali Ahmed is a Research Fellow at the Institute for Defence Studies and Analyses (IDSA), New Delhi.

Introduction

The Armed Forces Special Powers Act (AFSPA) has been in force in the Northeast since 1958 and in Jammu and Kashmir (J&K) since 1990. It has been in the news lately because of the debate in the public domain and the ministry of home affairs over the need to refine it. The application of the Act in J&K has also figured in the headlines. The military has tendered its position to the government against any dilution of the Act. The cabinet committee on security has taken the army’s reservations on board. There is no clarity over its current status.1 The state government intends to revoke the ‘disturbed areas’ status of parts of the state that have largely returned to normalcy. This is part of the political outreach under the centre’s eight point plan to address the stone throwing incidents of the summer of 2010.2 The army’s position on this initiative weighs-in on the side of prudence and caution.

The Act has acquired centrality in any discussion on India’s counter insurgency and anti-terrorism strategy. It has been pilloried as ‘draconian’ by some and defended as unwarrantedly ‘demonised’ by others3 and been assailed on a number of fronts. These include its implications for centre-state relations, its impact on the fundamental rights of citizens, the tacit political message sent to areas singled out for such laws, such as the Northeast and J&K, as being ‘different’

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from the rest of India, the possible empowering of the military to an extent of skewing the ‘civil-military’ balance, the strategic costs of the Act in terms of losing ‘hearts and minds’ etc.5 Given this interest and controversy surrounding the AFSPA, its correspondence with domestic law, in terms of protection of human rights, and with international humanitarian law (IHL) and human rights law, assumes significance.

Two approaches can be taken to examine the consonance of the Act with international law can be done through two approaches. One is legal i.e. that

is by studying the provisions and powers that accrue thereby; and the other is a study of its effects. The former is the domain of constitutional and legal experts and the latter is more amenable to dissection by professionals and security analysts. This paper takes the former route. It first discusses the legal aspect in terms of domestic law, IHL and human rights law. Given India’s obligations under international human rights instruments going beyond domestic law is necessary in any such discussion. Building complementarities between the Act in its application and IHL, that becomes operational in armed conflicts, would help in making the Act more ‘humane’. The second part discusses the Act from the security perspective. In doing so, it reaffirms that respect for human rights and humanitarian law in countering insurgency is of strategic import. In conclusion, it recommends some measures for the military for maintaining complementarities.

Domestic law

First a quick recap of the AFSPA antecedents.5 It is based on a colonial era law enacted to face down the Quit India movement in 1942. Its immediate precedents were similar acts of 1947 as to control partition related riots in Punjab and Bengal. AFSPA was promulgated in September 1958 to control Naga insurgency that had broken out in the mid fifties. It has since been enacted for Tripura in 1970, Manipur in 1980, Punjab in 1983 and J&K and Assam 1990.6

It came into the limelight in 2004 with the custodial death of a Manipuri woman, Thangjam Manorama Devi, accused of being an underground operative.7 IN November 2010 Irom Sharmilla has completed ten years of her fast for revoking of the Act. Both the government and the opposition in J&K favour a

Its correspondence with domestic law, in terms of protection of human rights, and with international humanitarian law (IHL) and human rights law, assumes significance.

It came into the limelight in 2004 with the custodial death of a Manipuri woman, Thangjam Manorama Devi, accused of being an underground operative.7

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reframing of its application. The second working group of the PM’s Third Round Table led by Hamid Ansari, then chairman of the minorities’ commission, had stated: ‘Certain laws made operational during the period of the militancy (AFSPA, DAA) impinge on fundamental rights and adversely affect the public. They should be reviewed and revoked.’8 Consequently, the central government is currently rethinking the Act. This could mean repealing it, reframing the Act to give it a more ‘humane’ character or by incorporating its provisions, perhaps in a diluted form in the Unlawful Activities (Prevention) Amendment Act, 2008.9 The army and air chiefs have publicly supported the retention of the Act and its provisions.10 The current situation is one of status quo.

The legal route has been much trodden. Writ petitions filed in 1980 challenging the central as well as the state Act were dismissed by the Delhi High Court. The central Act was held to be ‘not violative’ of Articles 14, 19 and 21 of the constitution. The legislative competence of parliament to make the Central Act was upheld. The Supreme Court concurred in its judgment on the Act’s validity in 1997. These judgements have scrutinised the Act in relation to the constitution and extant laws. However, the BP Jeevan Reddy committee examining it in relation to the Northeast in 2005,11 and the Veerappa Moily report of the Second Administrative Reforms Commission of 2007, recommended that the Act be repealed.

The Supreme Court’s verdict in 1988 in the matter of Naga Peoples’ Movement of Human Rights vs. Union of India was essentially that ‘Parliament was competent to enact the central Act’.12 The Court stated that in the event of deployment of the armed forces in aid of the civil power in a state, the forces shall operate in cooperation with the civil administration. It was of the opinion that during the course of such deployment the supervision and control over the use of armed forces would not have to be with the civil authorities of the state concerned and that the state would not have the exclusive power to determine the purpose, the time period and the areas within which the armed forces should be requested to act in aid of civil power. The powers that the Act conferred were not ‘arbitrary and unguided’. Its position on whether section 4 violated fundamental rights was a clear negative: ‘The powers conferred…are not arbitrary and unreasonable and are not violative of Articles 14, 19 or 21 of the constitution.’13

However, the stipulations made by the Supreme Court place an extraordinary onus on the military for self-regulation. These include that the officer (including an NCO) taking decisions needs to ensure that the action is ‘necessary’ and that the ‘due warning’ has been issued and in any case ‘the officer shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.’ It held that ‘conferment of the power… to destroy the structure utilised as a hide-out by absconders in order to control such activities could not be held to be arbitrary or unreasonable’ since the propensity of offenders

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of repeating their past activities could not be precluded. It required the handing over of arrested persons to be done in 24 hours (excluding journey) so as to be in compliance with Article 22 of the constitution in which this time limit is stipulated.

Section 6, it opined, ‘does not suffer from the vice of arbitrariness.’ Its view was that: ‘The protection given under Section 6 was not a conferment of an immunity on the persons exercising the powers under the Central Act. It only gave protection in the form of previous sanction of the Central Government before a criminal prosecution of a suit or other civil proceeding was instituted against such person.’ In case the government was to decline permission, then it had to state its reasons as its decision was subject to judicial review. The seriousness with which the Court viewed the ‘Do’s and Don’ts’ is obvious in the following:

10.1. The instructions in the form of “Do’s and Don’ts” had to be treated as binding instructions which were required to be followed by the members of the armed forces exercising powers under the Central Act and a serious note had to be taken of violation of the instructions and the persons found responsible for such violation had to be suitably punished under the Army Act, 1950.

10.2. In order that the people may feel assured that there was an effective check against misuse or abuse of powers by the members of the armed forces it was necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it was found that there was substance in the allegation, the victim should be suitably compensated by the State and the requisite sanction under s.6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceeding against the person/persons responsible for such violation.’

The BP Jeevan Reddy Committee14 recommended that it be repealed on the grounds that: ‘The act is too sketchy, too bald and quite inadequate in several particulars.’ Its finding was that the Act ‘has become a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.’ But it made a constructive suggestion that the main, if diluted, provisions be retained by incorporation into the Unlawful Activities Prevention Act (UAPA). The UAPA, amended last in wake of Mumbai 26/11 on December 31, 2008, includes a comprehensive definition of terrorism.15 It implicitly envisaged the deployment of armed forces in tackling this threat and had the clause providing cover from legal liability in the form of its Article 49 (b), analogous to Section 6 of AFSPA. The committee framed out

It only gave protection in the form of previous sanction of the Central Government before a criminal prosecution of a suit or other civil proceeding was instituted against such person.’

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a draft additional chapter for insertion into the Act so as to include the AFSPA within the general law applicable across the land, as against a special law that causes alienation among the people it is imposed on as in the Northeast. The committee found that the powers conferred in Section 4(a) were ‘not absolute’, but held that ‘the opinion formed by the officer concerned must be honest and fair.’ The committee was of the opinion that: ‘While providing protection against civil or criminal proceedings in respect of the acts and deeds done by such forces while carrying out the duties entrusted to them, it is equally necessary to ensure that where they knowingly abuse or misuse their powers, they must be held accountable therefore and must be dealt with according to law applicable to them.’ Its suggestion for insertion of AFSPA provisions in the UAPA was to specify powers, duties and procedures relevant to armed forces deployment and to also provide for an internal mechanism ensuring accountability with a view to guard against abuses and excesses by delinquent members. Its suggestion with regard to Section 4 provisions reads:

The force deployed shall take such steps and undertake such operations as are deemed necessary for the purpose of restoring public order or to quell internal disturbance.

In the course of undertaking operations mentioned in above, any officer not below the rank of a non-commissioned officer, may, if it is necessary, in his judgement, for an effective conduct of operations,

(i) use force or fire upon, after giving due warning, an individual or a group of individuals unlawfully carrying or in possession of or is reasonably suspected of being in unlawful possession of any of the articles mentioned in Section 15 of this Act,

(ii) enter and search, without warrant, any premises in order to arrest and detain any person who has committed a terrorist act or against whom a reasonable suspicion exists that he is likely to commit a terrorist act,

(iii) enter, search and seize, without warrant, any premises, and destroy, if necessary, the firearms or any of the articles mentioned in Section 15 (terrorism definition).

While acting under clauses (a) and (b) of this subsection, the forces deployed shall act in accordance with the directions contained in Appendix-A (Do’s and Don’ts)

The Second Administrative Reforms Commission’s (Veerappa Moily Commission) Fifth Report on Public Order16 seconded the BP Jeevan Reddy committee report

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that the AFSPA should be repealed and, as recommended by the Jeevan Reddy Committee, a new chapter be inserted in the UAPA. However, it held that ‘the

proposed insertion of Chapter VI A should apply only to the Northeast.’17 The reason for this has not been explained, even though it defeats the whole purpose of the BP Jeevan Reddy Committee. The purpose of the latter was to dispel alienation in the NortheEast by enabling military deployment under a general, as against a special law. The Moily Commission’s recommendation that the inserted chapter be only applicable to the Northeast is counter-productive. It also ignores the fact that the Act is operative in J&K too.

Both the Jeevan Reddy and Veerappa Moily reports acknowledged the need to maintain security and the necessity of checks and balances. Moily backed the former’s suggestion for a grievance cell and the former supported application of the ‘Do’s and Don’ts’ as approved by the Supreme Court. The Jeevan Reddy committee suggested ‘grievance cells’ to ‘ensure public confidence in the process of detention and arrest.’18 This need arises from the philosophical issue ‘who will guard the guardians’.19 It bears recall that the National Human Rights (Protection) Act of 1993 leaves the armed forces out of its intimate purview. Its oversight role over the armed forces is considerably restricted.20 The commission can at best seek a report from the central government. After the receipt of the report, it may make its recommendations to it. The central government is to inform the commission of the action taken within three months. This is to be published and a copy is to be given to the petitioner or his representative. That the NHRC’s however is highly restricted which puts the onus of supervision on those at the ministerial level, in terms of political supervision of the military, and on internal self-regulation by the military and its leadership.

There are tensions along two lines. One is in providing the legal cover necessary for the centrally controlled armed forces to aid civil authority in a domain that is also the responsibility of state governments in charge of public order. The Act stipulates that military deployment be reviewed in consultation between the Centre and the states. The second stress area is the autonomy that can be given such forces once deployed. While ‘coordination’ has been mooted as solution, the structures and procedures are not spelt out. There is also the problem of dispensing justice in case of misuse or abuse of power by the military. This has drawn the critical

The purpose of the latter was to dispel alienation in the NortheEast by enabling military deployment under a general, as against a special law.

Both the Jeevan Reddy and Veerappa Moily reports acknowledged the need to maintain security and the necessity of checks and balances.

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attention of human rights activists, resulting in the AFSPA being in the public eye.

International Humanitarian Law

IHL is the branch of international law dealing with humanitarian problems arising from conflict both international and non-international. It entails a limitation to the right of the parties in a conflict to use unlimited methods and means and entails protection of affected persons and property.21 Since AFSPA covers ‘internal disturbances’ as against ‘armed conflict’, such areas do not come under IHL by definition. That it is not a non-international armed conflict (NIAC) is clear from it not conforming to the definition of NIAC in Article 1 of Protocol II (PII) of 1977 of the Geneva Conventions (GC) of 1949.22 It is a domestic ‘internal disturbance’ at best and

its intensity has never been of the order to qualify as a civil war. PII is relevant to NIAC.23 However, since India is not a signatory to PII, it is not of relevance, besides the fact that the internal security situation in which AFSPA is operational does not fit the definition of NIAC in the PII. However, a ‘proxy war’ or interference by an external power in the form of support, to include military assistance, complicates the issue. It ‘internationalises’ the internal conflict, giving the situation cadences of the category ‘internationalised non-international armed conflict’ (INIAC). Even this is not applicable since in law, INIAC involves state actor interference in an NIAC. In India’s case, a proxy war is being waged by Pakistan through non-state actors. In view of this, the applicability of IHL gets limited to Common Article 3 of the GC and customary law of armed conflict. Here again, Common Article 3 is for NIAC as against situations as obtain in India – as given below:24

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors

There are tensions along two lines. One is in providing the legal cover necessary for the centrally controlled armed forces to aid civil authority in a domain that is also the responsibility of state governments in charge of public order.

It ‘internationalises’ the internal conflict, giving the situation cadences of the category ‘internationalised non-international armed conflict’ (INIAC).

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de combat…shall in all circumstances be treated humanely, without any adverse distinction...To this end, the following acts are and shall remain prohibited:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The aim of IHL being to protect human beings and their dignity, insurgents, terrorists and mercenaries continue to benefit from the protection provided by this Article.25 Since the GC in which Common Article 3 features have been enacted into domestic legislation as Geneva Conventions Act of 1960, the provisions of Common

Article 3 apply, since they inform customary law. Thus, even Pakistani and foreign nationals engaged in proxy war as mercenaries and terrorists are to be treated humanely owing to their being human. The term ‘illegal combatant’ is also not suitable. Even though they take direct part in the conflict, it is without being entitled to do so and on that account do not have combatant privileges or entitlement to prisoner of war status on capture. The term as such is used in relation to international armed conflict and is unclear in its application. Suffice it to say foreign nationals taking part in fighting come under

protection of Common Article 3, such as right against torture, and customary international law, such as right to judicial guarantees on trial. India treats their activity as terrorism and applies domestic jurisdiction in prosecution.

The treaty law part of IHL, in the form of PII, is not relevant to the Indian situation. Nevertheless, customary international law is. PII provisions do not amount to customary law or ‘general practice accepted as law’. Customary international law provisions have been codified into 161 provisions by the International Committee of the Red Cross (ICRC) in a project begun in 1996.26 PII has 15 Articles.

Thus, even Pakistani and foreign nationals engaged in proxy war as mercenaries and terrorists are to be treated humanely owing to their being human.

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AFSPA when examined in relation to IHL needs to be seen in comparison with these two sets of provisions. Customary rules include the principles of distinction between civilians and combatants; and between civilian objects and military objectives. They prohibit indiscriminate attacks and entail proportionality and due precautions. This is the stance IHL takes to balance military necessity and humanitarian concerns. In terms of protection to civilians and fighters hors de combat, customary law makes allowance for state sovereignty to derogate certain rights in times of emergencies. However, some rights remain non-derogable (covered in the section on human rights law below) so as to constrain abuse of a state’s emergency power.27 Restraint on methods finds mention in customary law and not in PII. Fundamental guarantees, provisioned in GC PII Article 4, being a minimum standard, are given below:

Art 4 Fundamental guarantees

1. All persons who do not take a direct part or who have ceased to take part in hostilities…are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

2. …the following acts…shall remain prohibited at any time and in any place whatsoever:

(a) violence to the life…in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) collective punishments…

Human Rights Law

Given the convergence lately of humanitarian and human rights law, the latter deserves separate attention. The human rights issue is more critical given the human terrain in internal security situations. The IHL is relevant but has not evolved sufficiently to cover AFSPA governed situations in India. The key HR

Customary rules include the principles of distinction between civilians and combatants; and between civilian objects and military objectives. They prohibit indiscriminate attacks and entail proportionality and due precautions.

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covenants are the International Covenant on Civil and Political Rights (ICCPR) and the Covenant on Economic, Social and Cultural Rights (ICESCR) of 1976. India ratified both in 1979, but has not enacted corresponding domestic laws since the rights are guaranteed by the constitution and in domestic law such as the Protection of Human Rights Act of 1993. State sovereignty permits derogation from certain human rights in times of emergency- when state survival is at stake. Article 4 of ICCPR (below) has significance in this context:28

‘Article 4: 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies…

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.’

The non-derogable rights referred to are:29

Article 6: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

Article 16: Everyone shall have the right to recognition everywhere as a person before the law.

In monitoring India’s human rights record, the Human Rights Committee in 1997 had expressed concern over the AFSPA. The committee favoured a political approach to problems with means that are compatible with the covenant. On the prolonged status of some areas as ‘disturbed areas’ it observed that ‘the State party is in effect using emergency powers without resorting to article 4, paragraph 3, of the Covenant.’30 This comment on India’s record indicates the gulf between precept and practice and between how India’s record is perceived by others and by itself.

India recognises the situation in ‘disturbed areas’ as internal security issues but not as internal conflicts. These do not warrant imposition of emergency.31 Nevertheless, they are of sufficient intensity to require employment of the military. Any infringements of human rights that take place are meant to bring

Reconciling AFSPA with the Legal Spheres

Vol 5. No 2. April 2011 119

the situation back to normal at the earliest and protect the civilian population from the effects of violence. Prohibitory orders that curtail rights are usually in place. Powers under the AFSPA, under Section 4 (a), have a bearing on ‘hard core’ rights, such as right to life. This is why the AFSPA has come under criticism on two counts. One is that the Act is a ‘colourable’ legislation, giving emergency powers without proclaiming emergency.32 Second is that the extensive power to take life violates international obligations and Article 14. Since the Supreme has ruled on the validity of the Act and that its powers are not arbitrary, correspondence between the AFSPA and human rights law needs to be brought about by a special emphasis on the ‘Do’s and Don’ts’. The Supreme Court had required that violations be taken as violation of the Army Act 1950. The original list was upgraded after the judgment.33

Conclusion

The assumption that the nation is behind the military is valid. However, the nation is interested in being defended and protected not only effectively but also in the right way. In a democratic system, means are as important as the ends. Since the powers that the military has under AFSPA are unlikely to be interfered with, the onus of their appropriate usage therefore rests primarily on the military. Efforts

to this end would keep the military aligned with the spirit and letter of domestic law, international norms, India’s civilisational ethos and values of the freedom struggle. This would bring about a correspondence between IHL, human rights law and the military’s approach to human rights in ‘disturbed areas’. Currently, there are gaps between AFSPA and the stringent stipulations of IHL and IPCCR. Domestic law is unlikely to change though it is constitutionally required to be in line with international law and norms. Given this, the army could instead re-emphasise ‘lessons learnt’ and ‘best practices’ to ensure that its record is in sync with expectations of a modern, professional 21st century army.

Currently, there are gaps between AFSPA and the stringent stipulations of IHL and IPCCR. Domestic law is unlikely to change though it is constitutionally required to be in line with international law and norms.

The Supreme has ruled on the validity of the Act and that its powers are not arbitrary, correspondence between the AFSPA and human rights law needs to be brought about by a special emphasis on the ‘Do’s and Don’ts’.

Ali Ahmed

120 Journal of Defence Studies

Notes:

1 Samanta, P.,“Valley: PM Tells Home, Defence to Sort Out Differences on AFSPA, “The Indian Express, August 8, 2010.

2 “Jammu and Kashmir Violence: Government Pins Hopes on Talks,“ India Today, September 15, 2010, available at http://indiatoday.intoday.in/site/Story/112659/India/jammu-and-kashmir-violence-govt-pins-hope-on-talks.html

3 “AFSPA Has Been Demonized: Army Chief Designate,“ Hindustan Times, March 11, 2010.

4 See for instance, “Armed Forces Special Powers Act: A Study in National Security Tyranny,“ SAHRDC, available at http://www.hrdc.net/sahrdc/resources/armed_forces.htm

5 MHA, “The Armed Forces (Special Powers) Act, 1958,“ available at http://www.mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf

6 For the background, see Second Administrative Reforms Commission Fifth Report on Public Order, p. 236, available at http://darpg.nic.in/darpgwebsite_cms/Document/file/public_order5.pdf

7 “HC allows Manipur to Re-Open Manorama Devi Case,” available at http://timesofindia.indiatimes.com/topic/article/0bOfbq93RlgAP?q=guwahati+hc

8 Ansari, Hamid, “Confidence Building Measures across Segments of Society in J&K,“ available at http://www.hinduonnet.com/nic/jk/jkreport_5.pdf.

9 The term ‘humane’ appears in the terms of reference of the BP Jeevan Reddy Committee “Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958“.

10 “Air Chief Marshal PV Naik defends AFSPA,“ The Economic Times, October 5, 2010, available at http://economictimes.indiatimes.com/news/politics/nation/Air-Chief-Marshal-P-V-Naik-defends-AFSPA/articleshow/6687334.cms

11 The committee was appointed subsequent to unrest following the death of Manorama Devi and the unique protest of the Meira Paibis, a women’s group, in front of Kangla Fort in July 2004.

12 See text of judgment available at http://judis.nic.in/supremecourt/helddis.aspx

13 The Act envisages the following powers for the military (Sections 4) when employed in areas declared ‘disturbed’ under Section 3 of the Act: “4. Special Powers of the armed forces – Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force…; (b) …destroy any arms dump, prepared or fortified position or shelter…; (c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists…; (d) enter and search without warrant…”

14 The text of the report was leaked to The Hindu and is available at http://www.hinduonnet.com/nic/afa/. The committee included a former Director General Military Operations, Lt Gen (Retd) VR Raghavan.

15 Text is available at http://www.indiacode.nic.in/. The definition of terrorism in section 15 is: ‘Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,— (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause— (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.

16 See text: “Public Order”, Second Administrative Reforms Commission, Fifth Report, Government of India, June 2007, available at http://darpg.nic.in/darpgwebsite_cms/Document/file/public_order5.pdf

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17 Second Administrative Reforms Commission Fifth Report on Public Order, p. 242.

18 Text of recommendations is available at http://www.hinduonnet.com/nic/afa/afa-part-iv.pdf./ See for ‘Grievance cell’, p. 79.

19 The question dates back to the times of Socrates.

20 Text is available at http://nhrc.nic.in/. The procedure with respect to Armed Forces is on pp. 14-15.

21 Gasser, Hans-Peter, “International Humanitarian Law,“ in L. Maybee and B. Chakka (eds.), International Humanitarian Law: A Reader for South Asia, New Delhi: ICRC, 2008, p. 1.

22 NIAC are taken as conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

23 See text of Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8 1977, available at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/d67c3971bcff1c10c125641e0052b545

24 See text available at ICRC, http://www.icrc.org/ihl.nsf/WebART/365-570006?OpenDocument

25 AP I, Article 47 defines mercenaries as: “1. A mercenary shall not have the right to be a combatant or a prisoner of war. 2. A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party…”

26 ‘Overview’, Customary International Humanitarian Law, ICRC, available at http://www.icrc.org/eng/war-and-law/treaties-customary-law/customary-law/overview-customary-law.htm

27 “Continued Applicability of Human Rights Law During Armed Conflict,“ ICRC, available at http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_intofugu

28 “Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977,“ text available at ICRC, available at http://www2.ohchr.org/english/law/ccpr.htm

29 Ibid.

30 “Concluding Observations of the Human Rights Committee: India. 08/04/1997’, CCPR/C/79/Add.81. (Concluding Observations/Comments) August 4, 1997, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En?OpenDocument

31 The Punchhi committee report on Centre-State relations has envisaged a category of ‘local emergency’ to cover internal disturbances type situations in its report of April 2010.

32 This was ruled out by the apex court in its 1997 judgment.

33 It is available as Appendix C in the Indian Army Doctrine for Sub Conventional Operations, Shimla: HQ ARTRAC, 2006, pp. 68-74.

CIVIL LIBERTIES

Draconian Statute Armed Forces (Special Powers) Act, 1958 A G Noorani

It is not enough to amend the Armed Forces (Special Powers) Act, 1958. The entire draconian legislation must be recast.

THE United Front government is planning major amendments to the Armed Forces (Special Powers) Act, 1958. Second only to TADA, no other statute has earned opprobrium for India abroad as this one has. But while TADA has been widely censured not many have bothered to bring home to the people the enormity of the wrong this act truly is. An outstanding exception is Nandita Haksar Unlike TADA, the act applies only to areas which the government chooses to nominate as 'disturbed areas1. Currently, they are the god-forsaken states of Jammu and Kashmir, Punjab, Chandigarh, and parts of the north-east. Section 3 empowers the state as well as the central government to declare the whole or any part of the state "to be a disturbed area" if, in the opinion of either, it "is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary".

Since the Criminal Procedure Code, 1989 already contained - as does its successor of 1973 - elaborate provisions for invoking such help from the armed forces (As 130-132) what the act implies is extensive use of armed forces over a long period and with vastly greater powers. No time limit is prescribed for the duration of the declaration of the 'disturbed area'. Its continuance depends on the sweet will of the govern-ments S 4 defines the "special powers of the armed forces". They are available to "any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces" in the area.

Four such powers are explicitly listed -destruction of arms dump, "prepared or fortified position or shelter" from which armed attacks are made or "are likely to be made" or "used as a hide-out" - all in the assessment of the officer concerned; arrest without a warrant of one who has committed

or "is about to commit a cognisable offence", provided there is "reasonable suspicion", enter and search premises. Besides these three there is the notorious "licence to kill" embodied in S 4 (a) which reads thus: "If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider

necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or things capable of being used as weapons or of fire arms, ammunition or explosive substances". This is a licence to kill; so wide is its sweep, so shorn as it is of any curb on excess or any sense of propor-tion. It covers the man who holds a lathi as well as one who Carries a pistol. It covers even a peaceful assembly, meeting or protest demonstration - even if the participants are unarmed. Even the nature of the warning is left to the officer's discretion - such due warning as he may consider necessary.

Note the callousness. The amplitude of the power is not limited. It extends "even to the causing of death". But no limit or condition to its exercise is provided; not even a pretence of force proportionate to the occasion.

The person arrested is to be handed over to the police by the armed forces "with the least possible delay" together with a report (S 5). There is the usual bar of suits and prosecutions for things done under the act "in good faith". Under the General Clauses Act, 1897 even negligent acts qualify for that description. It precludes mala fides which is even hard to prove.

India's Third Report to the UN Human Rights Committee under Article 40 of the International Covenant on Civil and Political Rights is due to come up before it shortly. It was submitted on November 29,1995. The Second Report was discussed on March 26 and 27, 1991 when attorney general G Ramaswamy was grilled by the members. They act in their individual capacity as jurists.

Rajsoomer Lallah from Mauritius said, according to the official transcript:

He was worried about a series of laws that had been passed in India relating to terrorism, notably the Armed Forces (Special Powers) Act, which was applicable to various parts of the territory of India, especially the north-east, and which was apparently being extended to other parts of the country. It was his impression that the act was a special kind

of legislation which short-circuited the various guarantees laid down in the Code of Criminal Procedure, and possibly even short-circuited the guarantees to be found in the Indian Constitution itself; he wondered to what extent it was consistent with the obligations undertaken under the Covenant, especially article 4. The Armed Forces (Special Powers) Act enabled the army to supplement the inadequacies of the civilian authorities not only in the pre-trial stage but also in respect of powers of arrest and search. He asked to what extent the act was in compliance with the obligations undertaken under the Covenant to bring a person to trial with the least possible delay and to provide guarantees for people's physical integrity. He wished to know whether there were remedies in the event of officials committing transgressions. Section 4 of the act enabled the military authorities to shoot, arrest, search and seize, and he was concerned to know whether the criminal procedure applied with respect to the minimum use of force, and the various guarantees, for example, with respect to the searching of women and the possibility of their suffering violations to their dignity and physical integrity, the limitation as to the time after which the military authorities were obliged to hand an arrested person over to the civilian authorities, and whether the investigation was carried out by military or civilian personnel. There was an article in the Indian Constitution which guaranteed protection against arrest and detention in certain cases, and those guarantees raised a number of questions. The north-east of India was an area where there was not ready access to lawyers, and in a situation in which it had become necessary for the state to rely on non-civilian authorities to assist in the establishment of order, he suggested that steps should be taken to ensure that those military authorities effectively came under civilian control, and that people who ran a risk of suffering transgressions committed by the non-civilian authorities had ready access to redress.

Jose Aguilar Urbina of Costa Rica said: It was his impression that the reservations to the Covenant showed that it was not being fully implemented in India. Other articles, in respect of which no reservations had been entered, were also at variance with such domestic legislation as the Terrorist and Disruptive Activities (Prevention) Act and the Armed Services (Special Powers) Act. In particular, the authority conferred by the latter act on the security forces with regard to the use of firearms was clearly excessive and in contravention of article 6 of the Covenant, while Article 14 was contravened by the provisions in the former Act which invalidated the concept of due process by denying presumption of innocence. In the case of article 14, the committee should have been notified of any derogation. He hoped,

1578 Economic and Political Weekly July 5, 1997

however, that the constructive dialogue with the government of India would continue and that the next periodic report would go some way towards allaying the concerns voiced by the committee. Rein Myullerson from the Soviet Union

said that the act as applied to Kashmir violated article 6 of the Covenant (on the right to life). Serrano Caldera of Nicaragua was concerned that the suspension of certain rights in exceptional circumstances could, in effect, become a means of circumventing the guarantees embodied in the Covenant, or even become general practice. He referred, in particular, to the emergency legislation in force, such as the Armed Forces (Special Powers) Act and the Terrorist and Disruptive Activities (Prevention) Act.

Kuit Herndl of Austria noted that the information contained in the report was, understandably, more legal than factual, It was to be hoped that the Indian government would review its reservations to the Covenant and the emergency legislation in force, taking into account the committee's recom-mendations.

G Ramaswamy said that he valued the suggestions made by members of the committee. Most of the questions raised had

COMMENTARY

THE other day a friend, in the course of a conversation that veered towards talk on political issues, remarked that it was very likely that the BJP would come to power if not in the next elections then in the ones after. The implication was that it would obtain a sufficient mandate: a two-thirds majority.

Andthcn it would start on its self-imposed task of the redefinition of the nation, perhaps with an issue that has received considerable popular support and, equally, been the subject of considerable popular ignorance, the Union Civil Code. This issue has been projected by the BJP and, unfortunately, even some social scientists and activists as one concerning mainly Hindus and Muslims. Muslims fanatically oppose any attempt to change their personal laws (they deem it inter-ference), but Hindu laws have undergone enormous reform, and the like.

I cannot enter into a lengthy discussion here but will point out only that the issue

been in connection with the Armed Forces (Special Powers) Act and the Terrorist and Disruptive Activities (Prevention) Act. Since neither had been referred to in the list of issues, his delegation had not had available all the supporting documentation necessary to explain the need for such legislation. He assured members that there had been no misuse of the powers conferred under those acts: the misgivings expressed by the committee were purely theoretical.

Para 52 of the Third Report is in the same vein as Ramaswamy' s presentation. The only safeguard it mentions is the power to declare any area as "disturbed area". The next hearing should be more "interesting" than the previous two.

It would be sensible to amend the act soon. The National Human Rights Commission is also concerned. The crucial proposed amendment provides that fire can be opened "only in situations where they (the armed forces) are fired upon or are being threatened to be fired upon". This is utterly inadequate. The entire provision - S 4 (a) - indeed the act itself needs to be recast. Civil liberties organisations should be consulted. Government should publish its proposals for public discussion.

of a UCC would affect not just 'Hindus' and 'Muslims', but also particular tribal populations having different customary laws and kinship patterns, apart from other religious minorities. Again, if the BJP (and this is implicit in what it says) envisages a UCC on the lines of reformed Hindu law one has to point out that the latter is not exactly flawless or gender-just in all provisions.

Once in power, the BJP will be able to push its cause of redefinition through, given the ground support it has and the startlingly communal attitudes of vast numbers of the 'majority' community. This is a com-munalism deep and insidious. Once covert, it is now brazenely in the open, legitimised by Hindutva, which has allowed Hindus to give vent to suppressed, denied, perhaps even almost forgotten feelings of animosity. Pride is instilled through catch-statements as: 'Gary se kaho hum Hindu hain. For us this may seem like a mere slogan, but many others respond to it passionately.

Why are anti-Muslim feelings so widespread in our society? It is not just that communal parties have had the time to spread their ideas successfully. Clearly something more deep-seated is involved. Is it memories of Partition that feed into the construction of the Other? As Don Miller notes, until recently people have avoided looking too closely at the Partition, it has remained part of a suppressed memory, casualty of collective amnesia. But given the circum-stances, a change is in the process.

'One unintended consequence of the evils of Hindutvism may be to loosen the power of such defences where they exist. Certain people, for example, apparently have had to confront, perhaps as never quite before, the truth of their parents' attitudes to Muslims. One Indian has quite recently recounted how her mother used to tell her as a child that if she were to put her are into a vat of oil and then plunge it deep into a sack of sesame seeds then, if for the number of seeds sticking to her a Muslim were to repeatedly tell her to trust him, she must not' (1996: 203). I know of other cases where for young people the difficulty lies in coming to terms with their parents' views and then, after a while, in opposing them.

Kakar perceptively recognises that 'stories from their parents and other family elders' constitute one of the 'primary channelfs| through which historical enmity is trans-mitted from one generation to the next' (1995:39),

[T|hc child ignoring the surface inter-pretations and rationalisations hears the note of helpless fury., in the accounts of beloved adults and fantasises scenarios of revenge against those who have humiliated his family and kin. The fantasies , can later turn from dimly conscious images to concrete actions during communal conflagrations...

Further, Kakar argues (1995:39-40): [ A]s the child grows up. the parental message may be amplified by the input of.. .teachers. As Rajesh, one of the subjects of this study...remarked: "We had a history teacher in school. He was the type who loved his subject. He would keep the textbook aside and teach us the lesson extempore - like stories. When he used to tell us about the inhuman atrocities committed by Muslim invaders on the Hindus, I remember I used to get so angry that I felt tike walking out of the class and beating up a few Muslim boys." Is this very different from the people in

cinema houses who applaud each time a Pakistani soldier is killed by an Indian one in the film Border, or come out of the hall shouting slogans such as 'Pakistan Murdabad'? Clearly the emotions aroused by films such as this one or Roja relate in some way to shifts in our social imagination, a transformation in what society permits or makes possible to invent. At one time

Losing (Hope) to BJP Rowena Robinson

The search for ethical and socially and politically progressive alternatives must not end no matter how crude or unsatisfactory the initial efforts appear. The ready-made answers of the seemingly disciplined and cohesive BJP are purchased at much too high a price.

Economic and Political Weekly July 5, 1997 1579

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february 19, 2011 vol xlvI no 8 EPW Economic & Political Weekly24

evaluate the NIOH study. The ICMR is to prepare a report on the basis of the reports of these committees (Mathru­bhoomi,­ 25 January 2011).

Even as attention has been focused on Kerala, in-depth health assessment stud-ies have not been done in Maharashtra, Orissa, Madhya Pradesh and Andhra Pradesh, where endosulfan has been in use for a long time.

Santhosh Menzes (as reported in Misra 2011b) was paralysed when he was a year old; he is now 20 years old. When his moth-er was pregnant with him, their village, Kokkade in Dakshin Kannada, was being subject to aerial spraying of endosulfan.

Pregnant mothers of endosulfan-affected villages have only one prayer: let their children be born without any stag horn limbs or any disabilities whatsoever. They

only want that their children live in an endosulfan-free environment.

Notes

1 “India, which is opposed to such a ban, has alleged that the committee that is to take a decision on decla-ring endosulfan a POP has committed irregu l a rities and procedural lapses” (Business­Line 2011).

2 As mentioned in the website of Endosulfan Victims Relief and Remedial Cell, Kasargod, http://endo-sulphanvictims.org/initiative.htm

3 As posted on the site of Endosulfan Victims Relief and Rehabilitation Cell website http://endosulphan-victims.org/resources/CSE_report.pdf. Originally published in DTE 2001.

4 STED Committee Report on the Suspected Spreading of Unusal Diseases in Enmakaje Grama Panchayat of Kasargod district), http://kerenvis.nic.in/files/pubs/endosulfan/sted.html

5 “NRCC Withdraws Recommendation of Endosul-fan for Cashew”, letters from National Research Centre for Cashew received by Aravinda Yeda-male, chairman of our Padre Endosulfan Spray Protest Action Committee: available at http://www.poptel.org.uk/panap/kerala/surat.htm

6 (http://www.cseindia.org/content/endosulfan-poisoning-padre-village-industrys-dirty-tactics-0)

References

Business­Line­(2011):­“India Says Trade Compulsions Forc-ing Ban on Endosulfan”, Business­Line, 25 January.

David, Stephan (2001): “Spray of Misery”, India­Today, 23 July.

Down­to­Earth (2001): “Omnipresent Poison”, a special report published in Down­to­Earth,­28 February.

GoI (2003): “Minutes of the 233rd Meeting of the Reg-istration Committee”, held on 1 April 2003, Ministry of Agriculture, Krishi Bhavan, New Delhi (http://www.cibrc.nic.in/rc.htm).

Joshi, Sopan (2001): “Children of Endosulfan”, Down­to­Earth, 28 February.

Misra, Savvy Saumya (2010): “State of Endosulfan”, Down­to­Earth,­31­December.

– (2011): “Another Kasargod”, Down­ to­ Earth, 31 January.

Saiyed, Habibullah, Aruna Dewan, Vijay Bhatnagar, Udya-var Shenoy, Rathika Shenoy, Hirehall Rajmohan, Ku-mud Patel, Rekha Kashyap, Pradip Kulkarni, Bagalur Rajan and Bhadabhai Lakkad (2003): “Effect of En-dosulfan on Male Reproductive Development”, Envi-ronmental­Health­Perspectives, December; 111(16).

The­Hindu­(2001): “Cashews for Human Life?”, 22 July.Yadav, Kushal Pal Singh (2003): “International Journal

Vindicates Endosulfan Study”, Down­ to­ Earth, 31 December.

– (2004); “Lies, Damn Lies and Endosulfan”, Down­to­Earth, 15 April.

On Ending the War against Our Own People

Gautam Navlakha

Gautam Navlakha (gnavlakha@gmail.com) is a member of the People’s Union for Democratic Rights, Delhi.

Ten years of Irom Sharmila’s heroic fast and more than four decades of struggle against the Armed Forces (Special Powers) Act, 1958 should convince us that the time has come to demand an end to war against our own people as the most principled and realistic stance.

In order to understand the significance of the Armed Forces (Special Powers)Act (AFSPA) and our response to it, we

must comprehend the role of the armed forces of the Indian union in wars of sup-pression. It is my contention that our op-position to AFSPA is not only because it protects the Armed Forces of the Union (the AFU, which is how the Indian Consti-tution defines army, navy, air force and the central paramilitary forces) but also because we, in the civil liberties and demo cratic rights groups, oppose the poli-cy of military suppression of our own peo-ple in the first place. Indeed, it is the Indi-an state’s policy of military suppression of its own people that necessitates protection from prosecution of the military forces d eployed to carry out the dirty task of bru-tally restoring the State’s authority, which, in turn, legitimises counter-violence.

Repealing AFSPA: Background

Out of 626 districts in India, no less than 136 districts, with a population in excess of 150 million people, witness the State’s

policy of military suppression. Of these 136 districts, 101 have been notified as “disturbed areas” where the AFSPA and state-level Disturbed Areas Act, either separately or concurrently, operate. In 35 districts, where the so-called joint forces operations against “Left-Wing Extremists” are underway, neither of these Acts is invoked and yet the war continues. (Of course, in Chhattisgarh, Bihar, Orissa, Jharkhand, Andhra Pradesh, Maharashtra and West Bengal, there could be some other state-level Act in operation which indemnifies the forces). However, for all practical purposes, the ground reality is no different in these 35 districts spread over nine states and the 101 districts where AFSPA is notified.

The second thing to note is that the cen-tral government has set aside Rs 40,000 crore for “internal security” (which falls under the Union Ministry of Home Af-fairs), i e, for wars in these districts, where nearly 80% of the central paramilitary forces (CPMFs, whose strength is 9,00,000 plus 145 battalions of the India Reserve Battalion or 1,50,000 personnel) and half of the Indian Army (3,37,000 in Jammu and Kashmir, and 2,80,000 in the north-east) is engaged in counter-insurgency. Were we to add this Rs 40,000 crore allo-cated towards “internal security” to what the Union Ministry of Defence spends on “internal security” (taking merely wages

COMMENTARY

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and allowances and pensions of this force), which comes to approximately Rs 29,000 crore, the Indian government is spending a staggering sum of Rs 69,000 crore an-nually to pay for these wars. This amount could suffice to pay for a universal Food Security Act in India. Significantly, the union finance ministry has cited paucity of funds to pay for such an Act.

There is another dimension to this which needs to be considered. In an inter-view to Tehelka (5 June 2010), Union Home Secretary G K Pillai said that “Manipur has the highest police to popu-lation ratio in the country”. And yet Manipur is raising another four battalions of Manipur Commandos! Of course, he did not spell out what the ratio was. J&K, according to its chief minister Omar Abdullah, has 5 to 7 lakh troops (army, CPMFs, and state armed police), or, say, 6,00,000 for a population that is said to be 1.1 crore. This means a ratio of one armed soldier for 20 persons. Of course, the ratio changes even more if we consider the ac-tual concentration of troops in the Kashmir Valley and those districts of Jammu which have a sizeable Muslim population. It could be approximately one armed soldier for 15 persons or even less. Recalling what the union home secretary said in Manipur, the ratio could be a lot worse. Such a heavy concentration, deployed in a man-ner which monitors and controls the pub-lic and private lives of people, creates im-pediments for normal activities of people and causes a heavy loss of scarce human and material resources whose actual cost is yet to be calculated.

To this, one ought to add another d imension. As evident from the case of J&K, there is pressure on the J&K govern-ment to recruit and train a force which can replace the central forces. Thus, accretion in strength of armed police gets com-pounded because, apart from the bloated CPMFs, we now have inflated state-level armed police formations. And like the cen-tral forces protected by the AFSPA, these state forces have their own state-level pro-tection against prosecution for any act committed in the course of “active service”.

In other words these conflicts become the occasion for a stupendous augmenta-tion of personnel in existing armed forma-tions (in 2007-08, Shivraj Patil, the then

union home minister, spoke of raising 206 battalions of CPMFs over the next five years) and/or through the creation of new force of armed police battalions or of Rashtriya Rifles, which was raised in 1993-94 for fighting the insurgency in J&K. Also, it is little known that the armed police are trained along the lines of infan-try formations of the army. We must keep in mind also the fact that, since 1947, not a year has passed when the Indian state has not been engaged in waging an internal war (call it by any name – war, armed con-flict, or military suppression) against our own people in some part of the country or the other. It can also be established em-pirically that almost all movements which picked up guns did so only after non- violent struggles were run aground by the Indian state one way or the other or dis-missed out of hand. In all these cases of internal wars, the military (army and CPMFs, in particular) is deployed for a pro-longed period with enhanced powers to act on its own, i e, minus civilian supervision. This is unlike its short-term usage during riots where they operate under the orders of a magistrate and are protected under S ection 45 (Protection of Members of the Armed Forces from Arrest) of the CrPC. This is the background in which the campaign to repeal AFSPA should be situated.

Review of AFSPA

When the AFSPA was passed in 1958, after a truncated debate in the Parliament, the then Union Home Minister G B Pant had as-sured the Members of Parliament that the Act was temporary and only confined to fighting the “Naga hostilities”. What was temporary became a permanent feature and can now be imposed anywhere in the Indian union. Parliament also never saw it fit to debate/review this Act since its enact-ment. Prior to the United Progressive Alli-ance government instituting this review process, the Supreme Court had examined the Act. The judicial process had resulted in the Supreme Court, in 1997, upholding the legal validity of AFSPA, asserting that Parlia-ment had the powers to enact such an Act. The review of the Act undertaken by the Justice Jeevan Reddy Committee, as per its Terms of Reference, was not mandated to recommend its repeal. However, having decided to ask for its repeal, it went on to

suggest that provisions of the Act could be incorporated in the Unlawful Activities Pre-vention Act, 2004. Thus both the Supreme Court, in its 1997 judgment, as well as the Justice Reddy Committee, in its report, have upheld the need to empower the Armed Forces of the Union when they are deployed for a prolonged period in an area declared to be “disturbed”. The other draw-back of the Reddy Committee was that the review and the public hearings that fol-lowed were confined to the north-east, par-ticularly Manipur and Assam. The conspic-uous absence of J&K from its purview was most unfortunate.

It needs to be reiterated that the AFU empowered with the AFSPA are introduced not to curb armed militancy but are meant to control the civilian population from ex-tending support to secessionist activities. The AFU empowered with the AFSPA thus antagonise more and more people and swell the ranks of militants contrary to o fficial pretence that they are fighting only armed groups.

Human Rights Abuse

This is clear from the ground reality of J&K with a huge deployment exceeding six lakh troops (which comprises army, CPMFs, state armed police, etc). Bunkers, checkpoints and road blocks are manned by CRPF/BSF in towns and Rashtriya Rifles (RR – the Army’s 66 battalions, counter-insurgency force) maintains vigil in rural areas. Virtually every neighbourhood in urban areas boasts of a camp of security forces and between every four and five vil-lages, there is an RR camp. Just Srinagar town has 400 bunkers; thus removal of 16 of them is inconsequential. This level of deployment exists at a time when it is offi-cially claimed that the number of mili-tants is no more than 600 and no more than 250 remain in the Kashmir Valley. Movements of people on the roads and bazaars are regulated with a frequent demand to show the IDs and search bags. It is a known fact that anyone, in an area declared “disturbed”, found without an ID can suffer anything from having to bribe her/his way to freedom to becoming a victim of enforced disappearance.

Again the very deployment of security forces necessitates occupation of land and buildings. On 24 August 2009, the state

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government had informed the J&K assem-bly that out of 10,54,721 kanals (or 1,31,840 acres), spread over 82 tehsils of J&K, occu-pied by the Indian security forces, only 1,99,314 kanals (24,914.25 acres) were u nder lease licence and acquisitions made under the Land Acquisition Act. Thus nearly 80% of the land was in illegal occupation. As a result, when the Union Ministry of Defence announced with much fanfare that it was increasing the rental for land and buildings it had occupied, it obviously meant that it would be paying higher rent for land leased (obviously, there is no question of paying rent for land illegally occupied).

It also occupies more than 1,572 build-ings, which includes 98 schools. This impacts normal life and economic acti-vities. However, all this is a quintessential aspect of counter-insurgency policy which is meant to break the link between armed groups and the people through recourse to force or threat of use of force. In other words, while atrocities may come down if the legal cover indemnifying the security

forces is withdrawn, it would be naïve to believe that atrocities will cease if this c over is withdrawn. This is because atroci-ties are inherent in the very nature of counter-insurgency, whose main purpose is to coerce a people into submission.

The findings of civil liberties’ groups, as well as those of official inquiries undertak-en from time to time, show that once the AFSPA comes into operation, civil adminis-tration begins to play second fiddle. In-stead of “coming to the aid of civil adminis-tration”, the armed forces virtually replace it. Thus the overlap between law and order that pertains to the civilian domain and in-ternal security, which is the raison d’être of AFSPA, is difficult to keep apart. In real life the lines get blurred to the point that even traffic management invites the overbear-ing presence of the AFU. Lately, the AFU have been entrusted with the running of schools, health centres, road building and now construction and management of mi-cro hydel projects (as in J&K). Thus, more and more of matters, which were con-sidered part of civil administration, are

becoming part of the activity of the AFU, all in the name of “winning hearts and minds” (WHAM, “operation sadbhavna”).

We have, in recent times, also witnessed the heads of coordination centres, invaria-bly the corps commander belonging to the army, intervening in the public domain with their own assessment of the situation. The most reprehensible was the statement of the General Officer Commanding (GOC) of the Northern Command who character-ised non-violent protests in Kashmir as be-ing “agitational terrorism”. This amounts to declaring all protestors as “terrorists” and thus made them legitimate targets of the firepower of the Indian security forces. Between 11 June 2010 and 15 October 2010, 110 civilians were killed (all victims of bullets, tear gas shells, or beatings), 1,500 were injured from firearms/tear gas shells/pellets, 500 were severely beaten and 38 were blinded from bullets or pellets or marbles used as projectiles in slingshots by the CRPF. Despite these killings and seri-ous injuries, just a single FIR has been filed in a case against the CRPF for killing a

Call for PaPers

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After a very successful first conference at the same venue in 2009, IJEB and Serials Publications, New Delhi are happy to announce the next meeting in 2011.To be Invited Speakers: Dr. Subramanian Swamy, Ex-Union Minister of Commerce, Government of India and Harvard Professor of Economics, Dr. Bimal Jalan, Ex-Governor, Reserve Bank of India, Dr. Y. V. Reddy, Ex-Governor, Reserve Bank of India and many other eminent scholars, academicians, business leaders and researchers. Invited speakers may address Luncheon meetings on the India specific topics.Paper & abstract submissions: Deadline: May 1, 2011 and early submissions are encouraged. Full paper submission deadline: October 15, 2011, Registration deadline is October 31, 2011.Research articles in the area of Economics and Business. The articles may deal in broad areas of branches of Economics such as Econometrics, Macroeconomics, Microeconomics, Public Finance, International Economics, Development Economics, Mathematical Economics, Industrial Economics, Agricultural Economics, Economics of Education, Women Studies, Health Economics, Population Studies, Environment Economics, Applied Economics and Management Information Systems; Global Business; Marketing Theory and Applications; Accounting; Economics; Finance & Investment; General Management; General Business Research; Business & Economics Education; Production/Operations Management; Organizational Behavior & Theory; Strategic Management Policy; Labor Relations & Human Resource Management; Business Law; Public Responsibility and Ethics; Technology & Innovation; Public Administration and Small Business Entrepreneurship. Qualified individuals will referee papers submitted through a process of double blind peer review. Accepted papers will be published in INDIAN JOURNAL OF ECONOMICS AND BUSINESS-ISSN: 0972-5784 (www.ijeb.com)

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Conference Registration fee: Rs. 5000-00. It includes cost of all lunches and receptions on December 19 and 20th December, 2011. Persons who have submitted registration fees before June 1. Make checks payable to ‘Serials Publications’ 4830/24, Ansari Road, Darya Ganj, New Delhi - 110 002 (India), Ph. 011-23245225 e-mail: serialsjournals@gmail.com, Please visit our web site: www.serialspublications.com

COMMENTARY

Economic & Political Weekly EPW february 19, 2011 vol xlvI no 8 27

youth in unauthorised firing, but no one has been arrested. In other words, civilian protestors are easy pickings. The problem gets compounded because promotion and reward provide material incentives for extrajudicial killings.

Untrammelled Power

Often the officers of the security forces adopt a position which is at odds with that of the political authority. A recent ex-ample was witnessed in Assam where both the corps commander as well as the governor (usually a retired general) came out opposed to a political initiative to b egin dialogue with the United Libera-tion Front of Asom. This is the result of the d irect fallout of employing security forces over a long duration in internal sit-uations which creates a kind of vested in-terest and where they come to enjoy un-trammelled power.

Arguably, as the situation worsens with the recourse to military suppression, it throws up its own compulsions where some militant or renegade groups begin to browbeat civilians. There are times when inimical neighbours exploit this situation to fan the fuel of militancy. I believe that such a situation can be dealt with most e ffectively only when there is a political process and government appears sincere and serious in addressing the legitimate grievances and takes recourse to demo-cratic solutions be it respecting the right to self-determination in Kashmir or in M anipur or the Naga areas or in pursuing the path of dialogue with the Maoists. To believe that problems get resolved when people are suppressed is contrary to ground reality. Developments in J&K are a reminder that despite the most horren-dous 20 years of repression and most ex-traordinary control that grips the lives of people in Kashmir, the demand for Azaadi from India remains robust.

Half Measures Are Deceptive

Now, having gone through the debate over AFSPA for over three decades, our (civil lib-erties and democratic rights’ groups) strug-gle saw the Supreme Court uphold the constitutional validity of the Act (in NPMHR­vs­Union­of­India­1997), albeit with sugges-tions regarding some minimal safeguards in the shape of a six-monthly review of its

working or defining strictly the “shortest possible time” for handing over a person arrested by the AFU to the police. The next round of our collective efforts saw the appointment of Justice Jeevan Reddy Com-mittee (2004-05) which called for repeal of AFSPA, because the title had come to ac-quire a pejorative meaning. Therefore, he suggested that AFSPA’s provisions should be incorporated into the Unlawful Activi-ties (Prevention) Act. And now, even as the demand grows for repeal of the AFSPA, to coincide with 10 years of Irom Sharmi-la’s fast-unto-death, there are efforts afoot to persuade us that we should become pragmatic/realistic and settle for dilution of some provision or amendments to certain sections of AFSPA or for its step- by-step withdrawal from a state. Thus the struggle is not only confined to one part of a larger problem, i e, AFSPA, it now gets further weakened with a call for be-ing sensible and settling for dilution/ partial withdrawal.

Actually, even the repeal of the AFSPA would not mean an end to military sup-pression, war, or armed conflict per se be-cause state-armed constabularies too are deployed. Looking at the experience of Manipur or J&K and the role of the state-level forces in the nine states where joint operations are going on against the M aoists, there is absolutely no reason to believe that they are any less brutish and dastardly. This is evident from the recent incidents in Manipur which were perpe-trated by the Manipur commandos, or in J&K, where large-scale war crimes were committed by the Special Operations Group/Special Task Force of the J&K p olice or the horrendous record of the state forces of the nine states where anti-Maoists operations are going on. Thus, for one, we might get rid of AFSPA and the Army partially. But we will see them get replaced by state armed forces and state-level Disturbed Areas Acts. In other words, our major concern about ending the use of military suppression to resolve political problems will not be addressed. All in all, a piecemeal approach focuses on merely one aspect of the conflict.

The conventional wisdom is that this is better than nothing or that at least it can provide immediate relief for civilians in the conflict zone. While this appears

attractive, it does not, unfortunately, re-solve the predicament we face which has become worse now that there is a near consensus among all the parliamentary parties, from left to right, ruling out the repeal of AFSPA, and there exists a frac-tured support even for pulling out the army from the theatre of internal war/s.

Indeed, if one has to settle for a piece-meal approach why should we not replace the call for the repeal of the AFSPA with a call for the withdrawal of military forces? If there is no alternative to a piecemeal ap-proach, why not explore the possibility of achieving our objective by demanding the withdrawal of the army and the CPMFs from counter-insurgency? There are many retired and serving army officers who be-lieve that army’s primary responsibility has been compromised and discipline has been affected by making the Indian army focus more on its secondary role (of aiding civil administration in conflict or cala-mity). They also feel that while protection from prosecution is essential if the army is called in and therefore AFSPA should r emain, they favour withdrawal of the army from counter-insurgency as being necessary. Be-sides, calling for repeal of AFSPA has been made complex with most political parties (including left parties and Congress) in f avour of pull-out of army but they are not in favour of repeal of AFSPA or its revocation where army has been deployed.

However, even this leaves much to be desired because there is another section of the Armed Forces which favours the a rmy’s induction in internal security affairs since power and pelf accompanies such a role. This section also happens to out-number those who are against it. This view is not only the official position; the army is engaged in honing its counter- insurgency skills as shown in its doctrine of sub-conventional warfare and doctrine of perception management (an important part of counter-insurgency). Something unstated is also the fact that “disturbed areas” provide the army an occasion to shake off civilian control and garner r esources. Thus the call for pull-out of the army can and has also been countered by saying that Article 355 of Constitution read together with 2(A) of the Union List empowers central government to deploy central forces in situations of internal

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security. And further, whatever may have been the cause, once there is a rebellion, it has to be put down, if need be by the army. So a fait accompli is offered to us.

Thus it is abundantly clear that a piece-meal approach, either demanding the re-peal of AFSPA or withdrawal of the army, is not without problems and does not ade-quately address the problem. I am remind-ed of what happened when the Prevention of Terrorism Act, 2002 (POTA) was re-voked. We were told by many a progressive commentator to be happy with the half vic-tory since confession to police, while in their custody, was dropped. What these progressives failed to realise was that the rest of the Prevention of Terrorism Act (POTA) got incorporated in the Unlawful Activities Prevention Act, 1967 (that got further strengthened in 2004 and then again in 2008) and which by now has become more lethal a threat than the Ter-rorist and Disruptive Activities (Preven-tion) Act or POTA.

Take another example. The Indian gov-ernment offered a sop to people after the rape and murder of Manorama Devi by the Assam Rifles in the shape of with-drawal of the AFSPA from Imphal. The result was that instead of the Assam Rifles, now the Manipur Commandos carry out killings in Imphal (and elsewhere too) since they enjoy protection provided by the state government. Thus AFSPA may not be in operation in Imphal but condi-tions in Imphal are no different, and no better, than elsewhere in Manipur, the point being that, very often, a half meas-ure ends up biting us and leaves us worse off than before.

Of Armed Struggle

Will this mean that non-state groups can continue fighting while the state demili-tarises? I doubt it. No to war against our own people robs even non-state actors of their source of legitimacy. If the state does not wage war, i e, there is no pro-longed deployment and empowerment of military forces against our own people, why would people or any political group take up arms? If there is a possibility of non-violently resolving matters, includ-ing the prospect of transforming state and society, why would anyone take to armed resistance? There is no natural

propensity of people to opt for armed re-sistance. Indeed, the likelihood of people taking to arms is directly linked to the Indian state’s propensity to use military suppression as the mother of all policies against popular movements demanding either right of self-determination or radi-cal transformation.

But are there not groups which possess weapons or believe in armed resistance? Mere possession of weapons does not mean declaration of war against the state. Also, opting for armed resistance is never an automatic choice; rather it is a proposi-tion which is contested and debated with-in revolutionary parties and liberation groups prior to the decision being taken. In an interview given to The­ Hindu (14 April 2010) Cherukuri Rajkumar (Azad) said that it was the “imposition of the ban [against the CPI(Marxist-Leninist) (Peo-ple’s War)] that had led the Party and the mass organisations to take up arms in the first place…What shook the rulers at that time and compelled them to declare Jag-tyala and Sircila taluks in Karimnagar dis-trict of North Telengana as disturbed are-as in 1978 was not the armed struggle of the Maoists (which had suffered a com-plete setback …by 1972) but the powerful anti-feudal order in the countryside….” Were the State not to wage war against people, the chances of debate veering towards armed resistance get reduced.

It is also worth remembering that there are, according to International Action Network on Small Arms, an estimated 40 million private weapons in India. It does not require rocket science to believe that these tens of millions of weapons are mostly in the possession of people in Indi-an society who wield power and are privi-leged. This reality, and an India, which for

all its verbosity about non-violence, is one of the most heavily armed states, both in terms of accumulation of destructive pow-er of its arsenal as well as size of its mili-tary force, which gets force multiplied by draconian laws, and thus enables the rul-ing classes to remain lukewarm/indiffer-ent to the inhuman working and living conditions of the majority of our people. Therefore, I believe we should be pitching for something that helps us focus on the fundamental concern and not its symp-tom (militancy being in essence a mani-festation against oppression) to enable us to argue for a peaceful and democratic way out. We should therefore say “No to War against Our Own People”.

In other words, 10 years of Irom Shar-mila’s heroic fast and more than four dec-ades of struggle against the AFSPA should convince us that the time has come to de-mand an end to war against our own peo-ple as the most principled and realistic stance. Once we accept legitimacy of wars against our own people, we enable the State to argue for AFSPA, Disturbed Areas Acts, etc. Of course, those who believe that AFSPA alone should be repealed but wars against our own people should carry on will oppose this because they believe that no state can allow any non-state group to overthrow it. But they must have the courage of conviction to come out and say so rather than hide behind the façade of being “pacifist” while intellectu-ally supporting the policy of military sup-pression and the blood-letting that en-sues. But those of us who argue that the State must give up prosecuting wars against our own people must seriously consider a course correction lest we are led to “desolation row” through a piece-meal effort.

CIVIL LIBERTIES

Supreme Court on Armed Forces Act A G Noorani

So wide is the sweep of the Armed Forces (Special Powers) Act, 1958 and so shorn is it of any curb on excess or any sense of proportion that it amounts to a licence to kill In November last the Supreme Court upheld the constitutionality of the act.

AMNESTY International's Annual Report for 1998 has, in its section on India a brief para which tells all it thinks of the subject: "In November, the Supreme Court upheld the constitutionality of the Armed Forces (Special Powers) Act - which gives the security forces powers to shoot to kill with virtual impunity - after hearing petitions field in 1980 and 1982". The criticism is perfectly justified.

Next only to TADA, no other statute earned India such opprobrium as this one did. It has Figured in the proceedings of the UN Human Rights Committee more than once (see A G Noorani 'Draconian Statute', EPW, July 5, 1997). As on TADA, the Supreme Court upheld the constitutional validity of the act but offered some crumbs by way of directions to the government . (Naga P e o p l e ' s Movement of Human Rights v/s Union of India (1998) 2 Supreme Court Cases 109.) The writ petitions were filed in 1980, 1982, 1984, 1985 and 1991. The judgment was delivered on November 27, 1997. Section 4 of the act defines the "special powers of the armed forces". They are available to "any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces" in the area.

Four such powers are explicitly listed -destruction of arms dump, prepared or fortified position or shelter' from which armed attacks are made or 'are likely to be made' or 'used as a hide-out' - all on the sole assessment of the officer concerned, arrest without a warrant of one who has committed or "is about to commit a cognisable, offence", provided there is 'reasonable suspicion' , enter and search premises. Besides these three there is the notorious licence to kill' embodied in Section 4(a) which reads thus: "If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or things

capable of being used as weapons or of fire arms, ammunition or explosive substances". This is a licence to kill; so wide is its sweep, so shorn as it is of any curb on excess or any sense of proportion. It covers the man who holds a 'lathi' as well as one who carries a pistol, It covers even a peaceful assembly, meeting or protest demonstration even if the participants are unarmed. Even the nature of the warning is left to the officer's discretion - such due warning as he may consider necessary.

Note the callousness. The amplitude of the power is not limited. It extends "even to the causing of death". But no limit or condition to its exercise is provided; not even a pretence of force proportionate to the occasion.

The person arrested is to be handed over to the police by the armed forces "with the least possible delay" together with a report (Section 5). There is the usual bar of suits and prosecutions for things done under the act "in good faith", Under the General Clauses Act, 1897 even negligent acts qualify for that description. It precludes malafides which is even hard to prove.

The Supreme Court ' s judgment was delivered by Justice S C Agrawal on behalf of a unanimous Constitution bench of five judges. There is a tangible gain for federalism. Section 3 empowers the central as well as the state governments to declare the whole or any part of the state "to be a disturbed area". The court ruled: "We are unable to construe Section 3 as conferring a power to issue a declaration without any time-limit. The definition of 'disturbed area' in Section 2(b) of the Central Act talks of 'an area which is far the time being declared by notification under Section 3 to be a disturbed area' (emphasis supplied). The words 'for the time being' imply that the declaraiton under Section 3 has to be for a limited duration and cannot be a declaration which will operate indefinitely, It is no doubt true that in Section 3 there is no requirement that the declara t ion should be rev iewed periodically. But since the declaration is intended to be for a limited duration and a declaration can be issued only when there is grave situation of law and order, the making of the declaration carries within it an

obligation to review the gravity of the s i tuat ion f rom t ime to t ime and the continuance of the declaration has to be decided on such a periodic assessment of the gravity of the situation, During the course of the arguments, the attorney general has made the following statement indicating the stand of the union of India in this regard:

It is stated on behalf of the government of India that it keeps all notifications it has issued under the Armed Forces (Special Powers) Act, under constant review. It states that even in future while the notifications themselves may not mention the period it will review all future notifications within a period of at the most one year from the date of issue, and if continued, within a period of one year regularly thereafter. As far as the current notifications are concerned, their continuance will be reviewed within a period of three months from today. The government may also review or revoke the notifications earlier depending on the prevailing situation.

The government gave this assurance of annual review. The matter rests there.

However, the court made two very important observations:

A situation of internal disturbance involving the local population requires a different approach. Involvement of armed forces in handling such a situation brings them in confrontation with their countrymen. Prolonged or too frequent deployment of armed forces for handling such situations is likely to generate a feeling of alienation among the people against the aimed forces who by their sacrifices in the defence of their country have earned a place in the hearts of the people. It also has an adverse effect on the morale and discipline of the personnel of the armed forces. It is, therefore, necessary that the authority exercising the power under Section 3 to make a declaration so exercises the said power that the extent of the disturbed area is confined to the area in which the situation is such that it cannot be handled without seeking the aid of the armed forces and by making a periodic assessment of the

situation after the deployment of the armed forces the said authority should decide whether the declaration should be continued and, in case the declaration is required to be continued, whether the extent of the disturbed area should be reduced (Italics mine throughout).

The court ruled that while the union retains control of its armed forces deployed in the state, they cannot supplant or substitute the civil authorities of the state. They are to act in aid of the civil power of the state so that its authority is restored; not, to supplant it.

What is most disappointing is the court's refusal to 'read down' Section 4(a) - the licence to kill - by insisting on the principle of proportionality. It has left this obnoxious provision intact.

1682 Economic and Political Weekly July 4, 1998

As regards clause (a) of Section 4 the submission is that it empowers any commis-sioned officer, warrant officer or non-commissioned officer or any other person of equivalent rank in the armed forces to fire upon or otherwise use force even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or things capable of being used as weapons or of fire-arms, ammunition or explosive substances. It has been urged that the conferment of such a wide power is unreasonable and arbitrary. We are unable to agree. The powers under Section 4(a) can be exercised only when (a) a prohibitory order of the nature specified in that clause is in force in the disturbed area; (b) the officer exercising those powers forms the opinion that it is necessary to take action for maintenance of public order against the person/persons acting in contravention of such prohibitory order; and (c) a due warning as the officer considers necessary is given before taking action. The laying down of these conditions gives an indication that while exercising the powers the officer shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order, in the circumstances, it cannot be said that clause (a) of Section 4 suffers from the vice of arbitrariness or is unreasonable,

Is it enough to point to the 'indication'? The court should have laid down stringent curbs such as danger to life by an armed assembly. As it stands even an unarmed violator of a curfew order can be shot out off hand.

The warning is left to the off icer ' s discretion. The amplitude of the power to cause death is not qualified by insistence on force proportionate to the occasion, What if it is an unarmed assembly? The Supreme Court has failed dismally on the gravest defect in the act. It is shocking ruling. The criticisms are not fairly met.

It is the same in regard to the power to destroy properly.

Section 4(b) confers the power to destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made or any structure used in training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence. It is urged that the said power is very wide in its scope and that apart from destruction of any arms dump, fortified positions, shelters and structures used by armed groups for attacks, it extends to destruction of a structure utilised as a hideout by absconders wanted for any offence and that, to that extent, it is invalid, We do not find any merit in this contention. Absconders wanted for an offence are

persons who are evading the legal process. In view of their past activities the possibility of their repeating such activities cannot be excluded and the conferment of the power to destroy the structure utilised as a hideout by such absconders in order to control such activities cannot be held to be arbitrary or unreasonable,

In Kashmir para-military forces of the centre have torched or raised to the ground whole buildings in order to 'snuff out' a few militants suspected of hiding in them.

Prosecution of offending personnel is subject to the sanction of the government. The court has ruled

We are of the view that since the order of the central government refusing or granting the sanction under Section 6 is subject to judicial review, the central government shall pass an order giving reasons.

But what of the bar to prosecutions altogether in respect of acts done 'in good faith'?

Homilies to governments by courts of law are of limited value since governments are notoriously cynical. The army headquarters have issued a 'List of Do's and Dont's while acting under the Act' which is reproduced in the judgment. Welcome as they are, it is sad that the Supreme Court totally failed to restrict the ambit of the power to kill which has been criticised all over the world by those who study the human rights situation in India.

Economic and Political Weekly July 4, 1998 1683

discussion

september 12, 2009 vol xliv no 37 EPW Economic & Political Weekly70

creating “an openly pro-capitalist state”, we read the shift as one from an interven-tionist state that plans and directs India’s economy to a regulatory state that attempts to constrain and improve a market econo-my. In the process India’s economy moved from a 3.5% “Hindu rate of growth” to rates of 8% and 9%. Ironically, India’s post-1991 regulatory state has done better in dealing with the recent global economic recession than the US or European Union regulatory states because the Communist Party of India (Marxist) blocked Manmohan Singh’s United Progressive Alliance government from allowing reckless and irresponsible western banks and insurance companies to operate in India’s markets.

This brings us to the last of our challen-ges to what Zoya Hasan has to say about our view of the meaning and consequences

of centrism. “By far the most disturbing as-pect of the analysis is the attribution of the centrist institutional logic to the Bharatiya Janata Party (BJP)…Communal violence in Gujarat in 2002 put paid” to the expecta-tion that centrist institutional logic “would contain the more extreme and dangerous elements of the Hindutva brigade” (p 26). But did it? After its defeat in the 2004 na-tional election, the BJP continued to lose vote and seat shares in the recently con-cluded 2009 national election. The pros-pect of Narendra Modi as the BJP’s heir ap-parent and the effect of his campaigning in UP is said to have contributed to the BJP’s electoral decline. Yashwant Sinha, a party vice-president, in his resignation letter to BJP the President, Rajnath Singh, suggested that the party courted defeat by ignoring “the voting behaviour of the minorities”.4

Similarly, Brajesh Mishra, National Security Adviser to former BJP Prime Minister, Atal Behari Vajpayee, warned the BJP that it “will never come back to power without a more inclusive agenda”.5 These responses by leading BJP party spokesmen suggest that the party resists the centrist logic of Indian electoral politics at its peril.

Notes

1 Lloyd I Rudolph and Susanne Hoeber Rudolph, The Political Economy of the Indian State (Chicago: University of Chicago Press; Bombay: Orient Longman), 1987.

2 We showed how organised labour and capital were weakened by a process of “involuted plural-ism”, a term explained and applied to organised capital and labour in Rudolph and Rudolph, In Pursuit of Lakshmi, pp 247 ff.

3 Much of the language in this paragraph is taken from page 23 of In Pursuit of Lakshmi.

4 http://news.rediff.com/news/2009/ju/13/yashwant-sinha-letter-to-bjp-president.htm.

5 http://news/rediff.com/report/2009/ju/13/negatvism-in-bjp-campaign-defeated-it-brajesh.

Terrorism and Human Rights Laws: A Comment

U C Jha

There are many myths about the Armed Forces (Special Powers) Act. This note responds to two recent articles in EPW on this issue.

The two articles, “Terrorism and Human Rights: Indian Experience with Repressive Laws” by G Hara-

gopal and B Jagannatham (11 July 2009) and “Armed Forces (Special Powers) Act: Urgency of Review” by A G Noorani (22 August 2009) are misleading.

This comment is restricted to the dis-cussion on the Armed Forces (Special Powers) Act (AFSPA), referred as one of the repressive laws in India.

The authors have commented that “the AFSPA guarantees impunity…confers exemplary power…and the armed forces hardly realise while posted in sensitive a reas they (should) win over the people”. This article and many others in the last two decades have distorted the image of the Indian armed forces world over and created a feeling that they are accused of extra-judicial execution of innocent civilians, illegal imposition of curfew, rape, molestation and sexual harassment and torture under the powers vested in them by the AFSPA. Certain

myths and realities related to the AFSPA are as follows.

Myth 1: AFSPA covers the entire north-east and the Jammu and Kashmir (J&K).

Reality: The AFSPA is applicable only in certain parts of the north-east and the J&K. For example, in Meghalaya, the A FSPA is applicable only in a 20 km range along the Assam border. In Arunachal Pradesh, the AFSPA is applicable in the two eastern districts of Tirap and Changlang, which have been declared as “disturbed area”. Same is the case with the J&K.

Myth 2: The armed forces get arbitrary power while functioning under the AFSPA.

Reality: The provisions of the AFSPA and the safeguards that accompany its imposition are intended to prevent the possibility of any arbitrariness in the exercise of power under the act. The provisions of the A FSPA can be applied only when (1) the central government is satisfied that the normal law and order situation has deteriorated to the extent that it can be considered a disturbed area; and (2) the state police force is not in a position to stop infiltration or undesirable forces. In the case of Naga People’s Movement of Human Rights vs Union AIR 1998 SC 431, the S upreme Court held that the powers

U C Jha (ucjha1@rediffmail.com) has been a visiting fellow at the Centre for the Study of Law and Governance, JNU, New Delhi.

discussion

Economic & Political Weekly EPW september 12, 2009 vol xliv no 37 71

conferred on the o fficers and non-commis-sioned officers (NCOs) under AFSPA are not arbitrary and unreasonable, and are not vi-olative of the provisions of Articles 14, 19 and 21 of the Constitution. Thus, there are ample safeguards to prevent the wanton abuse of power conferred by the AFSPA.

Myth 3: While operating under the AFSPA, the armed forces do not cooperate with the civil authorities.

Reality: The AFSPA also contemplates that in the event of the deployment of the armed forces, the said forces will operate in the state concerned in cooperation with the civil administration, so that the situation which has necessitated the deployment is dealt with more effectively and normalcy is restored faster. Even in a disturbed area, the civil law has to be followed. An order under Section 144 of the CrPC must be in force before the powers under Section 4 of the AFSPA can be exercised. Before exercis-ing the powers under the act, a warning is required to be given to those who are vio-lating the law. The military person exercis-ing the powers is answerable for any breach in the policy d irectives issued by the army.

Myth 4: Drastic powers have been con-ferred on low-ranking officials like NCOs.

Reality: In the armed forces, a non- commissioned officer holds a responsible position. When troops are deployed, the sections/ patrols, which go for search and patrolling operations, are commanded by a trained NCO. In isolated places/remote areas, while encountering insurgents, NCO is expected to take a decision as re-gards the suitable use of force in the par-ticular situation, for which he is trained. We never question his capability in war or during the natural calamity.

Myth 5: The armed forces working under the AFSPA are biggest human rights viola-tors and not accountable to the National Human Rights Commission (NHRC).

Reality: The Indian armed forces have by now established a proud and enviable record of compliance with the dictates of inter-national standards, to which their military manual by and large conforms. The Indian

armed forces have participated in about more than 70 United Nations peacekeeping missions. They have been lauded for their humane treatment of c ivilians the world over. Since, 1993, the NHRC has been actively monitoring the v iolations of human rights in the country. There have been a few cases of human rights violations by members of the armed forces, where the commission has di-rected the payment of compensation/interim r elief to the victims/next-of-kin of d eceased. The NHRC has also taken cognisance of the action taken by the armed forces against its members accused of h uman right violations.

Since March 1993, a human rights cell has been functioning in the army headquarters under the additional director general (dis-cipline and vigilance). In the last 15 years, it has received more than 1,200 cases from the north-east and J&K for alleged viola-tion of human rights. Only 54 cases have been found true, wherein 115 personnel have been punished and in 17 cases com-pensations have been awarded. The army has also extended all forms of assistance towards the rehabilitation of the victims. The legal machinery in the country has not shirked its responsibility in ensuring suita-ble action in cases where the law has been violated. The Supreme Court in Sebastian M Hongray AIR 1984 SC 1026, has awarded an exemplary fine on the government, where the government failed to produce two persons arrested by the armed forces.

Myth 6: AFSPA grants total immunity to the armed forces personnel.

Reality: The AFSPA does not grant immunity to the members of the armed forces. Section 6 of the AFSPA only requires that permission to be taken from the central government be-fore prosecution. This does not amount to the granting of immunity to members of the armed forces. It does not suffer from arbi-trariness as the order of the central govern-ment refusing or granting sanction under Section 6 is subject to judicial review. Sec-tion 6 of the AFSPA was reviewed in the case of Indrajit Barua vs Union of India AIR 1983 Del 513. The Delhi High Court justified this provision on the grounds that it prevents the filing of “frivolous claims”.

Myth 7: The AFSPA, by its form and appli-cation, violates the Universal Declaration

of Human Rights (UDHR) and the Inter-national Covenant on Civil and Political Rights (ICCPR).

Reality: The Second Periodic Report u nder the ICCPR was submitted by India to the UN Human Rights Committee in March 1991. The committee pointed out that Section 4 of the AFSPA is incompatible with Articles 6, 9 and 14 of the ICCPR. In res ponse, the at-torney general of India justified the AFSPA under Article 355 of the I ndian Constitution, which makes it the duty of the union to pro-tect each state from external aggression. He said the A FSPA was necessary, given the con-text of the north-east, where there is “infiltra-tion of aliens into the territories mingling with the local public, and encouraging them t owards this [secession]”, and, “that the ICCPR does not encourage secession and gov-ernments are not encouraged to p romote it”.

Myth 8: AFSPA is a symbol of oppression, an object of hate and an instrument of high-handedness.

Reality: The central government had appoin-ted a five-member committee headed by the Supreme Court Judge B P Jeevan Reddy to examine whether the AFSPA is r equired. The government had neither accepted nor reject-ed the report which was submitted in 2005. The entire report has not been made public, but various non-governmental organisations have selectively quoted a portion of it (which was available on the web site of a promi-nent newspaper): “…for whatever reasons, [AFSPA] has become a symbol of oppres-sion, an object of hate and an instrument of discrimination and high-handedness”.

However, other portions of the report are never discussed: “...though an over-whelming majority of the citizen groups and individuals pleaded for the repeal of the Act, they were firmly of the view at the same time that the Army should remain to fight the insurgents.”

The armed forces need special legal pro-tection and powers in the areas where they operate. Special legislation is necessary “from the point of view of morale and operational efficiency to protect the rights of soldiers”. While engaging in counter-insurgency opera-tions, the Indian armed forces have been maintaining the principles of “minimum force” and avoidance of “collateral damage”.

Dear Delegates,

This file contains additional reading material that would be useful for your research for the

committee. The study guide is merely a reference for your research and should not be your only

source. This reading material will help you get a further insight into the debate surrounding the

agenda. It has not been arranged in any particular order and some of the facts might have been

updated hence do go through them carefully.

Cheers!

Executive Board

Lok Sabha NMUN 2018

Chapter - 3

Uniform Civil Code and The Constitution of India

Chapter - 3

Uniform Civil Code and the Constitution of India

Personal laws attracted the attention of the Constituent

Assembly and heated debates in favour of Uniform Civil Code

and against it took place. The Uniform Civil Code was debated

under Article 35. Muslim members strongly opposed it whereas

most of the Hindu members supported it. B.R. Ambedkar opined

in favour of interference in personal laws. This researcher has

taken into account whole controversy in the light of the

Constitution of India and drawn conclusions impartially.

A. Constituent Assembly Debates and Uniform Civil Code

Soon after independence the question of the position of

personal laws got entangled into the whirlpool of national politics.

On the floor of the Constituent Assembly, for about two years,

the issue suffered convulsions caused by the utterances of

progressive legislators, dissenting voices of their so called

conservative brethren, apprehensions echoed by the spokesmen of

the minorities, and bricks and buckets thrown from outside by

laymen and law-men.'

The Constituent Assembly Debates in the constitution making

process revealed that the constitution makers debated the

Uniform Civil Code and The Constitution of India

concept, relevance and utility of the Uniform Civil Code. The

Muslim members of the Constituent Assembly opposed the move

with all possible intensity at their command. In this background,

the arguments for and a quest for the objective evaluation of the

Uniform Civil Code, will not be out of place in India which is

known for its religious, cultural and lingual diversities. The

Constituent Assembly had its first meeting in December 1946.

However just after the freedom of India from the grip of British

imperialist, the place and shape of personal laws in the future legal

order in the country got much entangled into the whirlpool of

national politics. Framers of the constitution envisage to estabhsh

a Sovereign, Democratic, Republic - ideas based on the ideas of

justice, liberty, equality and fraternity. Later on, in 1976, words

'secularism' and 'socialism' were added to the Preamble.

Fundamental rights especially regarding the right of freedom to

religion was designed in our Constitution before its

commencement in 1950. Since then, in the Constituent Assembly

as well as on every platform, a great deal of discussion on

personal laws has taken place repeatedly. Even prior to the

commencement of the Constitution much was debated in the

Constituent Assembly for and against the personal laws.^

i) The attitude of the antagonists

The Constituent Assembly debated the Uniform Civil Code

under Article 35. Mohammad Ismail from Madras moved the

[ 5 1 ]

Uniform Civil Code and The Constitution of India

following proviso for addition to Article 33 which provided that

'any group, section or community of people shall not be obliged

to give up its own personal law in case it has such a law'. He

advocated that the right to adhere to ones own personal laws was

one of the fundamental rights. He asserted that personal laws were

a part of the way of life of the people. In his evaluation, personal

laws were the part and parcel of religion and culture. Any

interference with the personal laws, in his view would tantamount

to interference with the very way of life of those who had been

observing such laws from generation to generation. He elucidated

that India was emerging as a secular state and it must not do

anything which hinder the religious and cultural ethoes of the

people. To strenghten his argument, he cited precedents of

Yugoslavia, the Kingdom of Serbs, Croats and Slovenes which

were obliged under treaty obligations to guarantee to Muslims

being in minority in the matter of family laws and personal status :

"The Serbs, Croats and Slovene States agree to grant

to Mussalmans in the matter of family law and

personal status, provisions suitable for regulating

these matters in accordance with Mussalman usage."^

To enrich his arguments, he named similar protective clauses

of other European constitutions which dealt with the minorities.

However, he pointed out that such clauses were narrow in scope

as they dealt with any group, section or community of the people

[ 5 2 ]

Uniform Civil Code and Tlie Constitution of India

and not confined to minorities only. His proposed amendments

read :

"That any group, section or community of the people

shall not be obliged to give up its personal law in

case it has such a law."

His proposed amendments sought to secure the rights of people

in respect of their existing personal laws. He contended that in

favour of the Uniform Civil Code was counter productive and the

discontentment and faithfulness would be the natural result. By

following their own persnal laws, people of different caste and

communities would not be in conflict with each other."* The

argument of Mohd. Ismail was objected by H.C. Majumdar,

another member of the Constituent Assembly, who contended that

the proposed amendment was in direct negation of Article 35. His

objection was sustained by the Vice-President and Mohd. Ismail

could not succeed. Another member of the Constituent Assembly

Nazir Alimad moved a proviso to article 35 which read :

"Provided that the personal law of any community

which has been guaranteed by the statutes shall not be

changed except with the previous approval of the

community ascertained in such a manner as Union

legislature may determine by law."

He further remarked that the Uniform Civil Code would create

inconvenience not only to Muslims but to all religious

153 ]

Unifoim Civil Code and The Constitution of India

communities who had religion oriented laws. He further pointed

out that the very concept of Uniform Civil Code clashed with the

religious and cultural freedom guaranted to every citizen. He was

also apprehensive that under Article 35 the state may violate the

religious freedom of the citizens.

Surveying the legal developments in the Indian subcontinent,

he pinpointed certain provisions of the Civil Procedure Code,

1908 which had already interfered with the Muslim Personal Law.

However, the British administration, as he pointed out, during its

175 years rule, did not interfere with the institution of marriage,

dower, divorce, maintenance, guardianship, paternity and

acknowlegement, administration of estate, wills, gifts, waqf and

inheritence. Whatever laws were enacted in the area of Muslim

Personal Law during the British administration of justice were

mostly on the initiative of Muslim community.^ He put a note of

caution in these words :

"What the British in 175 years failed to do or was

afraid to do. What the Muslims in the course of 500

years refrained from doing, we should not give power

to the state to do at all once... I submit Sir, that we

should proceed not in haste but with caution, with

experience, with statesmanship and with sympathy."

Another member, Mahboob Ali Beg sahib Bahadur moved

the following proviso to Article 35 :

[ 5 4 ]

( A.CC ^ ' ' ^ ^ T - S 73 U '̂1̂ '̂ JI'T™ Civil Code and The Constitution of India

Providecrtn^^notning in this article shall affect the

personal law of the citizen."^

Mahboob Ali Beg emphasized that the civil code spoken of

in Article 35 did not include family law and inheritence but since

some people have doubts about it should be made clear by a

proviso to assure that the civil code would cover transfer of

property, contract, etc., but not matters regulated by personal

laws. He also claimed that secularism did not negative diversity in

Personal laws.^ M.A. Ayyanger, member of the Constituent

Assembly intervened and remarked on it as a matter of contract.

Ayyanger tried to put his argument forcefully and asserted that the

matrimonial contract was enjoined by the Holy Our'an and the

Traditions of the Prophet (SAW). He stated that the Indian

concept of secularism tolerated the existence of all religions with

equal honour and dignity. He emphasised that in secular state like

India, different communities must have the freedom to practice

their own religion and culture, and they should be allowed to

observe their own personal law. B. Pocker Sahib another Muslim

member of the constituent Assembly while supporting the motion

proposed the following provisio to Article 35.

"Provided that any group, section or community of

people shall not be obliged to give up its own

personal law in case it has such a law."

He laid emphasis on the following points :

[ 5 5 ]

Uniform Civil Code and Tlie Constitution of India

(a) One of the 'secrets of the success' of the British rulers and

the basis of their judicial administration was retention of

personal laws;

(b) If the civil code was intended to supersede the provisions of

the various civil code laws guaranting application of personal

laws to cases of family law and inheritence, etc.. Article 35

should be termed as 'tyrroneous provision'; and

(c) No community favoured uniformity of civil laws.

Organisations - both of Hindus and Muslims, questioned the

competence of the Constituent Assembly to interfere with

religious laws. Article 35 was thus, antagonistic to religious

freedom.^ Hussain Imam, too expressed similar views and pointed

out:

"India is too big a country with a large population so

diversified that it is almost impossible to stamp them

with one kind of anything. In the north, we have got

extreme heat. In Assam we have got more rain than

anywhere in else in the world...."

In Rajputana desert we have no rain. In a country

so diverse. Is it possible to have uniformity of civil

laws? ... We have ourselves provided for -

Concurrent jurisdiction to the provinces as well as

to the centre in matters of succession, marriage,

[ 5 6 ]

Uniform Civil Code and The Constitution of India

divorce and other things. How is it possible to have

uniformit when there are 11 or 12 legislative bodies ...

to legislate on subject according to requirements of

their own people?'^

He further argued and appealed :

"The apprehension felt by the members of minority

community is very real. Secular state does not mean

that it is anti-religious but non-religious and as such

there is a word of difference between irreligious and

non religious. I, therefore, suggest that it would be a

good policy for the member of the Drafting

Committee to come forward to such safeguards in

this proviso as will meet the apprehension genuienly

felt and which people are feeling and I have every

hope that ingenuity of Dr. Ambedkar will be able to

find a solution to this."^°

The above account of the opinions expressed by Muslim

members shows two different opinions. While Naziruddin Ahmad

and Hussain Imam visualized the possibility of having uniform

family law sometime in future the other speakers ruled out the

possibility of having a Uniform Civil Code for all time to come.

Thus, members of the minority strongly argued for exclusion of

personal laws from the ambit of the Uniform Civil Code.

[ 5 7 ]

Uniform Civil Code and The Constitution of India

Nevertheless, despite their convincing arguments and deep

resentment, they could not succeed. They only got some

assurance from Dr. B.R. Ambedkar.

(ii) The attitude of protagonists

Many members of the Hindu community expressed their

opinions contrary to the views of Muslim members. K.M. Munshi

expressed the following views.

(A) Even in the absence of Article 35 it would be lawful for

Parliament to enact a uniform civil code, since the article

guaranteeing religious freedom gave to the state power to

regulate secular activities associated with religion.

(B) In some Muslims countries, for example, Turkey and Egypt

personal laws of religious minorities were not protected;

(C) Certain communities amongst Muslims, for example, Khojas

and Memons did not want to follow the Shariat, but they

were made to so under the Shariat Act, 1937;

(D) European countries had uniform laws applied even to

minorities;

(E) Religion should be divorced from personal law; The Hindu

Code Bill did not conform in its provisions to the precepts

of Manu and Yajnavalkya;

(F) Personal laws discriminated between person and person on

the basis of sex which was not permitted by the Constitution;

[ 5 8 ]

Unifonn Civil Code and Tlie Constitution of India

(G) People should outgrow the notion given by the British that

personal law was part of religion."

Conclusively, he beseeched to divorce religion from personal

laws.

"We want to divorce rehgion from personal laws from

what may be called social relations or from the rights

of the parties as regards inheritence or succession.

What have these things got to do with religion, we

really fail to understand."

He advised Muslim brethren in these words.

"I want my Muslim friends to realise this that the

sooner we forget this isolationist outlook on life, it

will be better for the country. Religion must be

restricted to spheres which legitimately appertain to

rehgion, and the rest of life must be regulated, unified

and modified in such a manner that we may evolve, as

early as possible into a strong and consolidated

nation."

A.K. Iyer, a member of the Constituent Assembly, supported

K.M. Munshi and urged the assembly to pass the article dealing

with the Uniform Civil Code. He explained the scope of Uniform

Civil Code :

'A Civil Code ... runs into every department of civil

relations to the law of contract, to the law of

[ 5 9 ]

Uniform Civil Code and The Constitution of India

property, to the law of succession, to the law of

marriage and similar matter.'^^

The Assembly passed the article accordingly, brushing aside

the proposal of the Muslim members for the exclusion of personal

laws from the ambit of Uniform Civil Code. In the words of Prof.

Tahir Mahmood :

"I want to point out that Mohd. Ismail, Hussain

Imam, Mahboob Ali Beg and Naziruddin Alimad had

the same status in the Constituent Assembly as Hans

Mehta, H.C. Majumdar, K.M. Munsi and A.K. Iyer

whose opinion prevailed is a different matter."'^

Dr. B.R. Ambedkar although did not accept the amendments

and defended the right of the state to interfere in the personal laws

of different communities. He defended laws of different

communities. He defended the arguments of Hindu members of

the Constituent Assembly. But the same time he also gave some

assurances to the Muslim members and he explained that the

proposal was creating only a 'power' not an 'obligation', and

closed the debate with these memorable words :

'Sovereignty is always limited, no matter even if you

assert that it is unlimited, because sovereignity in the

exercise of power must reconcile itself to the

sentiments of different communities. No government

can exercise its power in such a manner as to provoke

[ 6 0 ]

Uniform Civil Code and The Constitution of India

the Muslim communit to rise in rebellion. I think it

would be a mad government if it did so. But that is a

matter which relates to exercise of power and not the

power itself'*

Besides, the above observation Dr. Ambedkar persuaded the

Muslim members "Not to read too much into Article 44". He

affirmed even if the Uniform Civil Code was implemented it would

be applicable to those who would consent to be governed by it.'-̂

B. Personal Laws and the Constitution of India

The Constitution of India empowers the Legislature to

legislate with respect to family relations governed by the personal

laws by a Common Civil Code. With the enactment of the Hindu

Code to replace significants segments of the customary Law of

the Hindu Law, the demand for a Common Civil Code on the one

hand and for the reform of the Muslim Personal Law on the other,

has gained momentum. Enactment of a Common Code is

recommended for a wide variety of reasons, which include

averting communal riot and acceleration of the process of

National Integration. While replacement of Muslim Law by a

Common Civil Code has provoked intense opposition from a

section of Muslims. Not all the advocates of the reforms are for

replacement of Muslim family law, nor all their opponents, in India

are scholars of Muslim Law. They do not conduct the debate on

sound and sober lines. Consequently, the real issues are lost in a

[61 ]

Uniform Civil Code and The Constitution of India

whirlpool of non issues. We have already seen in the preceeding

section how the debate took in relation to Uniform Civil Code.

How after heated discussion the Article 35 of the draft

constitution (Now Article 44) was incorporated in the Indian

Constitution. Dr. Ambedkar the Chairman of the drafting

Committee while supporting the inclusion of the provisio of

Uniform Civil Code assured the members that they should not

read too much into Article 44". he also assured the Muslim

members that even if the Uniform Civil Code was implemented it

would be applicable only to those who would consent to be

governed by it.

The Constitution of India guarantees the religious and cultural

freedom to every citizen of India Article 25 (1) states :

"All persons are equally entitled to freedom of

conscience and the right freely to profess, practice

and propagate religion."

Article 26 states :

"every religious denomination or any section thereof

shall have the right : (a) To establish and maintain

institutions for religious and charitable purposes; (b)

To manage its own affairs in matters of religion";

Article 29 (1) states :

"Any sections of the citizens ... having a distinct

lagnuage, script or culture of it sown shall have the

right to conserve the same".

[ 6 2 ]

Uniform Civil Code and The Constitution of India

Religion is the matter of faith and conscience. The culture

and civilization incorporate the religious ethoes. Muslim Personal

Law being the very core of Islamic religious faith amalgamates in

itself'belief, 'practice'. Propagation'. The ambit of religious and

cultural freedom enshrined in Part III of the Constitution as the

fundamental rights covers the Muslims Personal Law.

Under Article 372, the Constitution of India ensures the

application of "all the law in force in the territory of India

immediately before" its commencement. The Muslim Personal

Law {Shariat) Application Act, 1937 is 'the law in force before

the comencement of the Constitution of India.'^

(1) Notwithstanding the repeal by this Constitution of the

enactments referred to in article 395 but subject to the other

provisions of the Constitution, all the law in force in the

territory of India immediately before the commencement of

this Constitution shall continue inforce therein until altered or

repealed or amended by a competent Legislature or other

competent authority.

(2) For the purpose of bringing the provisions of any law in

force in the territory of India into accord with the provisions

of this Constitution, The President may by such order make

such adaptation and modifications of such law, whether by

way of repeal or amendment, as may be necessary or

expedient, and provide that the law shall, as from such date

[ 63 J

Uniform Civil Code and The Constitution of India

as may be specified in the order, have effect subject to the

adaptations and modifications so made, and any such

adaptation or modification shall not be questioned in any

court of Law.

(3) Nothing in clause (2) shall be deemed :

(a) to empower the President to make any adaptation or

modification of any law after the expiration of three

years from the commencement of this Constitution; or

(b) to prevent any competent legislature or other competent

authority from repealing or amending any law adapted or

modified by the President under the said clause.

Explanation I.

The expression "law in force" in this Article shall include a

law passed or made by a legislature or other competent authority

in the territory of India before the commencement of this

Constitution and not previously repealed, notwithstanding. That it

or parts of it may not be then in operation either at all or in

particular areas.

The very letter and spirit of Article 372 of the Constitution

reveal that the Muslim Personal Law (Shariat) Application Act,

1937 which ensures and governs the application of Muslim

Personal law is the 'law in force' as it is enacted by the competent

legislture. Since its application, the Act has have been 'altered or

1 64 J

Uniform Civil Code and The Constitution of India

repealed or amended by the competent legislture or other

competent authority' till date, so that it is the 'law in force' or

'living law' according to Article 372 of the Constitution.'*

The phrase "all the law inforce" in this article includes

statutory, customary and, it seems, also personal laws.''^ The

language of Article 372(1) is analogous to section 292 of the

Government of India Act, 1935, which also recognised the

continued application of "all law inforce" then. The Federal

Court in United Provinces v. Atiqa,^^ had held that the phrase

included also non-statutory laws including personal laws. Even

after the commencement of the Constitution the High Courts of

Rajasthan,^^ Hyderabad,^^ Calcutta,^^ Madhya Pradesh^"^ and

Bomhay^^ have confirmed the applicability of Article 372 to

personal laws. This article, in any case, is the only provision of

the Constitution under which personal laws can be claimed to

have been recognized. If we do not apply it to personal laws,

those laws are left without any Constitutional recognition.^''

As regard the Constitutional postulate of continuity and

change in the matter of pre-1950 laws, at the time of the

commencement of the Constitution a variety of Personal laws

both codified and uncodified was applied to various religions and

ethnic communities. By virtue of Article 372 of the Constitution

all these laws, of every variety, got a statutory lease. It was not,

however, a perpetual lease. The period of lease for all such laws

extended till "further action", if any, by a "competent

[ 65 J

Uniform Civil Code and The Constitution of India

authority". As specified in Article 372(1), this "further action'

could be taken in the form of alteration, repeal, amendment, or

adaptation. The principal "competent authority" that could take

any such 'action' would, of course, be Parliament or a state

Legislature. An executive authority, however, could also exercise

the power of delegated legislation."

The question of the power of adaptation and modification of

the existing laws, conferred by Article 373 (2) on the President of

the Republic, could be exercised by him also in respect of an

uncodified law or custom has not been free from difficulty.

However, since that power was not exercised by the President

within the stipulated period of three years from the

commencement of the Constitution, this question is now more or

less redundant.^*

It should be remembered that all the three lists in schedule

VII of the Constitution of India also include subjects relating to

personal laws. They are as follows :

(i) Marriage and divorce; infants and minors; adoption; wills,

integracy and succession; joint family and partition; all

matters in respect of which parties in judicial proceedings

were immediately before the commencement of this

Constitution subject to their personal law.̂ '̂

(ii) Transfer of property other than agricultural land; registration

of deeds and documents.^"

[ 6 6 J

Uniform Civil Code and The Constitution of India

(iii) Charities and charitable institutions, charitable and religious

endowments and religious institutions.^^

List II (specifying the subjects on which state legisltures can

make law) includes burial and burial grounds," rights in or over

land" (covering succession to agricultural lands) and

administration of justice and organization of courts at the district

level.^"

In List I (mentioning subjects for parliamentary legislation)

the only entry relevant to Muslim law is "Pilgrimage to places

outside India.^^ Under this provision Parliament can make laws

regulating Haj and Ziyarat.

Thus, nearly the entire gamut of subjects which traditionally

falls within the ambit of personal law, has been placed at the

disposal of either the state Legislature or the Parliament.^'^

Summary

In post-independent India the status of personal laws got

politicised. For two years, the Constituent Assembly witnessed

heated debates in favour of and agaisnt Uniform Civil Code. In

fact the Uniform Civil Code divided the house on communal lines.

Muslim members opposed it while Hindu members strongly

supported the move.

The debates were carried on under Article 35 Mohammad

Ismail of Madras moved an amendment exempting any group or

[ 6 7 ]

Uniform Civil Code and The Constitution of India

community from being covered by such legislation. He cited

precedents of Serbs, Croat etc. where Muslims were assured to

have their own personal laws. Some members like H.C. Majumdar

contested the amendments on the ground that it negates Article

35. Objections were sustained and Mohd. Ismail's amendments

were over-ruled. Some other members also moved for

amendments but they failed despite strong pleas aand arguments.

Some of the Hindu members opined just opposite to Muslim

members. K.M. Munshi, A.K. Iyer and even Dr. B.R. Ambedkar

were most vocal in this regard. Dr. Ambedkar coldly suggested to

Muslim members, "not to read too much into Article 44" and

declared that Uniform Civil Code will be applicable only with their

consent.

No doubt Constitution of India empowers Parliament to enact

Uniform Civil Code. After enactment of Hindu Code the demand

for reforms in Muslim Personal Laws and Uniform Civil Code

gained momentum. Constitutionally all laws including personal

laws can be changed or amended. In reality personal laws are

placed within the purview of Parliament and legislature.

So far as the question of recognition of personal laws is

concerned, the Constitution does acknowledge the existence and

continuation of such laws under Entry 5 List III of Seventh

Schedule, together with Article 372.

[ 6 8 ]

Uniform Civil Code and The Constitution of India

References

1. Tahir Mahmood, Personal Laws in Crisis, p. 3(1986).

2. Zafar Ahmad, Personal Laws and Constitution of India : A Study in Contemporary Perspective with Special Reference to Dr. B.R. Ambedkar, p. 30 (unpublished, 1992).

3. Mohd. Shabbir, "Muslim Personal Law, Uniform Civil Code, Judicial Activism : A Critique", XII Alig. L.J. 1997, p. 47.

4. Constituent Assembly Debates H I , 549 (1948). See also Vasudha Dhagamvar, Towards the Uniform Civil Code, pp. 117-132(1989).

5. Supra note 3 at 48, A few examples are as follows : Dargah Khwaja Saheb Act 1936, Dissolution of Muslim Marriages Act 1939, Kazi Act 1880, Muslim Personal Law (Shariat) Application Act 1937, Muslim Marriage and Divorce Registration Act 1935, Muslim Dower Act 1920, Oudh Law Act 1876 and Musalman ^aq;/" Validating Act 1913.

6. Constituent Assembly Debates, Vol. VII, p. 543.

7. See M.A. Beg Sahib Bahadur's Speech in the Constituent Assembly, Constituent Assembly Debates, Vol. Vll (1949), p. 543.

8. Constitution Assembly Debates, Vol. Vll, pp. 544-546.

9. Id at 546.

10. Ibid.

11. Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform Civil Code, p. 39 (1998).

12. See Supra note 4, for K.M. Munshi's speech in the Constituent Assembly.

13. Supra note 1 at 124

14. Ibid.

15. Supra note 3.

I 69]

Uniform Civil Code and The Constitution of India

16. Supra note 2 at 40.

17. Supra note 3 at 55.

18. Ibid.

19. Tahir Mahmood, Muslim Personal Law : Role of State in the Suh-Constituent, p. 97 (1977).

20. A.I.R. 1941 F.C. 16

21. Panch Gunjar Kaur v. Amar Singh, AIR 1954 Raj. 100

22. Moti Bai vs. Chanayya, AIR 1954 Hyd. 161.

23. Naresh Bose vs. S.N. Deb, AIR 1956, Cal. 222.

24. Rao Moti Singh vs. Chandrabali, AIR 1956, M.R 212

25. Atma Ram vs. State, AIR 1965 Bom. 9.

26. Supra note 3 at 97.

27. Supra note 11 at 43.

28. Ibid.

29. Entry 5

30. Entry 6

31. Entry 28

32. Entry 10

33. Entry 18

34. Entry 5

35. Entry 20

36. Supra note 11 at 44

f 70 J

202

Chapter – 4

Uniform Civil Code - A Need of the Hour

Under International law, a state that ratifies an international instrument

becomes legally bound to implement its provisions. Accordingly India having ratified

the International Covenant on Civil and Political Rights, 1966, and International

Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW), 1979, is bound to enforce the relevant provisions and ensure gender

equality under its national laws. However, women in India under Hindu, Muslim and

Christian laws continue to suffer discrimination and inequalities in the matter of

marriage, succession, divorce and inheritance. So as a step towards a gender just code,

the personal laws of various communities in India need a closer look and reform, not

only in compliance with the Indian Constitution but also as per the provisions of the

International law.

Prevalence of discrimination against women under various personal laws of

different communities in India was openly accepted by India in its periodic report

before the United Nations Committee on the Elimination of All Forms of

Discrimination Against Women (CEDAW) when it admitted, “ The personal laws of

the major religious communities had traditionally governed marital and family

relations, with the Government maintaining a policy of non- interference in such laws

in the absence of a demand for change from individual religious communities.”1 India

has been submitting periodic compliance reports vis-à-vis the implementation of the

CEDAW, to this committee. This committee expects India‟s compliance to the

provisions of the said international instrument and „noted‟ that “steps have not been

taken to reform the personal laws of the different religious and ethnic groups, in

consultation with them, so as to conform to the Convention,” and warned that “the

Government‟s policy of non-intervention perpetuates sexual stereotypes, son

preference and discrimination against women.”2 The committee also “urged the

Government to withdraw its declaration to Article 16, paragraph 1 of the convention

and to work with and support women‟s groups and members of the community in

1 United Nations , Report of the Committee on the Elimination of All Forms of Discrimination

Against Women, 8, Supp. No. 38, A/55/38, 22nd

Session 17 Jan-4 Feb 2000 and 23rd

Session 12-30

June, General Assembly Official Records, New York, 2000. 2 Supra note 1, at 10.

203

reviewing and reforming these personal laws”3 and expected the Government “to

follow the Directive Principles in the Constitution and the Supreme Court decisions

and enact a Uniform Civil Code that different ethnic and religious may adopt.”4

Meaning and need of Uniform Civil Code

The term civil code is used to cover the entire body of laws governing rights

relating to property and otherwise in personal matters like marriage, divorce,

maintenance, adoption and inheritance. The demand for a uniform civil code

essentially means unifying all these personal laws to have one set of secular laws

dealing with these aspects that will apply to all citizens of India irrespective of the

community they belong to. Though the exact contours of such a uniform code have

not been spelt out, it should presumably incorporate the most modern and progressive

aspects of all existing personal laws while discarding those which are retrograde.5

The spine of controversy revolving around Uniform Civil Code has been

secularism and the freedom of religion enumerated in the Constitution of India. The

preamble of the Constitution states that India is a "Secular Democratic Republic" This

means that there is no State religion. A secular State shall not discriminate against

anyone on the ground of religion. A State is only concerned with the relation between

man and man. It is not concerned with the relation of man with God. It does not mean

allowing all religions to be practiced. It means that religion should not interfere with

the mundane life of an individual. Rebecca J. Cook rightly points out that although the

Indian Constitution contains articles mandating equality and non discrimination on the

grounds of sex, strangely however, several laws exist that apparently violate these

principles and continue to be there especially in personal laws of certain communities

with provisions that are highly discriminatory against women. The situation is further

criticized when it pointed out that, “The Indian State has, however, made no effort to

change these laws or introduce new legislation in conformity with Constitutional

principles. In fact Indian Government seems to have chosen to ignore these principles

3 India‟s Declarations to CEDAW. With regard to Art. 5(a) and 16(1) of the Convention on the

Elimination of All Forms of Discrimination Against Women, “the Government of the Republic of

India declares that it shall be abide by and ensure these provisions in conformity with its policy of

non interference in the personal affairs of any Community without the initiative and consent.” 4 Supra note 1, at 10.

5 http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=98057, visited on 5-

11-2013.

204

completely and acts as if they did not exist.”6

The Indian Constitution expressly stands for gender equality. For example,

Article 44 of the Constitution envisages a Uniform Civil Code for all citizens and lays

down that, “The State shall endeavor to secure for the citizen a Uniform Civil Code

through out the territory of India.”7 However, even after half a century from the

framing of the Constitution, the ideal of Uniform Civil Code is yet to be achieved.

Women, who make up nearly a half of India, continue to clamour for a gender just

code to enjoy equality and justice irrespective of the community to which they belong.

The Uniform Civil Code is required not only to ensure (a) uniformity of laws between

communities, but also (b) uniformity of laws within communities ensuring equalities

between the rights of men and women.8

One of the major problems that has provoked exciting polemics and

aggravated majority pressures is the enactment of a uniform civil code for the citizens

throughout the territory of India, as desiderated in Article 44. The provision is

cautiously worded and calls upon the State to `endeavour' to secure such a code. It is

neither time-bound nor carries a compulsive urgency. But the Hindu fundamentalists

make it a militant demand as if Hindu law should be made the national family law.

There is apprehension in the mind of the Muslim minority that the Quran is in danger,

that its sacred family law will be jettisoned. In the Shah Bano case in 1986, the

Supreme Court expressed displeasure at the delay in framing a uniform civil code,

which was regarded as a secular imperative. Raging controversy demanding the

uniform code followed and was resisted in full fury by the Muslim minority, with

distinguished exceptions.9

Attempts have been made from time to time for enacting a Uniform Civil

Code after independence and the Supreme Court in various cases has been giving

directions to the government for implementing Article 44 of the Constitution and to

reform the personal laws specially those relating to the minorities and to remove

gender bias therein. While a uniform civil code is not particularly high on the national

agenda, value-based progressive changes, preserving the separate identity of each

religious group, is a feasible project avoiding insult and injury to any minority. This

6 Kirti Singh, “Obstacles to women’s Rights in India”, Human Rights of Women: National and

International Perspectives 375 (1994) 7 V.N. Shukla, The Constitution of India, 308 (2001)

8 F. Agnes, “Hindu Men Monogamy and Uniform Civil Code” XXX (50) Economic and Political

Weekly 32 (1995); B. Karat, “Uniformity v. Equality” Frontline 17 Nov, 1995. 9 V.R. Krishna Iyer, “Unifying Personal Laws” The Hindu, 6 September 2003.

205

may be a preliminary step to pave the way for a common code. Mobilization of

Muslim, Christian and Parsi opinion in this direction is sure to yield salutary results

and reduce fundamentalist resistance. Maybe, to facilitate a national debate, a

facultative common code may be drawn up at a non-governmental level. It will be

purely optional for minorities to accept or reject those provisions.10

Our founding fathers have been cautious in their phraseology while drafting

Article 44 and therefore in a situation where the nation is in the grip of communal

tension hurry must make way to moderation. Initially the idea of Uniform Civil Code

was raised in the Constituent Assembly in 1947 and it was incorporated as one of the

directive principles of the State policy by the sub-committee on Fundamental Rights

and clause 39 of the draft directive principles of the state policy provided that the

State shall endeavor to secure for the citizen a Uniform Civil Code. The arguments

put forward was that different personal laws of communities based on religion, “kept

India back from advancing to nationhood” and it was suggested that a Uniform Civil

Code “should be guaranteed to Indian people within a period of five to ten years”11

The Chairman of the drafting committee of the Constitution, Dr. B.R. Ambedkar, said

that, “We have in this country uniform code of laws covering almost every aspect of

human relationship. We have a uniform and complete criminal code operating

throughout the country which is contained in the Indian Penal Code and the Criminal

Procedure Code. The only province the civil law has not been able to invade so far as

the marriage and succession ……. and it is the intention of those who desire to have

Article 35 as a part of Constitution so as to bring about the change.”12

Though

Ambedkar was supported by Gopalaswamy Ayyangar and others but Jawarharlal

Nehru intervened in the debate. Nehru said in 1954 in the Parliament, “I do not think

at the present time the time is ripe for me to try to push it (Uniform Civil Code)

through.”13

Since the Uniform Civil Code was a politically sensitive issue, the

founding fathers of the Constitution arrived at an honorable compromise by placing it

under Article 44 as a directive principle of state policy.

Even after more than five decades from the framing of the Constitution, the

ideal of uniform civil code under Article 44 is yet to be achieved. However, efforts in

10

Supra note 8 11

B. Shiv Rao (ed.), The Framing of India’s Constitution: Select Documents Vol. II, The Indian

Institute of Public Administration (IIPA), New Delhi, 1968. Debates of 14, 17-20 April 1947. 12

Lok Sabha Secretariat, Constituent Assembly Debates Vol. III, 551, 23 Nov. 1948. 13

Virendra Kumar, “Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal

(1995) to Lily Thomas (2000)]” 42 JILI 315 (2000).

206

this direction continued as reflected in various pronouncements of the Supreme Court

from time to time.

Uniform Civil Code - Gender Justice

In Mohammad Ahmed Khan v. Shah Bano Begum,14

popularly known as Shah

Bano‟s case, the Supreme Court held that “It is also a matter of regret that Article 44

of our Constitution has remained a dead letter.” Though this decision was highly

criticized by Muslim Fundamentalists, yet it was considered as a liberal interpretation

of law as required by gender justice. Later on, under pressure from Muslim

Fundamentalists, the central Government passed the Muslim Women‟s (Protection of

rights on Divorce) Act 1986, which denied right of maintenance to Muslim women

under section 125 Cr.P.C. The activist rightly denounced that it “was doubtless a

retrograde step. That also showed how women‟s rights have a low priority even for

the secular state of India. Autonomy of a religious establishment was thus made to

prevail over women‟s rights.”15

In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and

others,16

Kuldip Singh J., while delivering the judgment directed the Government to

implement the directive of Article 44 and to file affidavit indicating the steps taken in

the matter and held that, “Successive governments have been wholly remiss in their

duty of implementing the Constitutional mandate under Article 44, Therefore the

Supreme Court requested the Government of India, through the Prime Minister of the

country to have a fresh look at Article 44 of the Constitution of India and endeavor to

secure for its citizens a uniform civil code through out the territory of India.”

However, in Ahmadabad Women’s Action Group (AWAG) v. Union of

India,17

a PIL was filed challenging gender discriminatory provisions in Hindu,

Muslim and Christian statutory and non-statutory law. This time Supreme Court

became a bit reserved and held that the matter of removal of gender discrimination in

personal laws “involves issues of State polices with which the court will not

ordinarily have any concern.”18

The decision was criticized that the apex court had

virtually abdicated its role as a sentinel in protecting the principles of equality

14

(1985) 2 SCC 556. 15

Amita Dhanda & Archna Prashar, Engendering Law: Essays in Honour of Lokita Sarkar, 137

(1999). 16

AIR 1995 SC 1531 17

AIR 1997 SC 3614. 18

Ibid, at 3617

207

regarding gender related issues of personal laws of various communities in India.19

The Apex Court pursued the same line in Lily Thomas etc. v. Union of India

and others20

and held :

“The desirability of Uniform Civil Code can hardly be doubted. But it can

concretize only when social climate is properly built up by elite of the society,

statesmen amongst leaders who instead of gaining personal mileage rise above and

awaken the masses to accept the change.”

The situation regarding the personal laws for Christians in India was different.

In their case, the courts seemed to be bolder and took a progressive stand in terms of

gender equality. For example, in 1989, in Swapana Ghosh v. Sadananda Ghosh,21

the

Calcutta High Court expressed the view that sections 10 and 17 of the Indian Divorce

Act, 1869, should be declared unconstitutional but nothing happened till 1995. In

1995, the Kerela High Court in Ammini E.J. v. Union of India,22

and Bombay High

Court in Pragati Verghese v. Cyrill George Verghese,23

struck down section 10 of

Indian Divorce Act, 1869 as being violative of gender equality.

In September 2001, a poor Muslim woman, Julekhabhai, sought changes in the

divorce provisions in Muslim law as well as that polygamy be declared illegal. The

Supreme Court asked her to approach Parliament, refusing to entertain the petition.

Julekhabhai had sought equality with Muslim men, requesting court to declare that

"dissolution of marriage under Muslim Marriage Act, 1939, can be invoked equally

by either spouse". It also requested the court to strike down provisions relating to

"talaq, ila, zihar, lian, khula etc", which allowed extra-judicial divorce in Muslim

personal law. 24

Mohammed Abdul Rahim Quraishi, Secretary, All India Muslim Personal

Law Board, says: "It is also to be seen that the subjects of marriage and divorce,

infants and minors, wills, intestacy and succession, partition etc, are enumerated in the

concurrent list of 7th Schedule of the Constitution. These are subjects on which both

the central and state governments have the power to make laws. As a result, we find

19

Rajeev Dhawan, “The Apex Court and Personal Law” The Hindu, 14 March 1997. 20

AIR 2000 SC 1650, at 668. 21

AIR 1989 Cal. 1. 22

AIR 1995 Ker 252. 23

AIR 1997 Bom 349.

24 Nilanjana Bhaduri Jha, “Does India really need a Uniform Civil Code?” from website of Times of

India, visited on 3-4-2010.

208

many regional variations affected by the state legislatures in the Hindu Laws."25

Bigamy is punishable by law in all communities save the Muslims, who are

governed by the Sharia law. The Muslim Personal Law (Shariat) Application Act

1937 was passed by the British government to ensure that the Muslims were insulated

from common law and that only their personal law would be applicable to them.

Bigamous marriages are illegal among Christians (Act XV of 1872), Parsis (Act II of

1936) and Hindus, Buddhists, Sikhs and Jains (Act XXV of 1955). Enactment of a

Uniform Civil Code would impinge upon Muslim rights to polygamy. In almost all

recent cases where the need for a Uniform Civil Code has been emphasised women

were at the receiving end of torture in the garb of religious immunity. Apart from the

famous Shah Bano (1986) and Sarla Mudgal (1995) cases, there have been several

other pleas by Hindu wives whose husbands converted to Islam only in order to get

married again without divorcing the first wife. "To conserve the cohesion of Hindu

society, the Hindu laws made allowances for customs and usages. The imposition of

uniformity would have undermined Hindu social cohesion. If matters relating to

family laws and customs fall under the jurisdiction of Parliament and state

legislatures, the country will have a variety of regulations. The State amendments

have made many in-roads in the Hindu laws damaging the uniformity of theses laws,

affecting many substantive rules."26

In a Uniform Civil Code which is the cherished constitutional goal, if we have

a single ground of divorce viz. that the marriage has broken down irretrievably, the

scope of any controversy is ruled out.27

Where factually marriage has broken down

irretrievably, no useful purpose will be served in finding out the guilt or innocence of

the parties and in such cases law proceeds to cut off the tie.28

Analytical discussion on

these issues shows that there should be one single ground of divorce, viz., irretrievable

breakdown of marriage.29

Irretrievable breakdown of marriage and divorce by mutual consent should be

made uniformly a ground to dissolve the marriage of spouses irrespective of their

religious faiths. The critical analysis of different existing grounds of divorce

contained under various divorce laws shows more uniformity and less contrast in

25

Supra Note 24. 26

Supra Note 24 27

Paras Diwan and Peeyushi Diwan, Law of Marriage and Divorce, 47 (1997). 28

Shiv Sahai Singh, Unification of Divorce Laws in India, 376 (1993). 29

Ibid, at 377.

209

them. Therefore, the conceptual analysis of the different existing ground of divorce

paves the way to push up the matter of uniformity in them legislatively.30

In Naveen Kohli v. Neelu Kohli,31

the Supreme Court, clearly and strongly

while permitting dissolution of thirty year old mismatch, urged the Government of

India to amend Hindu Marriage Act in order to make Irretrievable break down of

marriage a valid ground for divorce. The court held that “irrevocable break down of

marriage” as a ground for divorce was prevalent in many other countries and

recommended the Union of India to seriously consider bringing an amendment in

Hindu Marriage Act, 1955 to incorporate irretrievable break down of marriage as a

ground for the grant of divorce. The court ordered to send a copy of judgment to the

Secretary, Ministry of law and justice, Department of legal affairs, Government of

India for taking appropriate steps32

.

The express introduction of the “irretrievable break down” principle, as has

been done in England will be much more conducive and functional than merely

relying on the “implied” principle. Besides, the administration of justice on the basis

of clearly codified law is superior to the adjudication from case to case. For this,

Parliament could reintroduce the Marriage Laws (Amendment) Bill, 1981 (No.23 of

1981), which earlier did not fructify into law for expressly introducing irretrievable

break down of marriage as the singular ground for divorce, as the bill was allowed to

lapse.33

Recently in Ramesh Jangid v. Sunita34

, the wife wanted her husband to leave

his parents and live separately. The Court held that the demand of wife was

unreasonable and as wife was living separately for 13 years and denying physical

relationship, so divorce was granted. The court observed that,” The differences that

have grown up between the parties, the distance which has widened for over a decade

cannot be brushed aside lightly. Thus irreparable break down of marriage is obvious.”

In Prabhakar v. Shanti Bai35

, parties were married in 1955, they have not

stayed together since 1958, and no cohabitation was there since last 49 years. The

court granted the decree of Divorce as the marriage between the parties was

irretrievably broken.

30

Ibid. 31

2006 (4) SCC 558 32

Ibid, para 96 33

Virender Kumar, “See the Rift, not the Fault” 12, The Tribune, 21 May, 2006. 34

2008 (1) HLR 8 (Raj.) 35

2008 HLR 250 (Nagpur)

210

The Law Commission of India and the Supreme Court have recommended that

the irretrievable break down of marriage should be made a separate ground of divorce

by the legislature. No useful purpose would be served by keeping alive de jure what is

dead de facto. It is possible that if Parliament does not act on this recommendation the

legislature of some states of India may take the lead, exercising power under entry 5

of the concurrent list of the 7th

schedule.36

The Law Commission of India

recommended in 2008:

“It is, therefore, suggested that immediate action be taken to introduce an

amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for

inclusion of „irretrievable breakdown of marriage‟ as another ground for grant of

divorce.”37

The State should come out with specified steps to endeavor to secure the

citizens a Uniform civil Code through out the country. The Supreme Court ruled in

Seema v. Ashwani Kumar,38

that all marriages irrespective of their religion be

compulsorily registered. The Court felt that, “this ruling was necessary by the need of

the time as certain unscrupulous husbands deny marriage, leaving their spouses in the

lurch, be it for seeking maintenance, custody of children or inheritance of property.”39

The Supreme Court order is a first step towards the Uniform Civil Code.40

The

Supreme Court ruled that all the marriages irrespective of their religion, be

compulsory registered. Justice Pasayat, writing the judgment for the bench in a matter

that was on offshoot of a matrimonial case, directed the Government to provide for

“consequences of non-registration of marriages” in the rules, which should be

formalized after inviting public response and considering them. The Law Commission

of India recommended in 2008:

“It is high time we took a second look at the entire gamut of Central and State

laws on registration of marriages and divorces to assess if a uniform regime of

marriage and divorce registration laws is feasible in the country at this stage of social

development and, if not, what necessary legal reforms may be introduced for

streamlining and improving upon the present system.”41

For long Christian women too had the law loaded against them. A Christian

36

Ramesh Chander Nagpal, Modern Hindu Law, 182 (2008). 37

217th

Indian Law Commission Report was forwarded on 30 March 2009. 38

(2005) 2 SCC 578. 39

Supra Note 24. 40

Dhanajay Mahapatra, “All marriages must be registered” The Times of India, 15 Feb. 2006. 41

211th Report of the Law Commission of India which was forwarded on 17 October, 2008.

211

man could obtain a divorce on the basis of adultery; a woman had to establish an

additional charge like desertion or cruelty under the Indian Divorce Act 1869. But in

1997, cruelty, physical and mental torture were made ground enough for a Christian

woman to obtain a divorce, with the Bombay High Court recognizing cruelty and

desertion as independent grounds for the dissolution of a Christian marriage. Divorce

under the Hindu Marriage Act 1955 can be obtained on the grounds of adultery,

cruelty, desertion for two years, conversion in religion, an unsound mind, suffering

from venereal disease or leprosy or if the spouse has renounced the world and has not

been heard from for seven years. Also no resumption of co-habitation for one year

after the decree of judicial separation, no restitution of conjugal rights for one year

after decree for restitution of conjugal rights, or if the husband is guilty of rape,

sodomy or bestiality.

All major religions thus have their own laws that govern divorces within their

own community, and there are separate regulations under the Special Marriage Act,

1956 regarding divorce in interfaith marriages. Under a common civil code, one law

would govern all divorces.

Significantly, in the matter of a Uniform Civil Code, India‟s binding

obligation under international law have also started attracting attention of legal and

other experts. Satyabrata Rai Chawdhuri, rightly observed in 200342

:-

[Since] different treatment for any religious group is violative of the UN

Covenant on Civil and Political Rights and the Declaration on the Rights to

Development adopted by the world conference on Human Rights, it is hoped that

Parliament will frame a common civil code without further delay, divesting religion

from social relations and personal law.

One should not forget that nationhood is symbolized by one Constitution, a

single citizenship, one flag and a common law applicable to all citizens and India‟s

obligations under international law and requirements of various international

instruments relating to the human rights of women such as Universal declaration of

Human Rights, 1948 and the Declaration on the Elimination of Discrimination

Against Women, 1967, also demand that even if one rules out Article 44 the Union of

India cannot evade its international obligation to make laws to remove all

42

Satyabrata Rai Chawdhuri, “A Common Civil Code : It is a Constitutional Obligation” 10, The

Tribune, 30 July 2003.

212

discrimination against women.43

For that, just as 27 years ago, the Equal

Remuneration Act, 1976 was enacted for the benefit of all working women, “The next

logical step is to make a law to secure equal rights to women. An Equal Right Act

would largely achieve the objective of common civil code. In the alternative, parallel

reform of each personal law to give effect to the Human Rights declared by the

United Nation would help in the emergence of common pattern of personal laws,

paving the way for uniform code, and a beginning could be made in the direction but

it seems that the Political will is lacking.”44

The Article 44 of the Constitution of India requires the state to secure for the

citizens of India a Uniform Civil Code throughout the territory of India. As has been

noticed above, India is a unique blend and merger of codified personal laws of

Hindus, Christians, Parsis and to some extent of laws of Muslims. However, there

exists no uniform family related law in a single statutory book for all Indians which is

universally acceptable to all religious communities who co-exist in India.

As discussed above, the Supreme Court of India for the first time directed the

Indian Parliament to frame a Uniform Civil Code in 1985 in the case of Mohammad

Ahmed Khan v. Shah Bano Begum.45

In this case a penurious Muslim woman claimed

maintenance from her husband under Section 125 of the Code of Criminal Procedure

after her husband pronounced triple Talaq (divorce by announcing the word “Talaq”

thrice). The Apex Court held that the Muslim woman had a right to get maintenance

under Section 125 of the Code and also held that Article 44 of the Constitution had

remained a dead letter. To undo the above decision, the Muslim Women (Right to

Protection on Divorce) Act, 1986 which curtailed the right of a Muslim Woman for

maintenance under Section 125 of the Court was enacted by the Indian Parliament.

Thereafter, in the case of Sarla Mudgal Vs. Union of India46

, the question which was

raised was whether a Hindu husband married under Hindu law can, by embracing

Islamic religion, solemnize a second marriage. The Supreme Court held that a Hindu

marriage solemnized under Hindu Law can only be dissolved under the Hindu

Marriage Act and conversion to Islam and marrying again would not by itself dissolve

the Hindu marriage. Further, it was held that a second marriage solemnized after

43

Jyoti Rattan, “Uniform Civil Code in India: A Binding Obligation Under International And

Domestic Law” 46 JILI 577 (2004). 44

P.P. Rao “Uniform Civil Code is a Necessity: An Optional Common Law can be Enacted” 10, The

Tribune 6 Aug. 2003. 45

AIR 1985 SC 945 46

AIR 1995 SC 1531

213

converting to Islam would be an offence of bigamy under Section 494 of the Indian

Penal Code. In this context, the views of Mr. Justice Kuldip Singh are pertinent:

“Where more than 80 percent of the citizens have already been brought under

the codified personal law there is no justification whatsoever to keep in abeyance, any

more, the introduction of the „Uniform Civil Code‟ for all the citizens in the territory

of India.”

Thus, the Supreme Court reiterated the need for Parliament to frame a

common civil code which will help the cause of national integration by removing

contradictions based on ideologies. The Directive Principle of enacting a uniform civil

code has been urged by the Apex Court repeatedly in a number of decisions as a

matter of urgency. Unfortunately, in a subsequent decision reported as Lily Thomas v.

Union of India,47

the Apex Court, dealing with the validity of a second marriage

contracted by a Hindu husband after his conversion to Islam, clarified that the court

had not issued any directions for the codification of a common civil code and that the

judges constituting the different benches had only expressed their views in the facts

and the circumstances of those cases. Even the lack of will to do so by the Indian

government can be deciphered from the recent stand stated in the Indian press. It has

been reported in the Asian Age, "that the Indian government does not intend to bring

legislation to ensure a uniform civil code because it does not want to initiate changes

in the personal laws of minority communities."48

However, this ought not to deter the

efforts of the Supreme Court of India in issuing mandatory directions to the central

government to bring a common civil code applicable to all communities irrespective

of their religion and practices in a secular India. Hopefully, the Apex Court may

review its findings in some other case and issue mandatory directions to the central

government to bring a common civil code applicable to all communities irrespective

of their religion.

The Preamble of the Indian Constitution resolves to constitute a “Secular”

Democratic Republic. This means that there is no State religion and that the state shall

not discriminate on the ground of religion. Articles 25 and 26 of the Constitution of

India as enforceable fundamental rights guarantee freedom of religion and freedom to

manage religious affairs. At the same time Article 44 which is not enforceable in a

Court of Law states that the state shall endeavor to secure a uniform civil code in

47

2000 (6) SCC 224 48

August 5, 2006, by the Press Trust of India (the Official Government News Agency)

214

India. How are they to be reconciled. What will be the ingredients of a Uniform Civil

Code. Since the personal laws of each religion contain separate ingredients, the

uniform civil code will need to strike a balance between protection of fundamental

rights and religious principles of different communities. Marriage, divorce,

succession, inheritance and maintenance can be matters of a secular nature and law

can regulate them. India needs a codified law which will cover all religions in relation

to the personal laws of different communities.

Critics of the uniform civil code think that the true principles of Muslim law

remain eclipsed by its extensive alleged misreading over the years. It is suggested by

Tahir Mahmood, an eminent scholar in his article that “an Indian Code of Muslim

Law based on an eclectic selection of principles from the various schools of Shariat is

the ideal solution to all the contemporary problems of Muslim Law”.49

In another

report,50

it has been reported that the Supreme Court of India dismissed a public

interest litigation petition challenging the legality of the customs of polygamy, talaq

and divorce practiced by Muslims under personal laws. The plea for a direction to the

Central Government to make Uniform Marriage Laws for all communities was

rejected on the ground that it is for Parliament to change or amend the law. Thus, the

debate is endless and the issue remains unresolved.

It is in this context that we need to understand the issue of the uniform civil

code. The time has come to place personal laws of all religions under a scanner and

reject those laws that violate the Constitution. Personal laws of all religions

discriminate against women on matters of marriage, divorce, inheritance and so on.

There is an urgent need to cull out the just and equitable laws of all religions and form

a blueprint for a uniform civil code based on gender justice. The Hindu code cannot

be applied uniformly to all religions. On the other hand, triple talaq would have to go,

as would polygamy and all the advantages that accrue to Hindu undivided families in

matters of property and inheritance.51

In this backdrop, one can say that in our country, personal laws continuously

affect the lives and rights of a large number of women of all most all the

communities. Although various efforts are being done by the means of international

instruments, reforms of national laws, changing judicial trends, recommendations of

49

“Muslim Personal Law: Clearing The Cobwebs”, The Hindu, July 30, 2006. 50

May 11, 2006, The Hindu. 51

Shabana Azmi, Women, Stand Up For Your Rights, The Times of India, 7 July 2005

215

Law Commissions and other social elite groups to ensure gender equality but still

women in our country are not treated equally and discriminated in the field of family

law especially in cases of marriage, divorce, maintenance, inheritance etc. In these

situations, a gender-just code is the need of the time. So a Uniform Civil Code is very

important for the protection of oppressed women, to protect their human rights, to

remove discrimination against them irrespective of their religion or community they

belong and, lastly to make our national laws in accordance with the international

instruments which are legally binding on India through various international

conventions and international Human Rights instruments which are ratified by India. I

think at the present time, the time is ripe for us to try to push it (Uniform Civil Code)

through. To sum up in last, it can be said for citizens belonging to different religions

and denominations, it is imperative that for promotion of national unity and solidarity

a unified code is an absolute necessity on which there can be no compromise.

Different streams of religion have to merge to a common destination and some unified

principles must emerge in the true spirit of Secularism. India needs a unified code of

family laws under an umbrella of all its constituent religions. Whether it is the

endeavor of the State, the mandate of the court or the Will of the people is an issue

which only time will decide.

COMMENTARY

Reversing the Option Civil Codes and Personal Laws

In the present political situation where the issue of women's rights continues to be subordinated to the imperatives of majoritarianism and minoritarianism, it is necessary to make a conceptual shift in the way in which family laws have so far been envisaged. This note presents a proposal prepared by a Working Group on Women 's Rights which, while restoring the focus on women 's rightst also aims to change the terms of the debate. The members of the Working Group are Amrita Chhachhi, Farida Khan, Gautam Navlakha, Kumkum Sangari, Neeraj Malik, Nivedita Menon, Ritu Menon, Tanika Sarkar, Uma Chakravarti, Urvashi Butalia and Zoya Hasan.

T H E terms o f the current discussion on the un i form c iv i l code and personal laws were set by the p o l i t i c a l p o s i t i o n s w h i c h crystall ised around the Shah Bano case, so that at present there appear to be only three options - support for a un i fo rm c iv i l code (UCC) , reform w i th in personal law; or an optional un i fo rm c iv i l code. Though there are dif ferent nuances wi th in these, wc feel that all three options are l imi ted. In the present pol i t ical situation where the issue of women's rights continues to be subordinated to the imperatives of major i tar ianism and minor i tar ianism, it is necessary to rethink the whole issue f r om a broader perspective based on democrat ic pr inciples. We are presenting a proposal, the result o f intensive discussions, wh ich, wh i le restoring the focus on women's r ights (as other democratic and feminist groups are t ry ing to do), also aims to change the terms o f the debate. Our intent ion is to intervene in the present controversy surrounding the question of legal reform and to provoke a debate on somewhat dif ferent lines. Our proposal does not offer a package o f laws or deal w i t h legal technicalit ies, but attempts a conceptual shift in the way in wh ich fami ly laws have so far been envisaged.

PROBLEMS WITH UCC

The early not ion of a un i fo rm c i v i l code, as presented in the 1940s and 1950s, was developed w i th in a nationalist f ramework w i th adouble agenda o f i mprov ing the status of women and un i fy ing the different religious communit ies through a set o f common laws. W e recognise the p ioneer ing work and commitment of the early feminists to more gender-just laws than the personal laws operative in the 1940s (and importance wi th in that historical context); nevertheless their early conception o f the U C C was problematic on three inier-related counts. These problems are related not to un i fo rmi ty per se but to its ideological deployment.

1 The ideaof the U C C rested on a mechanical not ion o f the integration of dif ferent com-munit ies through un i formi ty o f laws; it also l inked integration to the achievement o f a modern nation-state. Thus, wh i le demanding the UCC in the Constituent Assembly, M R Masani, Hansa Mehta and Amr i t Kaur - who dissented f rom the decis ion o f the sub-commit tee to not include UCC in Fundamental Rights and took admirable positions on several issues - bemoaned the continuance o f personal laws as keeping India back f rom advancing to nationhood. Further, it d id not attempt to take in to account the socia l d i f -ferentiation that exists in India, even as it sought to transcend them in the realm o f rights. Wh i le the question of national uni ty was sought to be resolved legalis-t ical ly, national integration was to be based only on the legal integration of rel igious c o m m u n i t i e s . U n i f o r m i t y was thus attempted only in personal laws and not in social l i fe as a whole, as for example, in the equitable distr ibut ion of resources.

2 Since the UCC was seen to be a corrective for d iv is ive colonial policies and a formula fur integrating people into one nation in the 1940s and 1950s, this approach has made it possible to underplay the question o f women's rights. The Committee on the Status of W o m e n (1975) returhed the spotl ight to the rights of women, but even so, it d id not fu l ly distance itself f rom the earlier conception o f the UCC as furthering national integration. The focus on the need for a UCC to integrate the nation has enabled its appropriat ion as a campaign issue for the BJP. Over the years the question o f women's rights has either been underp layed or used as a convenient rhetorical position. These problems have been most evident

in, indeed intensif ied by, the jud ic iary . In cases i n v o l v i n g M u s l i m personal l a w , Supreme Court judges have foregrounded

and expl ic i t ly regarded the 'oneness' of the nation, as wel l as loyal ty to it to be at stake i f d i f ferent minor i ty groups fo l low dif ferent fami ly laws. In the Shah Bano case (1985) judges said that "a common c iv i l code w i l l help the cause o f national integration by removing disparate loyalties in laws which have conf l ic t ing ideologies". '

In the recent Supreme Court judgment on Sarla Mudgal vs Union of India (1995) the judges repeated this and further held; " In the Indian Republ ic there was to be only one nation - Indian nation - and no communi ty could c la im to remain a separate entity on the basis o f re l ig ion." 'They added: "The H indus and Sikhs have forsaken thei r sentiments in the cause o f national unity and integration; some other wou ld not..."

W h a t is m o r e d i s c o n c e r t i n g , even disturbing, is the way the UCC is invoked rout ine ly , almost re f lex ive ly , by judges pronouncing on cases invo lv ing Mus l im personal law - whether maintenance or triple talaq or bigamy - but never when confronted w i th the inequities o f Hindu personal law in court. Thus in the Sarla Mudga l case, the Supreme Court judgment dealt w i th bigamy f rom the point of view of the provision for polygamy in the Mus l im personal law, which was represented as being the main reason for H indu bigamy. The judgment ignored the high incidence of Hindu bigamy that exists even wi thout recourse to Mus l im personal law. It also ignored the fact that m a l lowing Hindu marriage rituals to be the sole proof of marriage, the lacunae in Hindu personal law have comb ined w i t h the jud ic ia ry 's own interpretations to facilitate b igamy. They also d id not ask for the strengthening and un i form application of the exist ing penal provisions for prosecution o f b igamy or lor better laws on divorce

When these two kinds of jud ic ia l state-ments are considered together, the f i ist upholding patriot ic Hindus and Sikhs, and the second invok ing a UCC only when faced w i t h gender i nequ i t i es under M u s l i m personal law, they assume the fo l low ing dangerous logic; Hindus have reformed themselves; others have to be brought in l ine w i th them or, more patronisingly, raised to their level; and minor i ty communit ies are anti-national in retaining 'special privi leges' through personal laws.

The d i f f i cu l t y o f conceptually disentan-g l ing equali ty for women f rom the unity o f the nation has had three consequences:

First, it produced an idea o f the nation that cou ld o n l y veer between the ideal o f un i fo rmi ty and the consti tut ional guarantees o f rel igious freedom. By pi t t ing the two against each other, it provided an easy weapon to communal ists, who latched on either to the one or to the other. A second level o f contradict ion between the just ic iable and

Economic and Political Weekly .May 18, 1996 1180

.non-justiciable clauses in the constitution, also setup a problematic opposition between gender justice and freedom of religion; this too has been used by communalists and interpreted in an entirely sectarian and patriarchal spirit.

Second, it severely l imited the ways in which the question of gender justice could be posed. The focus remained on the in-equalities and differences between com-munities because of the existence of separate personal laws, rather than on the injustice that exists within each personal law. The emphasis was less often on equality and most often on un i formi ty among com-munities.

Third, the particular package of laws that would comprise the UCC was never made clear. 3 There was another conceptual flaw in the

original premise of the UCC, that has been unquestioningly repeated. It compart-mentalises civi l law into the public and private, the former dealing wi th and related primarily to the world of business, contracts and property, the latter restricted to the family and domestic matters. A l l attempts to address the d iscr iminat ion against women in the 1 alter sphere have left un-challenged the public/private dichotomy. The UCC has been regarded as merely a substitute that is still confined to family and domestic matters. This creates several problems; for instance, the fact that inheritance comes under both sets of laws, compounds the nature of discrimination against women. This division, as wel l as the naming of c iv i l law governing the family as 'personal' and 'rel igious', can both be traced back to the colonial period and Brit ish ideologies of rule and methods of consolidating pol i t ical power. This naming was also problematic because most of these laws were being codified and enacted by the state. We feel that we cannot sympathise with

a defence of the UCC on the ground of these ideological nolions of national unity or uniformity. Nor can we support either resis-tance to or attacks on legal reform from any quarter (even i f presented as resistance to imposed 'uni formi ty ' ) when they are based on preserving patriarchal privileges. We feel the question of gender justice has to be delinked from national unity and uniformity. Equally we feel it has to be delinked from communalisation. The UCC as posed by the BJP and Sangh 'parivar' never takes into account even existing secular provisions that are more gender-just than personal laws, let alone coming up with concrete proposals. Either they suggest, as Sushma Swaraj has done, that the UCC should be based on the best from all personal laws, or, as the VHP has done, that the Hindu personal law should be imposed on all citizens. Further, more often than not, their advocacy of a UCC seems to hinge on a contest over male

patriarchal privilege, and rests on achieving a parity of such privilege between men of different religions.

PROBLEMS WITH PERSONAL LAWS

As far as personal laws are concerned, all of them without exception are rtven with problems that have repeatedly been posed by feminist groups in the past decades. The problems are not confined to the content of personal laws ; they extend to the i r foundational principles as well. 1 Personal laws are as conceptually flawed

as the UCC since they deny to women within communities the rights that com-munities claim for themselves - that is, the right to self-determination, autonomy and access to resources.

2 A l l personal laws are highly discriminatory against women since they are based on an interpretation of religion that sanctions patriarchy and resists democratic and egali-tarian relations between men and women outside as well as within the family. This is evidenced by the fact that Hindu laws were reformed in the teeth of orthodox opposition and are still far from granting justice to women in matters of inheritance, adoption, maintenance and custodial rights.

3 Historically, reform and codification of personal laws eroded some of the custo-mary variations and diversities within communities. In other words as a principle of plurality, it has so far been in danger o f cancelling itself out by advocating homogeneity withinexistingcommunitics. Moreover defence of personal laws on the grounds of defence of community is no different, in theory, from defence of a UCC on the ground of defence of the nation - it is simply that different types of particularity are being defended and the choice between them is either arbitrary or self-interested and politically motivated

4 Personal laws are applicable to all members of a community by virtue of being born into that community. As such these laws do not allow any choice to individuals who may be non-believers or dissenters, or believers who do not wish to be governed by discriminatory and unjust laws which are violative of their fundamental rights As feminists, we are committed to t he right to chosen polit ical aff i l iat ion that rests neither on biological difference nor on belonging by birth. Our commitment is to a broad-based struggle against patriarchal oppression,

5 E q u a l l y we need to think about the democratic principles infringed in allowing so-called group or community rights to override women's indi vidual rights. Where community rights infringe the rights of women and other groups w i t h i n the community, they are to be rejected. We feel that the focus must be shifted un-ambiguously to working towards the non-negotiable and inalienable rights o f citizens.

We, as a group, feel we cannot speak on behalf of community identities and that our own role cannot be that of working out the modalities from within. Reform from within involves adopting the role of interlocutor within a community as also the question of

.the reinterpretation of religious texts. We also see the l imited success of the

historical process of reforms in all personal laws (Parsi, Christian, Hindu and Muslim) and its failure to abolish patriarchal privi-leges. Current attempts at reform flounder against the entrenched patriarchal and institutional power of religious leaders; they are setting l imits on who can be the agents of reform, on the terms of these reforms as well as on the strategies for such reforms. As a result, proposals for reform are either watered down or curtailed or are simply not enabling for women. Present attempts, as in the case of the proposed Christian Marriages Act, are also being brought to an impasse by the prevarications of the state.

At the same time we feel that all efforts within any community for reform are intrinsic parts of a wider political process and the larger debate on equal rights for women. We hope they w i l l respond to and enter into a dialogue with our suggestions.

We realise the di f f icul ty of our project for rethinking laws m a climate where minorities feel beleaguered by majoritarianism. This is all the more so because refraining laws is perceived to be an attack on minorities. However, we feel that the struggle for formal equality and rights for all women including those belonging to minorities cannot be surrendered. And the struggle for the rights of all women should attempt not to contribute to a situation in which minority rights are pitted against women's rights.

This struggle must be accompanied by a genuine commitment to the protection of minorities on the part of citizens and state especially given the structural discrimination against minorities. A f i rm commitment to the protection of minority interests neces-sitates ensuring the punishment of those guilty of riot violence. Those guilty of loot, arson and k i l l ing have hitherto tended to go away scot-free. We are opposed to the poli-tical manipulation of all religious identities. Further, the slate's indulgence towards the criminal activities of the Hindutva brigade, the abscnce of criminal prosecution, com-bined with the government's recognition of the religious leadership of every denomi-nation as legitimate interlocutor in fact promotes the erosion of popular sovereignty.

REVERSING THE- OPTION

Our effort is to extract the discussion on the UCC from the framework of the com-parative rights of communities - between each other and between communities and the nation - and to recast this discussion in terms of the rights of women as citizens occupying the public sphere, wi th rights to work, to

Economic and Political Weekly .May 18, 1996 1181

equal wages, to equality within the family, in a way which does not compartmentalise the public and the private. In other words, equal rights that can procure gender justice should not exclude affirmative action or protection for women.

Since women's oppression is located in organised and unorganised collectivities be it state, family, community, workplace, only a concept of rights can address these in their totality. Here lies the possibility of a tangible gain in the shape of law as well as a marked advance in intellectual and political life, since in the struggle to protect and actualise these rights there would be mobilisation and wider debate among feminist, left and democratic groups or organisations.

We have devised a system of options in keeping with (a) our commitment to rights; (b) our understanding of the present political situation, in which personal laws not only have a legal presence, but have further become 'symbolic' of community identity and an object of communalisation. We are in full agreement with all feminist, left and democratic groups who would like to expand the number of secular laws. However, we differ with the modalities of options begin suggested by some feminist groups at present: these rest on making it more possible for women to opt out of personal laws and choose secular laws. We would like to reverse this modality for two reasons: one, we wish to challenge the way in which women (and men) are legally f ixed into birth-based religious communities; and two, because such a primordial location makes shifting out of it moredifficult, especially for women.

The three central planks of our proposal, which wi l l enlarge the scope for democratic participation of citizens, are:

(1 )Thc preparation and institutionalisation of a comprehensive package of legislation which would embody gender justice and would be far wider in its scope than existing laws, including the personal. This package would cover not only equal rights for women within the family in terms of access to property, guardianship rights, right to the matrimonial home, etc; it would also cover equal wages for equal work, creche facilities at the workplace, ant i -d iscr iminatory provisions in recruitment, promotions and job allocation, etc. This must be accompanied by a package of social security measures which wi l l make women less vulnerable and bolster their economic rights in all spheres.

(2) Al l those who are born as or become citizens of India would come under the purview of this framework of common laws. That is, these laws would be the birthright of every man and every woman who is or becomes a citizen of India.

(3) Al l citizens would also have the right to choose, at any point in their lives, to be governed by personal laws i f they so desire. The choice to be governed by personal law has to be adeliberatedecisionby an individual

citizen expressly seeking the application of personal laws. I f such a choice is not made, the new gender-just legislation would be ap-plied. In keeping with our conceptual frame-work of gender-just laws as the rights of citizens, we believe that citizens who have chosen personal laws should be able to revoke their choice and move back to the common laws at a moment of legal conflict. Further, since the gender-just laws wi l l cover an area much wider than the personal laws, only those provisions of the new laws which cover the same areas as personal laws wi l l be revocable.

We would like to clarify here that the choices that is to be made wi l l be about remaining within secular laws or choosing to be governed by personal laws, not about belonging to a religious community. That is, we make a distinction between religious community/religious practice on the one hand (which is not our focus in this context), and personal laws administered along community lines, on the other which is our concern. By being born within gender-just laws citizens do not cease to have religious affiliations, they simply are no longer automatically subject to the personal law of their community.

This proposal would mean a major reversal of the present situation where all citizens are governed by personal laws unless they make a decision to opt for secular laws. As things stand, this can only be done at marriage, which then automatically entails the opera-tion of a set of succession and other laws. Our proposal reverses the option in a manner that ensures both democratic principles and the right to choose in a more enabling way.

The new gender-just laws should be open to contest and further change on the grounds that they are not secular, democratic or gender-just. In this sense we do not consider this to be a final solution but an enabling provision. Thus, i f a more gender-just provision exists in customary law, then it should be taken into account.

In the present context, the exercise of democratic rights is assumed rather than consciously asserted, as well as one-sided. It is assumed or taken-for-granted because citizens are preforce born under personal laws. It is one-sided because in practice this right has been asserted primarily by self-proclaimed representatives o f communities and has in fact worked against the right of women from different religious groups to exercise their choice.

It is precisely because of the denial of democratic rights to women in all com-munities, that we feel it is important to ensure that common gender-just laws are established as the right of every citizen. This then should be the norm against which the choice to be governed by personal laws should be exercised. This wi l l imply that communities would have to justify personal laws to their own constituencies, it would lead to a truly democratic process of the

mobilisation of women by different groups and movements as well as act as an impetus for genuine social change.

At the same time, given the infringement of citizens' rights by different levels of state administration, particularly in a communal context, the legal enforceability of the proposal for reverse optionality has to also ensure that there are counterva i l ing organisations which prevent the abuse of this option for sectarian interests.

Since this proposal ensures the principle of democratic choice and initiates a demo-cratic process for the assertion of rights, it cannot be seen as an imposition or violation of minority rights or as targeted at any one community. In fact, we seereverseoptionality challenging current wisdom and shifting the terms of the debate which poses the problem only in terms of the fol lowing pairs of dichotomies-nation/community, individual/ collective, majority/minorities - in all of which women as a category are rendered invisible.

We are aware that legal reform as a means to counter oppression, whether of women or of any other group or class, is a limited strategy. It does not necessarily challenge the deeper relationships of inequality which would continue to prevail despite formal equality. Further, the access to law is differentiated across class, caste, gender and so on, while the application of the law by judicial and other agencies is, very often, discriminatory.

We recognise that the mere existence of formal rights does not address the public/ private dichotomy, illegitimise hierarchical gender relations, ordoaway with proprietary rights of men over women, with the unequal division of labour and the power to allocate resources. Unless these deeper structural changes occur, formal equality wi l l not end oppression of women and might result in new forms of patriarchal control within the family, community, workplace and the state.

We also recognise that the possibilities of exercising choice are conditioned by the vulnerable position that women occupy in society and the pressures exerted by the family and community representatives. The conditions of choice become even more limited in communalised situations.

Nevertheless, it is possible that through the institution of legal rights in the political, eco-nomic and social arenas, hierarchical gender relations wi l l be challenged, patriarchal authority would be undermined, and the public/private dichotomy could get eroded.

The provision of re verse optionality would thus offer a real challenge to some forms of oppression even i f i t cannot necessarily end them.

SUGGESTIONS FOR DISCUSSION

We outline below the broad principles in our proposal as suggestions for discussion:

(1) A l l citizens are guaranteed the common

1182 Economic and Political Weekly .May 18, 1996

secular gender-just law, but can choose to opt for their personal laws.

(2) These laws w i l l be based on the principle o f equal rights for women as well as on the principle of aff irmative action wherever necessary.

(3) These laws wi l l be comprehensive covering areas o f marriage, compulsory registration of marriages, divorce, inheri-tance, guardianship, rights of residence, rights to matrimonial property, domestic violence as well as access to resources, rights to work, equal wages and benefits.

(4) Once the principle of reverse optiona-lity is operationalised there would be, at a point in time, three categories o f citizens:

(a) citizens who are governed by common gender-just laws, (b) citizens who express an option for personal laws, and (c) citizens who are caught in a situation of confl ict i f one party has chosen personal law,

(5) In the case of a conflict, contest or unforeseen contradictions between secular law and personal law, the broad principle should be that secular law should prevail

(6)Thedecisiontobe governed by personal law should be revocable at moments of legal conflict. The principle of revocability is important because the decision to choose personal law can be f orced on young women, particularly at sensitive moments (such as marriage) when they would f ind it dif f icult to express their own opinion. Therefore the right to gender-just laws should not be irretrievably lost.

(7) The content and ambit o f the gender-just laws wi l l be far wider than the present laws, since it w i l l bring in new legislation as well as change the scope and content of the present laws. Only those provisions of the new laws which cover the same area as personal laws w i l l be revocable.

In our discussions with women's groups and c iv i l rights points/groups, the various points of crit icism have emerged.

There is the argument that (a) to permit a return to unjust personal

laws is undemocratic. We would respond that our proposal takes away no right that women already have, and further, enables many more women to be covered by gender-just laws. At present we have a set o f personal laws and a few secular laws. Structured as they are at present, and in an atmosphere of growing communalisation which inhibits the process of secularisation, the effectivity of secular laws has been negligible. Also, under pressure f rom orthodox sections of various communities, these secular laws has been diluted over the years. By reversing the option, that is, by privi leging the gender-just laws as citizen's rights and making personal laws a matter of choice, we feel that a larger number of people w i l l be able to avail of , from our perspective, the more desirable package. Women are already constrained in at least two ways - in getting access to any legal arbitration and in choosing

secular laws above personal laws, ic, vis-a-vis the legal system in general and personal laws in particular. Our proposal w i l l ease the latter constraint.

Further, we hold that retaining a space for the operation of personal laws is not merely a strategic compromise with existing political realities. Rather, in order to bring about a thoroughgoing democratisation and secula-risation of civi l society, it is not sufficient to have secular policies imposed by the state. This has to be made possible by leaving open the space for social transformation.

(b) It is suggested that our proposal of gender-just laws as cit izen's rights w i l l backfire upon the moves in some quarters to reform personal laws from within, and that such initiatives w i l l be blocked. This fear, we feel, is misplaced. By incorporating the personal laws in the system of options, we have actually provided for the continued existence of personal laws. Further, the process o f reform can in fact be accelerated by providing a concrete and positi ve horizon of non-patriarchal gender-just laws against which personal laws can be measured. Individual citizens and democratic groups can then push for reformed personal laws as laws that they would prefer to opt for i f they measured up to standards of justice and equality.

(c) Many groups seethe UCC as an ultimate horizon but feel that the present situation is not conducive for such a move. We agree wi th their analysis of the present situation as constituted by a compromised state and a communalised society in which the agenda of gender-just laws has been set back even further. However, precisely for this reason we feel that our position is a viable one as it leaves no room for the endless deferral of equal laws whi le it allows for the con-tinuance of the personal laws for those who might wish to be governed by them. There is thus no need to wait for a polit ically condu-cive moment to introduce these equal laws.

Some groups advocate the expansion of the secular ground through strategies in the interim period. They have suggested the introduction o f specific egalitarian laws in areas not covered by existing personal laws. However, recent experience has shown that orthodox elements in communities respond toinit iativesforgender-justlawsby claiming exemption from these, for the whole com-munity. The policy of granting exemptions is dangerous as it can lead to further communalisation. The option suggested by us wi l l al low individuals to choose to be governed by personal laws, but w i l l prevent whole aggregates from being excluded at one stroke from the ambit of gender-just laws without having any say in the matter.

(d) It is suggested that the form of legal option we are advocating is impracticable and likely to create legal confusion. However, multiple lawscoveringthesame areas already exist. For instance, the Special Marriages Act functions alongside the personal laws, while in certain areas such as maintenance the choices are already operating. The con-fusion w i l l be no greater than it already is.

The kind of problems that w i l l be created by moving from one set of laws to another, the 'bridging' clauses that may be needed, can be worked out law by law and clause by clause.

Can we all agree in principle on the ultimate need for a body of thoroughgoing legislation which w i l l benefit all women in the long run. We ask those groups who might not share our view of the option to come together for drafting and concretising a new package of gender-just laws.

[Working Group on Women's Rights wish to thank Saheli (Sadhna, Vrinda Grover. Ranjana Padhi and Lata Singh), Rajeev Dhawan, Lotika Sarkar, Kirt i Singh, Rajni Palriwala, Indu Agnihotri, Joseph Mathai, Gouri Chowdhury, and I'sha Ramanathan for their participation in some of the discussions and to PUDR for their written comment.]

Economic and Political Weekly .May 18, 1996 1183

Uniform Civil Code Implications of Supreme Court Intervention S P Sa the

Different ethnic, religious and linguistic groups have different traditions and cultures and they are entitled to preserve them. Their personal laws are based on these traditions and cultures and therefore cannot he obliterated just for the sake of uniformity. A uniform law will have to accommodate such ritualistic diversities.

IN a recent case (Sarla Mudgal) where a Hindu had converted himself to Islam in order to marry a record wife while the first was living, thc Supreme Court was provoked to ask the union government what it had done in pursuance of the directive principle of state policy contained in articlc 4 4 of the Constitution, which enjoins upon it to take steps for providing a uniform civil code. This has triggered a debate on this subject again. While uniform civil code as an ideal is doubtless laudable, the liming and the occasion lor the Supreme Court's inter-vention was not opportune. Further, the speeches which the judges have made are likely to be misunderstood and could send wrong signals to various quarters. They could strengthen the majoritarian chauvinism on the one hand and minority fundamentalism on the other

In fact uniform civil code, like the cause of Hindi as a national language has suffered due to overenthusiaslic espousal by its crusaders. The minorities, including the Muslims, might have been less resistant lo modernisation of their personal laws, if the kind of arguments which arc often made by its supporters had been avoided. Some such arguments were unfortunately aired out by the learned judges of the Supreme Court and this furl her complicated this issue.

One of ihe judges Justice Kuldip Singh said I hat a uniform civi l code would strengthen national integration and thai ihe minorities should give up their commitment lo the two nation theory and agree to a uniform civil code, It was further said that ihe Hindus had accepted reforms in then personal laws and sacrificed for the national unity. The learned judge I here fore exhorted the state to lake steps lo provide a uniform civil code. Now that the Supreme Court has observed thai the above observations were not binding and were merely obiter dicta. they need to be carefully examined because even the obilers of the Supreme Court are worthy of greatest respect.

We already have uniform laws in matters other than family affairs such as marriage, d ivorce , maintenance , inheritance and adoption. The assumption that uniformity produces harmony and integration itself needs lo be questioned. We have one law

for the majority community and yet can we say that there is integration within it? There are disputes between the 'savarnas' and the 'dalits' and between various linguistic-groups. Did peoples of Karnataka and Tamil Nadu not kill each other recently when they quarrelled over the waters of the River Cauveri? Such dissent does not disappear by the presence of a common law. Democracy admits dissent and since ours is a plural society any effort to regiment various ethnic and linguistic groups into a uniform mould could be counterproductive. Identity must be distinguished from separatism. Having distinct identities is not against national integration and they do not necessarily lead to separatism. Differentcthnic, religious and linguistic groups have different traditions and cultures and they are entitled lo preserve them. Their personal laws are based on such variety of traditions and cultures and therefore cannot be obliterated just for the sake of uniformity.

One does not necessarily subscribe to the two nation theory or multiple nation theory by insisting upon the preservation of the status quo. Within one nation there can exist a number of legal systems. Jn fact federal government means the coexistence of such multiple legal systems. Our Constitution places the plenary legislative power in respect of family, inheritance, adoption, etc, in the Concurrent List of the Seventh Schedule thereby implying that both the centre as well as the states can make laws on these subjects. This means that Maharashtra may have its own family law different from thai of Karnataka in the US, each stale has its own matrimonial law.

Those who oppose changes in the personal laws are not necessarily anti-national, though we may call them status quoists and conservative. If you read the report of the Hindu Law Reform Committee chaired by B N Rau. you will see that various objections to the reform of ihc Hindu Law had been raised by leading members of the majority community and some of those objections were similar lo those which the minority leaders raise today. Even Rajendra Prasad, who was the president of India was not favourably disposed towards the proposed reforms of the Hindu Law. Reform of the

personal laws which is a precondition for the emergence of a uniform civil code gets delayed if one buttresses the case for it with such emotive arguments.

The Constitution doubtless visualises the emergence of a uniform civil code but does it mean a single law for all? Can wc not have different laws for different communities provided they are based on uniform principles of gender and social justice?

Article 4 4 of the Constitution which contains one of the directive principles of stale pol icy needs to be interpreted in consonance with the spirit of the Constitution. What the directive principle of state policy means is that there should be uniform laws but not necessarily a common law. The expressions 'uniform' and 'common' are often used interchangeably but they have different connotations. Extension of the majority c o m m u n i t y ' s law to all the minorities woul'4 doubtless make lor a common law but would it make a uniform law?The word 'uniform' in article44 means that all communities must be governed by uniform principles of gender justice and human justice. Each personal law therefore needs to be critiqued from the perspective of social and gender justice. It will mean the modernisation and humanisation of each personal law, A uniform law would mean not necessarily a common law but different personal taws based on uniform principles of equality of sexes and liberty of the indi-vidual, Let there be reform of each personal law so as to weed out gender injustice and outmoded traditions or practices. Article 44 of the Constitution must be interpreted in conjunction with article J4ofthcConstilution which guarantees equality before the law and equal protection ol the law. Article 14 al lows classif ication of the people and traditions, cultures and even religion in conjunction with either or both of them could be ihc basis of classification. This was the essence of the decision given by the Bombay High Court in Narasu Appa Mali's case in which two of India's most versatile judges namely, Chief Justice Chagla and Justice Gajendragadkar (who later became ihcchicfjusticeof'India) upheld the Bombay Prevention of Bigamous Marriages Act. 1946 on the ground that the prohibition of p o l y g a m y a m o n g Hindus was not a different treatment lo the Hindus on the ground of religion but was because of the different traditions, history of social reform and cultures. Certainly there can be no discrimination on the ground ol caste or sex and therefore such traditions which place women in subordinate position will have to be disregarded. Revision of the personal laws from such standpoint wit! ultimately take us towards a uniform civil code. Such uniformity can sustain the diversity of the laws. Uniform civil code should not be construed as a mandate for regimentation of

Economic and Political Weekly September 2, 1995 2165

the laws because such regimentation smacks of totalitarianism.

The central government, however, cannot be absolved from the charge of having neglected the welfare o f the minority communities. On the one hand it took no steps to modernise and reform the law of marriage and divorce pertaining to the Christians in spite of several requests from that community. The Law Commission made a study of that law and gave its report. 80th Report. (1980) and the Supreme Court as well as several high courts have exhorted the government for its inaction (Shah Bano, Man Rox and Swapna Ghosh. See Sat he 1991)

On the other hand it nullified whatever had been achieved through judicial process to wards the mitigation of the gender injustice in the Musl im Personal Law through decisions such as Shah Bano. In that case, the Supreme Court held that a Muslim divorcee was entitled to maintenance under sect ion 125 of the C o d e of Criminal Procedure from her husband even after the period of 'iddat '. The passing of the Muslim Women's Right on Divorce Act, 1986 was the most regressive legislative intervention which boosted the morale of the Muslim fundamentalists and orphaned the Muslim divorcees.

We feel happy that the union government is now taking up the reform of the Christian Matrimonial Law. This cou ld be the beginning of the process of modernisation of the personal laws. The government should follow this up by a law of adoption for all the communities. Such a law is necessary because at present the facility of adoption is not open to the minority communities. Under the Hindu Adoption Law, only a Hindu can adopt and only a Hindu child, cither born as a Hindu or brought up as a Hindu can be adopted.

Legislation for the Muslims cannot be indefinitely postponed. The argument that personal law is immune from the interven-tion of the sovereign legislature is not sustainable. The right to be governed by personal haw was never considered as part ol the right to freedom of religion guaranteed by article 25 of the Constitution. Moreover, freedom of religion guaranteed by article 25 of the Constitution is subject to "other provisions of this Part" which means it is subject to the provisions contained in Part III which contain guarantees of the fundamental r ights E v e n if f r e e d o m of r e l i g i o n comprehends the right to be governed by personal law, it does not cover the right to perpetuate denial of equality or personal liberty to a section of people who are governed by such personal law. Reform of the personal law would be for making these laws consistent with the fundamental rights of the women folk and would also be a measure of social welfare for which the state

can legislate under sub cl (b) of cl (2) of article 25 / Polygamy, unilateral divorce, absence of provision for maintenance for a di voreee are some of the curses which deserve to be weeded out

The Indian Secular Society has published a draft Indian Marriage and Divorce Act prepared by the scholars of the ILS Law College, Pune. Another draft on the law of inheritance and succession is in the offing. A draft of the common law of adoption has also been prepared by some organisations. The draft on Marriage Law published by the Indian Secular Society is flexible enough to accommodate the diversities of traditions and culture prevail ing among various communities in a uniform law. These drafts are i ntended to serve the purpose of providing a basi s for a meaningful debate on the subject which will be free from acrimonious or chauvinistic overtones.

While making these drafts we realised how difficult it would be to arrive at a common law. Our draft therefore had to accommodate diversities that exist in the personal laws. For example , the rules regard ing the prohib i ted d e g r e e s o f relationship are different in the Muslim Personal Law from those in the Hindu Law A Muslim can marry his first cousin or should a Hindu be permitted to marry a first cousin whereas such a marriage is totally forbidden for the Hindus. Should a Muslim be prohibited from marrying the first cousin or should a Hindu be permitted to marry a first cousin? Why should we really do that? Is it not better to allow each of these communities to fol low their own traditions?

A debate would take place on whether a person's right to dispose of his property by will should be restricted as is done under the Muslim law. It would be fiercely opposed by Hindus. Christians and Parsis who would say that such a restriction would go against individual liberty. The Muslim law provision on the other hand would doubtless ensure gender justice because daughters are often denied their inheritance by the willing away of the property.

Each community would like to enjoy its freedom regarding religious rites performed on a wedding. The insistence of the secularists that religion must be banished from all worldly affairs may be ideologically sound but practically not wise. Even the mighty Soviet Union did not succeed in banishing religion. The uniform law will have to accommodate such ritualistic diversities.

What is important is that the process of taking steps towards a uniform civil code should begin. So far this matter nas suffered either from total neglect of the governments or aggressive postures of the majoritarian elements.

References

Sat he. S P (1991) 'Secularism. Law and Constitution ol India' in M S Gore (ed) Secularism in India, pp 39 to 60, Indian Acadciny of Social Sciences.

Naraxu Appa Mali, All India Reporter 1952. Bombay, p 84.

Sarla . Mud^al (1995). Supreme Court Case, Vol X P 635

Shah Bano (1985): Supreme Court Cases, Vol 2, p 556.

2166 Economic and Political Weekly September 2, 1995

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Qazi Sarah Rasheed (sarah@iitk.ac.in) is a doctoral scholar at the Humanities and Social Sciences Department, Indian Institute of Technology, Kanpur. A K Sharma (arunk@iitk.ac.in) teaches at IIT, Kanpur.

Muslim Women’s Rights in India Codifi ed Personal Laws Needed

Qazi Sarah Rasheed, A K Sharma

Although laws like the Muslim Personal Law (Shariat) Application Act, 1937 and other laws are supposed to grant Muslim women rights and protect them from discriminatory customary laws, the absence of codifi cation of Muslim personal laws has resulted in many of the rights granted in religious texts getting negated or diluted. Against this reality, Muslim women’s groups have been campaigning for codifi cation of personal law.

Several laws have been enacted to address the concerns of Muslim women in India dealing primarily

with issues like marriage, divorce, main-tenance and inheritance. But at the com-munity or societal level, these laws do not help them much in seeking justice. The laws that are framed exclusively for Mus-lim women fail to protect their rights and prove ineffective in helping them enjoy the status as guaranteed to them in the Quran. In the absence of a codifi ed personal law, Muslim women in India are still subjected to gender injustice and inequalities.

The Shariat Application Act, 1937

In 1937, Muslim Personal Law (Shariat) Application Act was passed when India was still a British colony. Its main objec-tive was to govern the Muslim commu-nity by a unifi ed shariat law and not by the prevailing customary laws that have displaced the rules of the shariat law. The act states:

Notwithstanding any custom or usage to the contrary, in all questions (save questions re-lating to agricultural land) regarding intes-tate succession, special property of females, including personal property inherited or ob-tained under contract or gift or any other pro-vision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubara’at, maintenance, dower, guardianship, gifts, trust and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious en-dowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat) (Act No XXVI of 1937).

The application of the Shariat Act ensured the protection of Muslim women’s

rights from discriminatory customary laws, which prevented them from claim-ing their share of inheritance or to initi-ate a divorce as prescribed under the Islamic law (Kazi 1999). M H M Abdullah, who introduced the bill in the central legislature, stated:

The bill aims at securing uniformity of law among Muslims throughout British India in all their social and personal relations. By doing so it also recognises and does justice to the claims of women for inheriting family property who, under customary law, are de-barred from succeeding to the same. If Shariat law is applied they will automatically be enti-tled to inherit the same. (Lateef 1994: 43)

The Shariat Application Act is supposed to operate throughout India, but in practice it does not govern all Muslims in India, neither does it unify the hetero-geneous Muslim community under one shariat or Islamic law. The Shariat Act only states that Muslims will be gov-erned by their Muslim personal law but it does not specify the content of this law and is therefore open to varying inter-pretations. Muslims in India are divided into two main sects—Sunnis and Shias. The majority of Indian Muslims is Sunni. Sunnis are further divided on the basis of four schools of law: Hanafi , Shafi , Hanbali and Maliki. Shia Muslims are in a minority and comprise approximately 10%–15% of Indian Muslims. They too are divided into Ismailis, Bohras and Ithna-Ashari. The Shia and the Sunni apply their own understanding and interpretation of shariat and therefore have their own codifi ed laws (Kazi 1999). Although the provisions of the Shariat Act atte mpted to further the interests of Muslim women, in the absence of a single law, Muslim women are depen dent and are affected by the different interpretations of the shariat.

Moreover, the “cultural diversity among Muslims—including attitudes, habits, lan-guages and traditions—and a non-uniform diffusion of Islam over the centuries has

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resulted in a variety of Muslim laws and customary practices within Muslim com-munities in India” (Kazi 1999: 4). Subcom-munities like the Kutchi Memons, Khojas, Bohras and Molesalam Girasias have ac-cepted Islam but continue to have their own separate sets of customary law be-cause of their Hindu background (Ullah 1932). After conversion, these communities retained some portion of their personal laws as their long established custom, such as the Hindu law of inheritance and succession (Mulla 2013).

Muslims of union territories like Goa, Daman and Diu and Pondicherry are also not governed by this act. Moreover, the Shariat Act is not known to the state of Jammu & Kashmir (J&K) (Milli Gazette 2014). In all matters of family law and succession, Muslims in J&K are governed by the Sri Pratap Consolidation of Laws Act, 1920. According to Tahir Mahmood (1981: 3), in J&K, “the Muslims have had the customs of khanadamad, pisar-i par-warda, dukhtar-i khananashin, dukhtar berun-i khana, agnatic succession and exclusion of females from inheritance—each of which has no place in the tradi-tional Islamic law and confl icts with its settled interpretations.” Therefore, the only Muslim majority state in India does not follow the same personal law as the rest of the country.

The Dissolution of Muslim Marriages Act, 1939

The Dissolution of Muslim Marriages Act was passed on 17 March 1939 by the central legislature. The primary objec-tive of the act was:

to consolidate and clarify the provisions of Mus-lim law relating to suits for dissolution of mar-riage by women married under Muslim law and to remove doubts as to the effect of the renun-ciation of Islam by a married Muslim woman on her marriage tie (Act No VIII of 1939).

Under the Hanafi code of Muslim law, the right to divorce was only given to men. Muslim women had no right to get a divorce in case the husband failed to main-tain her, deserted her or ill-treated her. They lacked legal support if they needed to terminate their marriage that resulted in “unspeakable misery to innumerable Muslim women in British India” (Hussain 2015: 7). Therefore, in order to seek divorce, many Muslim women would convert to

other religions as apostasy served a valid ground for the dissolution of marriage. A distinguished member of the Punjab Civil Service in the 1930s, Sheikh Abdul Haq states in his book, Apostasy and Muslim Marriage: “If a Muslim woman wants to get rid of her husband, she has just to go to a Christian missionary, take a certifi -cate of baptism and ipso facto the mar-riage is dissolved” (Abdul Haq nd: iii). During the early decades of the 20th century, there were an increasing number of Muslim women who renounced Islam so as to come out of abusive marriages.

To curb the tendency of renunciation of Islam and to address the issue of Muslim women’s rights to seek divorce, Maulana Ashraf Ali Thanvi issued a treatise enti-tled Al-hilat un-Najiza li’l-Halitat al-‘Ajiza (The Successful Legal Stratagem for Helpless Wives) in 1933 so as to “provide a more direct route of salvation for women who become so desperate and distraught that they are forced to leave Islam in order to escape their marital situations” (Khan 2008: 5). In his fatwa, he stated that apostasy does not annul a Muslim marriage. However, a Muslim woman can seek a judicial divorce on various grounds as stated by the Maliki school of juris-prudence. In response to his opinion, a bill was introduced in the central legisla-tive assembly in 1936, which was passed and enacted in 1939 (Hussain 2015).

This particular legislation has fi ve sec-tions. Section 2 of the act provides nine grounds under which a Muslim woman shall be entitled to obtain a decree for the dissolution of her marriage. The act lays down the following grounds: (i) The whereabouts of the husband are not known for a period of four years. (ii) Failure of the husband to provide for the maintenance of the wife for a period of two years.(iii) Imprisonment of husband for a period of seven years or more. (iv) Failure of the husband to perform mar-ital obligations for a period of three years. (v) Impotency of husband since the time of marriage. (vi) Insanity of husband or is suffering from diseases like leprosy, venereal dis-ease, etc. (vii) Repudiation of marriage by wife before attaining the age of 18 years.

(viii) Cruelty of the husband. (ix) Any other ground which is recognised as valid for the dissolution of marriages under Muslim law.

The Dissolution of Muslim Marriages Act was enacted for the welfare of Muslim women. But this particular act has its own shortcomings as it only deals with the di-vorce issue and lacks clarity on other mat-ters like maintenance of the woman after divorce, custody of children, etc. For that a woman needs to fi le separate cases under different laws (Niaz and Apte 2012).

The Muslim Women (Protection of Rights on Divorce) Act, 1986

Women in India derive their rights to maintenance from two sources: fi rst, the personal law applicable to the commu nity of the person concerned and second, the Criminal Procedure Code (CrPC) of 1974 which is applicable to all Indians irrespective of their religion (Dube 2005).

Under Muslim personal law, a divor ced Muslim woman is liable for the mainte-nance till the period of iddat, that is, for three months following the div orce. In addition, she also receives the amount of mehr (dower) fi xed at the time of marriage. Other than this, the husband has no other fi nancial obligations towards his wife. But under Section 125 of the CrPC, a woman is entitled to receive maintenance from her ex-husband until she gets remarried.

Shah Bano, a 60-year-old woman from Bhopal, went to court seeking mainte-nance from her husband who divorced her after 43 years of marriage. The Madhya Pradesh High Court ruled in her favour. Shah Bano’s former husband, Mohammad Khan, appealed to the Supreme Court of India and claimed that under Muslim personal law, an ex-husband is not required to provide lifetime maintenance for his former wives. The Supreme Court dis-mis sed his appeal and upheld the mainte-nance order under Section 125 of the CrPC.

Muslim community members resented the Supreme Court’s judgment and under pressure from the Muslim orthodoxy, the Congress party, which was in power then, rushed to enact the Muslim Women (Protection of Rights on Div orce) Act, 1986. The act aims to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their

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husbands and to provide for matters connected therewith or incidental there-to (Act No XXV of 1986).

However, the enactment of the Muslim Women’s Act made the condition of Muslim women more miserable and pro-vided no relief to them. It exempted Muslim men from the purview of Section 125 CrPC. It stated that a husband is entitled to pay maintenance to his wife during the time period of her iddat. After that the responsibility of her main-tenance shifts to relatives and the state waqf board. Section 4(1) of the act lays down that a magistrate may direct those relatives of a divorced woman who has not remarried and is unable to maintain herself after the iddat period, who would be entitled to inherit her property on her death, to pay a reasonable and fair maintenance to her, keeping in mind the standard of life enjoyed by her during her marriage and the means of those rel-atives. According to Section 4(2) of the act, if the divorced woman has no rela-tives or if they do not have enough means to pay the maintenance, the magistrate may direct the state waqf board to pay maintenance to the divorced woman.

The bill was criticised by those who saw it as a setback for Muslim women. First, it made women vulnerable and dependent on relatives and second, the corruption, bankruptcy and mismanagement of the waqf boards made it “diffi cult to ascertain whether or not the Wakf Boards will be able to take on the responsibility of giving adequate maintenance to destitute di-vorcees, for functioning of Wakf Boards is shrouded in mystery” (Ghosh 1987: 152).

The act stirred a nationwide debate on Muslim personal law and resulted in the mobilisation of various Muslim women’s groups at the local and national level. Many Muslim organisations came to the forefront to address the issues of Muslim women’s entitlements within marriage in order to promote and safe-guard their interest.

Codifi cation of Personal Law

Muslim personal law has not been sub-jected to any legislative changes since independence. There are hardly any efforts made to codify personal laws as has been done in other Muslim countries. In India,

the move has always been resisted on three grounds: that personal laws are based on shariat which is divine and therefore unalterable; it is impossible to assimilate the four schools of Islamic jurisprudence in codifi cation and, Muslims take the codifi cation as the fi rst step towards enacting a Uniform Civil Code (UCC).

Asghar Ali Engineer (2009) argues that Muslims defend and resist any kind of reform in Muslim personal law think-ing that it is divine. But the personal law as practised today is actually the Anglo-Muhammadan law which was practised before independence. It was renamed as Muslim personal law after independence. Solanki (2011: 268) argues that “Muslim Personal Law in post colonial India is based on local custom, Islamic laws and precepts, customary laws made by sect-based organisations, state-law enactments, and judicial precedent.” Therefore, Muslim personal law as practised today is not completely in compliance with the shariat as a result of which certain aspects of it are unjust to Muslim women.

Against this background, in 2011 Shaista Amber, President of the All India Muslim Women’s Personal Law Board (AIMWPLB), asked for codifi cation of Muslim personal law. She addressed a letter to the then President of India, Pratibha Patil, asking for a law for the shariat rights for Muslim women. A similar initiative was taken by the Bharatiya Muslim Mahila Andolan (BMMA) asking for the codifi cation of Muslim family law. The organisation re-leased a draft tit led “The Muslim Marriage and Divorce Act” in 2014 that addressed issues concerning the age of marriage, mehr, maintenance, custody of children and sought a total ban on polygamy, oral, unilateral and triple divorce. The draft was circulated to the National Commission for Women, the National Human Rights Commission, the National Minorities Com-mission and other stakeholders. In 2015, the co-founders of BMMA, Noorjehan Safi a Niaz and Zakia Soman wrote a letter to Prime Minister Narendra Modi asking for codifi cation of the personal law as per the draft prepared by them. In the letter they stated, “Certain orthodox and patri-archal males have dominated the debate on rights of Muslim women and have stonewalled any atte mpt towards reform

in Muslim personal law. In the process the Muslim women have been denied their Quranic rights as well as their rights as equal Indian citizens.” Based on their research conducted with a primary sample of 4,710 Muslim women across 10 states, the letter added, “Justice of Indian Muslim women can be enabled either through amendments to the Shariat Appli-cation Act, 1937 as well as the Dissolution of Muslim Marriages Act, 1939 or a completely new enactment of Muslim personal law” (BMMA 2015).

The demand for a codifi ed personal law is seen as the fi rst step towards achieving gender justice and equality for all Muslim women in India. There are several interpretations of Muslim personal laws and unless these are codifi ed and passed by Parliament, Muslim women will continue to be denied equal rights in family matters. Where the previously enacted laws failed to bring about sig-nifi cant changes in the lives of Muslim women, the codifi cation of the Muslim Personal Law based on the Islamic frame-work would give women more rights as guaranteed by the Quran and hadiths.

References

Abdul Haq, Sheikh (nd): Apostasy and Muslim Mar-riage, Lahore: Dar-ul-Kutub Islamia.

Bharatiya Muslim Mahila Andolan (BMMA) (2015): “Letter to P M Demanding Codifi cation of Mus-lim Family Law,” https://bmmaindia.com/ 2015/11/27/letter-to-pm-demanding-codifi ca-tion-of-muslim-family-law/.

Dube, S C (2005): Indian Society, New Delhi: Na-tional Book Trust.

Engineer, Asghar Ali (2009): “Why Codifi cation of Muslim Personal Law?,” Counter Currents, http: //www.countercurrents.org/engineer 020509.htm.

Ghosh, S K (1987): Muslim Politics in India, New Delhi: Ashish Publishing House.

Hussain, Sabiha (2015): “A Socio-historical and Po-litical Discourse on the Rights of Muslim Women: Concerns for Women’s Rights or Community Identity (Special reference to 1937 and 1939 Acts), Journal of International Women’s Studies, Vol 16, No 2, pp 1–14.

Indian Kanoon (2016): “The Muslim Personal Law (Shariat) Application Act 1937,” https://indian-kanoon.org/doc/1325952/The Dissolution of Muslim Marriage Act 1939, https://indianka-noon.org/doc/1458498/The Muslim Women (Protection of Rights on Divorce) Act 1986, https://indiankanoon.org/doc/1933289/.

Kazi, Seema (1999): “Muslim Women in India,” report by Minority Rights Group International, London.

Khan, Fareeha (2008): “Traditionalist Approaches to Shari’ah Reform: Mawlana Ashraf ‘Ali Thanawi’s Fatwa on Women’s Right to Divorce,” Doctoral Dissertation, The University of Michi-gan, Michigan, US.

Lateef, Shahida (1994): “Defi ning Women through Legislation,” Forging Identities: Gender,

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Communities and the State, Zoya Hasan (ed), New Delhi: Kali for Women.

Mahmood, Tahir (1981): “Application of Muslim Personal Law in the State of Jammu and Kashmir: Perspectives and Prospects,” Islamic and Com-parative Law Quarterly, Vol 1, No 4, pp 273–81.

Milli Gazette (2014): “The Muslim Personal Law,” 1–15 February, http://www.milligazette.com/

news/9904-the-muslim-personal-law.Mulla, Dinshaw Fardunji (2013): Principles of Muham-

madan Law, Nagpur: LexisNexis Butterworths Wadhwa

Niaz, N S and J S Apte (2012): “Muslim Women and Law Reforms: Concerns and Initiatives of the Excluded within the Excluded,” Lives of Mus-lims in India: Politics, Exclusion and Violence,

Abdul Shaban (ed), Routledge: New Delhi. Solanki, Gopika (2011): Adjudication in Religious

Family Laws: Cultural Accommodation, Legal Pluralism, and Women’s Rights in India, Cam-bridge: Cambridge University Press.

Ullah, Al-Haj Mahomed (1932): The Development of Muslim Law in British India, Allahabad: S Sultan Law Publisher.

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Politics of the Uniform Civil Code in India

Peter Ronald deSouza

Peter Ronald deSouza (peter@csds.in) is at the Centre for the Study of Developing Societies, Delhi. He also holds the Dr S Radhakrishna Chair of the Rajya Sabha (2105–17).

The debate on the Uniform Civil Code in India has passed

through three phases which have been grounded in

different normative concerns, that is, national

consolidation, equality of laws, and now gender justice.

Since the normative goals of a polity and political

contingency are in a perpetual struggle in India, the time

is appropriate for us to visit the UCC debate with a view to

strengthening our constitutional democracy. This article

after presenting an overview of the debate suggests that

there are mainly two paths to follow to meet this

aspiration: (i) changing the ecology of laws relating to

women, and (ii) adopting the common civil code that is

prevalent in Goa.

One of the persistent contradictions that the postcolonial democratic state in India has had to deal with concerns the enactment of a Uniform Civil Code (UCC)

for India. This contradiction began life in the Constituent Assembly itself when it was moved from the Fundamental Rights chapter to that of the Directive Principles of the Constitution, a political compromise that made it recommendatory for the state to enact an UCC, but one which was not justiciable. Over the objections of Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur, members of the Constituent Assembly who saw this as an unacceptable compromise, Article 44 entered the Constitution recommending that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Over the past 65 years Article 44 has repeatedly been invoked by courts, whenever a dispute on personal laws reaches the public sphere, to remind the state of its pending obligations. This has produced a rich public debate about the deepening of democracy in India. In this paper I shall look at the landscape of this debate.

The common issue running through the various phases of this debate has been the arguments relating to the “terms” of this politics of compromise. As the classic tension between the dynamics of politics and the promises of law plays out, advances and reverses take place on the normative commitments that the emerging new polity must make. On probing the dynamics of this tension some interesting subsidiary questions emerge. For example, if a society is to engage with modernity, in its political form of a constitutional democracy, how can law facilitate such engagement? What resistances does such engagement confront? Do these resistances come from progressive and/or regressive forces? How should the institutions of politics, and of law, deal with them? Is a coercive strategy of imposition preferable to a persuasive strategy of consensus building especially in a politically stubborn society such as India where mobilisations can often be very retrogressive? In such a situation what are the obligations of a secular state faced with a communal society? This paper will provide a brief overview of the stages and phases through which this contradiction has evolved. We must through this narrative, however, not lose sight of the central question that runs through this saga: What is the role of law as an instru-ment of social and political reform in a postcolonial state?

Historical Overview

It is perhaps pertinent to begin the analysis in the colonial period. Two aspects are relevant here. The fi rst concerns the confl ict between the protections of law and the forces of cultural orthodoxy as was played out in the Rukhmabai case (1884–88).

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The second refers to the process of codifi cation of the personal laws of the dominant communities by the colonial state.

Rukhmabai was married at the age of 11, a minor, to a person many years her senior, Dadaji Bhikaji Thakur, who had agreed to let her stay with her stepfather till she reached puberty. During this period she studied and developed a personality that exhibited personal independence of opinion and aspiration. When she attained majority her husband tried to persuade her, for many reasons including access to her inheritance, to come and live with him. She had never lived with him because her stepfather had insisted that till she attains puberty she would not enter the marital home. Rukhmabai, whose personality and views had over the years evolved, refused to enter the marital home because she had heard about her husband’s waywardness and had grown to dislike him (Chandra 2008). When persuasion and even mild threats failed he fi led a case in the Bombay High Court in 1885 for “restitution of conjugal rights.” He lost the case. He then went in appeal in 1886 and was given a favourable judgment in spite of which Rukhmabai still refused to enter the marital home preferring instead to face the punishment that the courts chose to award.

During this legal contestation a public debate ensued between the orthodox or anti-reform faction and the reformist faction of the Hindu community. The orthodox bloc, led by Bal Gangadhar Tilak and Rao Bahadur Mandalik, forwarded many arguments, such as marriage customs had religious sanction since they were practices that were derived from sacred texts, wives must consent to sexual intercourse with their husbands, especially since they were instruments of procrea-tion, it is the wife’s duty to live with her husband, etc. The or-thodox faction saw the law as interfering with the cultural practices of the Hindus which was beyond its jurisdiction since these practices were derived from the shastras. The reformist faction, led by M G Ranade, G G Agarkar and K T Telang, in contrast used modernist arguments in defence of Rukhmabai such as, as a minor she could not be held to the terms of the marriage contract since she had not consented to it as a responsible adult, that “restitution” was not possible since “consummation” had not taken place, and that her wishes on achieving adulthood were alone relevant to the case.

The case makes fascinating reading but what is relevant for our discussion is that even a century earlier the role of modern law and the juridical institutions of the state was disputed in terms of its authority to intervene on an issue concerning the rights and obligation of the two parties to a marriage. In this instance it was a debate within the Hindu community on whether it was permissible for the secular law to adjudicate on a marital dispute governed by religious laws. In spite of the public protests on the state’s interference the decision of the state was accepted and a compromise was reached for a monetary settlement that Rukhmabai’s husband accepted (Ranjan 2005). Similar issues, to those raised in the Rukhmabai case, fi nd expression in UCC disputes today except that here they now concern the Muslim community. It is interesting that the case law on marriage, inheritance, divorce, etc, from England was unavailable for the colonial courts to draw upon since all

the cases concerned a dispute between two persons who were majors whereas in the Rukhmabai case the marriage was between a minor and a major. New principles had to be invoked to decide the case. I mention this interesting snippet because it is such conundrums that modern law in India has to deal with as it strives to establish the rule of law in a society engaging with the forces of modernity. The challenge of building a modern state is to determine how many of the aspects of the old social order can be incorporated into the emerging new constitutional order so that they remain con-sistent with the principles of this new order for example, equal citizenship, while giving an impression of continuity with the old order.

Codification of Personal Laws

The second aspect concerns the process of codifi cation of personal laws by the colonial state. Because it had to adjudicate on matters relating to marriage, divorce, adoption, inheritance, that is, on family and property matters, the colonial state initiated a process of bringing together the diverse practices of different groups and regions in India into what came to acquire a semblance of a common code for the community. By employing the services of Brahmin priests and experts in the shastras and of Muslim clerics, who were trained in the Qur’an and the Al-Hadith, the colonial state produced texts which became the basis for judges to adjudicate on property and family disputes in the courts (Ghosh 2007; Menski 2008; Agnes 1999; Parashar 2000). There are several texts that were created as a result of this codifi cation, such as Thomas Strange’s Elements of Hindu Law and later the Shariat Act of 1937 and the Dissolution of Muslim Marriages Act of 1939. The list of texts produced through such an exercise of codifi cation, during the colonial period, is extensive and need not be listed here but what is of relevance for our discussion of the UCC today, from this exercise of codifi cation, is the active role of the state in the preparation of a set of legal texts on property and family laws which were then available to the courts for the adjudication of disputes. Further, this codifi cation happened with the active assistance of scholars from both the Hindu and Muslim communities. The codes then came to be owned by the respective communities. This role of the state becomes relevant because, under democratic India, when the politics of communities emerges, there is resistance to state interference based on the argument that reform should come from within communities alone. I will return to this issue in a later section.

The next major historical location for the UCC debate was when the imagination for a free India was being forged in the debates in the Constituent Assembly. The decision to place it in the Directive Principles of State Policy, Article 35 in the draft and Article 44 in the fi nal Constitution, was based on the assurance given by Nehru and Gandhi to the ulema that the enactment of a UCC would be postponed although it would remain an aspiration of the state (Ghosh 2007: 72). The grounds of this assurance were the trauma of partition where the Muslims who had elected to stay back in India were fearful that their customs and religious practices would be undermined in a

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Hindu India (Mullaly 2004: 677). The debate on the UCC came before the Constituent Assembly in 1948 after partition had occurred and hence it took place in the shadow of the horrifi c communal killings. Muslim members invoked the religious source of personal laws and argued against state intervention. K M Munshi, Alladi Krishnaswamy Iyer and B R Ambedkar in response argued for its place in the Directive Principles so that it would serve as a beacon for social reform. Ambedkar was fi rm in the view that it was permissible for the state to inter-vene in the religious domain by formulating laws especially when this intervention promoted the cause of social justice. For him, if this non-interference was conceded then no pro-gress was possible.

Coming to the question of saving personal law …. I should like to say this, that if such a saving clause was introduced into the Constitution, it would disable the legislatures in India from enacting any social measures whatsoever. The religious conceptions of this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved I am sure about it that in personal matters we will come to a standstill. … After all what are we having this liberty for? We are having this liberty in order to reform our social system which is full of inequities, so full of inequalites, discriminations and other things, which confl ict with our fundamental rights…. Having said that, I should also like to point out that all that the State is claiming in this matter is a power to legislate (Ambedkar 1949: 80).

Ambedkar’s statement in the closing stages of the debate in the Constituent Assembly was a clear acknowledgement of the role of law as an instrument of social reform, of almost an obli-gation for the state to use law to put an end to the inequities and discriminations that marked the social order and that often had their provenance in the domain of religion. For him, it was a clear modernist project of aspiring for equal citizenship. As chairman of the Drafting Committee, he was unwilling to countenance any undermining of this power of the state to in-tervene in matters of societal injustice.

The proceedings in the Constituent Assembly had ranged in the chapter on Fundamental Rights, on the different aspects of individual rights—Articles 14–19, and group rights—Articles 25–30. In keeping with constitutional principles everywhere these had been enshrined in the Fundamental Rights chapter to protect the individual against state tyranny and to both as-suage India’s minorities and protect India’s cultural diversity. As I shall show, the UCC controversy in the subsequent decades has taken place in the space created by this tension between indi-vidual rights and group rights, on how to reconcile the contrast-ing positions of inviolability that each set of rights claims for itself, and what role the state should play in this reconciliation.

The fi rst major moment for this exhibition of state power, by the democratic state to intervene in reforming personal laws, comes on the issue of the Hindu Code Bill. Over the resistance of the President of India, Rajendra Prasad, Sardar Patel and other conservative Congressmen, who felt that if women were given the right to divorce along with the right to inherit property, it would be harmful to Hindu society. Nehru had several acts passed that were a small step towards giving Hindu women greater equality of treatment. The Hindu Marriage Act 1955, the Special

Marriage Act 1954, the Hindu Minority and Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956, all of which seek to create a common law that governs the diverse practices of the Hindu community, were passed after a protracted political struggle. Two contrasting readings of this intervention by the state in personal laws of Hindus can be identifi ed. The fi rst, articulated by Madhu Kishwar in a long essay titled “Codifi ed Hindu Law: Myth and Reality,” argued that it was a “colonial-ist mindset of the English educated elite” that saw the state as an instrument of social reform and in passing these laws un-dermined the diversity of “community based law that had a greater implementability and allowed people more options” (Kishwar 1994: 2147). In contrast is the view of Ambedkar who felt that the truncation of the comprehensive Hindu Code Bill into several parts, and that too after extraordinary delay, was a regrettable step backwards. His resignation speech in the house, as law minister, records his dismay at the compromises made by Nehru with the conservative opponents of the reform. His anguish stems not just from the fact that the compromises were reached without his approval but also because parliamentary procedures were subverted to achieve them.

In regard to this Bill, I have been made to go through the greatest mental torture. The aid of Party machinery was denied to me. The Prime Minister gave freedom of Vote, an unusual thing in the history of the party. I do not mind it. But I expected two things. I expected a party whip as to time limit on speeches and instruction to the Chief Whip to move closure when suffi cient debate had taken place. A whip on time limit of speeches would have got the Bill through. … For days and hours fi libustering has gone on a single clause. But the Chief whip, whose duty it is to economise Government time and push on Government business, has been systematically absent when the Hindu Code has been under consideration in the house. I have never seen a case of a Chief whip so disloyal to the Prime Minister and a Prime Minister so loyal to a disloyal Chief Whip (Ambedkar 1951).

Although the various acts were passed, only after Ambedkar’s resignation, his speech on the episode highlights the tension between law and politics particularly when the state seeks to use law to promote social reform. The question of whether it is a “colonialist mindset” that seeks to impose a uniform set of laws and whether a plurality of laws must be encouraged especially in the domain of personal law (although interestingly the im-position of a uniform criminal law does not evoke the same objection) are questions that come into full play decades later when the Shah Bano case is decided by India’s Supreme Court.

Shah Bano Case

A hundred years after the Rukhmabai case, the Shah Bano case acquired intense public attention and produced similar arguments pertaining to the jurisdiction of the secular law and its institu-tions. In 1985, the Indian Supreme Court ruled that Shah Bano, a 68-year-old woman, was eligible for maintenance under Section 125 of the Code of Criminal Procedure. Her husband Moham-med Khan, an advocate, divorced her after 43 years of marriage when she had asked for maintenance. Her ex-husband had argued that after divorce his liability to maintain his wife was governed by the Muslim Personal Law which limited his responsibility to the three-month iddat period of three menstrual cycles and to mahr which was committed at the

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time of marriage. After fulfi lling these commitments mainte-nance was the responsibility of the divorced woman’s natal family and of the community through its Waqf income. The Court ruled otherwise and held that Section 125(3)(b) applied to the case and in its judgment noted that “mahr was a sum payable by the husband to the wife on divorce … an obligation imposed on the husband as a mark of respect” and therefore not an excuse for non-fulfi lment of the responsibilities under Section 125. In delivering the judgment the honourable justices went beyond the statute and sought to give additional legiti-macy to their judgment by offering an interpretation of sura 2:241 of the Holy Qur’an.

The judgment produced a massive political outrage in the Muslim community who, mobilised by their political leaders, objected to the secular law overriding the Muslim personal law, and worse to the Court interpreting the Holy Qur’an which, they argued, only a Muslim “alim” can do (Engineer 1999: 1488). The Court in its judgment had clearly defi ned the position that in the case of a confl ict of laws, for example, between religious and secular laws (even though in the Shah Bano case there was no such confl ict), the secular law would prevail and that was why responsibilities under Section 125 were being imposed (Rahman 1990; Sunder Rajan 2000). The political mobilisation among the Muslim community conducted by several Muslim organisations, such as the All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, Jamaat-e-Islami and Muslim League argued that the Supreme Court had transgressed its jurisdiction since “the Muslim personal law … was based on the Shariah, which is divine and immuta-ble, hence no legislative or executive authority could amend or alter its provisions” (Hasan 2014).1

In the face of these protests the Rajiv Gandhi government lost its nerve and sought to assuage the community by hurriedly reversing the many gains of the judgment by enacting the Muslim Women (Protection of Rights on Divorce) Bill 1985. This was done to appease what it perceived to be Muslim anger as had been conveyed to it by the dominant section of the Muslim leadership. It is pertinent to note that other voices in the Muslim community, albeit a minority, favoured the judgment as an ad-vance in Muslim women’s rights but these were not heard. Vote bank politics played an important part in this reversal since in the recent past the Congress had lost several elections that had been held soon after the judgment. The regime needed to do something to avoid the danger of alienating the crucial Muslim vote (Hasan 2014).2 Let us disregard, for the moment, the issue of whether the Supreme Court can interpret a religious text, if that text prescribes punishment on an individual in an area of social life which is also within the Court’s jurisdiction—a com-plex and relevant question that comes up in the Shah Bano case—and only focus on the judgment. We then need, at this point in the argument, to illuminate two issues: (i) the provisions of the secular and religious laws and whether they are in confl ict, and (ii) the political compulsions of the government.

There are four Sunni schools of Law—the Hanafi , Shafi , Malaki and Hanbali. The jurists in these schools have developed fi ne distinctions on the obligations of the husband to his divorced

wife with respect to the three payments of iddat, mahr and mataa. While there are different but largely overlapping interpretations on the fi rst two obligations there is wide disagreement on the third, mataa.

Mataa, a third, more controversial claim, may also be made. Mataa, based on Ayat 241 of the Holy Qur’an, requires that an ex-husband make a reasonable provision for his divorced wife. Opponents of mataa, including the majority of Islamic scholars from all Sunni schools, declare that Ayat’s exhortation is directed at the more pious and orthodox Muslims. This view implies that “sinners” are free to avoid the obligation of providing maintenance for their ex-wives. Supporters of mataa, a minority of Sunni Muslim Theologians, declare that this Ayat is addressed to all Muslims—it is not merely limited to the pious. However, the mataa claim, which is favorable to women is not usually enforced in secular courts (Rahman 1990: 476).

No Counter Discourse

The government should have responded to the mobilisation of the Muslim community by initiating a counter-discourse on the plurality of interpretations by Islamic jurists on iddat, mahr and mataa. Not only would this have contributed to a public education within the Muslim community, especially the women of the community, but it would also have educated the larger society about the fi ne points of Islamic law with respect to the rights of women.

Rather than take this more diffi cult road to strengthening the constitutional values of equality, the state enacted the Muslim Women (Protection of Rights on Divorce) Act (MWPRDA), 1986 where Article 3 (1)(a) entitles a Muslim woman at the time of divorce to “a reasonable and fair provision and maintenance to be paid to her within the iddat period by her former husband,” (c) “An amount equal to the sum of mahr or dower agreed to be paid to her at her time of marriage or at any time thereafter according to Muslim law”; and (e) “All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.” In the case of a dispute, the act (MWPRDA 1986) gives the power to a magistrate to enforce its provisions. The act gave the divorced woman and her former husband the option to be governed by the provisions of Section 125. This willingness to be governed by Section 125 had to be given on the date of their fi rst hearing or else it would not apply. As a result of the MWPRDA, Muslim women went outside the ambit of Section 125 because of the culture of patriarchy within the community. The enactment of the MWPRDA 1986 was seen by feminist groups and progressives as a capitulation to Muslim orthodoxy. Hindu communalists saw it as minority appeasement. Muslim progressives were dismayed and saw it as a retrogressive step against which their internal struggle for reform would now get so much harder.

The UCC issue, as a result of the Shah Bano case and MWPRDA, again came to the fore of public debate. In addition to the courts several civil society organisations entered the debate. A statement was issued by a women’s group on women’s rights comprising Amrita Chhachhi, Farida Khan, Gautam Navlakha, Kumkum Sangari, Neeraj Malik, Nivedita Menon, Ritu Menon, Tanika Sarkar, Uma Chakravarti, Urvashi Butalia and Zoya Hasan, on civil codes and personal laws where they offered

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three core ideas: (i) “the preparation and institutionalisation of a comprehensive package of legislation which would embody gender justice and would be far wider in its scope than exist-ing laws, including the personal,” (ii) “all citizens of India would come under the purview of this framework,” and (iii) “all citizens would also have the right to choose, at any point in their lives, to be governed by personal laws if they so desire” (Gandhi et al 1996). These constitute three axes around which the debate has subsequently evolved.

In trying to capture some of the ideas a model Nikahnama (contract of Muslim marriage) was prepared (Engineer 2005). Some Muslim groups challenged the authority of the AIMPLB to represent them, since it was seen as dominated by the Hanafi Sunni Ulama and so the All India Shia Muslim Law Board was formed. The establishment of NGOs such as the Awaaz-e-Niswaan in Mumbai created a new movement advocat-ing “women’s rights and the spread of legal awareness, not through languages of secularism but through Islamic scriptures and reinterpretations of the Sharia” (De 2013). This nuanced and wide-ranging public debate involving NGOs who come from dif-ferent political perspectives, political parties, the lower judici-ary, academics, and the media, has raised several important issues for our discussion on the role of the law in addressing issues of social reform in India.

Before we engage with these issues, however, we need to put two signifi cant issues on the analyst’s table. The fi rst is the growth of civil society in the decades beyond the 1980s in India. In contrast to the situation of the 1950s and 1960s, where the debate on UCC was more state-driven, today the debate is fuelled by civil society organisations. Feminist groups, Islamic groups, legal scholars, and political parties, share and challenge each other’s ideas resulting in a diversity of views whose spread has been assisted by the liberalisation of the electronic media. In addition, the Indian debate has got internationalised with different aspects of the confl ict of rights being fl agged in global law journals.3 This has also brought the global debates on rights, especially women’s rights, into the Indian debate. This has given the UCC discussion in India, especially post Shah Bano, a layered character that ranges from a discussion of the dynamics of local community politics, to the logic of electoral politics at the national level, to the domain of comparative politics of those Islamic countries that have responded to personal law issues by reinterpreting the Sharia, to women’s rights and substantive equality (Nussbaum 2001), to a defence of pluralism of laws and to reviews of resolu-tions in a situation of a confl ict of laws (Jain 2005).

This layered debate has come about because of several factors which need just to be acknowledged here but not elaborated upon. The fi rst is the expansion of the intellectual landscape in India and its engagement with global debates. This has meant the emergence of nuanced formulations on a range of issues such as women’s rights in postcolonial socie-ties, the limits of multiculturalism in Indian democracy, the balance between individual and group rights in a plural polity, the virtues of internal versus external reform of community practices, etc. The debate has become more nuanced not just

because it is now a global debate but also because the global debate has itself evolved in its use of core concepts. To this evolution of ideas and formulations is a generational shift in participants as a result of which feminist articulations which were more on the margins of public discourse, several decades ago, have today become more mainstream as young women who join the debate have grown up with ideas of gender equality and gender justice.

The second relates to the fact that the UCC debate is embedded in not just feminist politics but in party politics as well. In addition to a discussion of the obvious aspect of the consolidation of the Muslim and Hindu vote banks, by a politics of appeasement in the one case and a politics of opposing this appeasement in the other, is the allied issue that what is at stake in the UCC debate is two contrasting ideas of India. On the one hand is the idea of India being a majoritarian Hindu country and hence a uniformity of laws must be imposed similar to those enacted in the 1950s for the Hindu community, a position espoused by political groups linked to the Rashtriya Swayamsevak Sangh parivar, and on the other is the view of India as a plural secular polity which is willing to accept a future based on legal plural-ism, a view that has been espoused by a range of political parties. The UCC controversy allows for this shadow-boxing to take place among political parties as they compete in the electoral arena. It also is a site for a similar politics of positioning by various civil society groups. My purpose here is not to attempt a mapping of these different positions but just to acknowledge their existence and regard them as constituting the background to what I wish to say. The extensive literature on UCC has re-corded these political shifts among parties and civil society groups and so, with clear conscience, I can bypass this political landscape and focus instead on the arguments advanced.

Normative Issues for a Democratising Polity

The evolution of the normative grounds for a UCC has broadly gone through three phases. The fi rst was the aspiration, in the early decades, for “national integration” so that the emerging nation could be consolidated. After signing the standstill agreement with the Nizam of Hyderabad, Nehru wrote to the chief ministers, as early as 2 December 1947, that the “political consolidation” had “advanced considerably” and “India instead of falling apart as many people feared and some evil ones had hoped, is now a political entity and its foundations are deeper than before 15 August” (Nehru 1947). During this period of consolidation, political compromises were necessary such as postponing the enactment of the UCC to assuage the insecurity of the Muslims. National integration was the goal and if this required conceding to different minority groups their own personal laws over a uniform law then so be it. Interestingly 14 years later when Goa became part of the Indian Union, it too was allowed to retain its civil code which, in contrast to those elsewhere in the country, was a common civil code for all reli-gious communities in Goa (Noronha 2008). In the second phase, as India gained more self-confi dence, the normative goal shifted to looking at laws through an “equality” prism and hence the UCC debate had to engage with the issue of

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whether Muslim women, because of their personal laws, are at a disadvantage compared to Hindu women who have the protection of the laws enacted in the 1950s under the reforms of the Hindu Code. Equality of laws was the aspiration. We have now entered the third phase dominated by the concern with “gender justice.” The discussion has moved to exploring the legal and political strategy to be adopted in creating a package of laws, both personal and general, that would advance this goal.

There are several important normative issues for our constitu-tional polity which emerge from this extensive literature on UCC.4 The fi rst is the movement towards justifying legal pluralism as a progressive project. To insist on the uniformity of personal laws is, in fact, in the comparative international law literature, seen as a step backwards for the polity (Sousa Santos 2006; Tamonaha 2008). The recognition of a plurality of personal laws, in a society where the Constitution is the primary ethical–legal text that governs social and political life, the text of last resort, implies that this plurality of personal laws must pass the test of consistency with the fi rst principles of the Constitution. In the case of family laws, therefore, not only must they pass the test of “non-discrimination” and “equal treatment” but they must also satisfy the conditions of “gender justice.”

Conflict of Interpretation

In such a situation, a confl ict of interpretation would necessar-ily emerge. The parties to the confl ict must concede that it will be the secular judicial system under the Constitution that is the institutional site for the resolution of these differences of interpretation. Its authority must be accepted and to argue, as some have done, that the Supreme Court has exceeded its jurisdiction, or is a colonial construct, is to adopt a position that is plainly unacceptable since it steps on the slippery slope of ethical–legal relativism. Pluralism of laws is not anarchy of laws. It is a concession to the diversity of cultural life in India, a recognition that communities have worked out the rules that are to govern their daily lives and that provide meaning to their members. Interference with these rules is unnecessary unless they violate core principles of the Constitution. It is an acceptance that all aspects of social life need not be governed by a uniform set of rules. To argue for limits on the jurisdiction of the Supreme Court, especially when issues of gender justice are involved in personal law cases, is to claim a degree of autonomy which is unacceptable. There may be a plurality of personal laws but we must be clear that in a situation of a confl ict of laws, a single authority has the overriding authority of inter-pretation. There can be no fudging on this issue as is sometimes seen to be the case. It is not enough to espouse the plurality position without also taking a position on what happens when a confl ict of laws occurs. The question on who has the authority to adjudicate in such a confl ict situation, the secular authority or the religious authority, cannot be side-stepped.

This is the case in Goa. The civil code in Goa, which had its genesis in the colonial period of Portuguese rule, is a secular code that is often referred to as a model for the whole country since it is a common code for all communities and has been accepted by them, although there are some exceptions for the

Catholics. All Goans, that is, those born to Goan parents, can chose to marry under the Common Civil Code. I shall not go into its genealogy here or how it varies from the code in Portugal today (which was the basis for its original formulation but which has since undergone changes while the Goa code has not) but shall limit myself to listing some of its key features and offer an occasional comment on some of them. In the Goa civil code, all areas of civil law, such as civil capacity, citizen-ship, contracts, succession, matrimony, property, etc, are interwoven together and “inter linked by a single formula of systematisation” (Noronha 2008).

The key features are registration of marriages, communion of assets, equal treatment of sons and daughters, legitime which implies 50% of assets to children, inventory, deed of suc-cession, relinquishment of rights, registration of wills, etc. The aspects which can be regarded as an advance, over the existing laws, in terms of gender justice are in the main three: (i) The requirement of registration of marriage before the civil authori-ties which must precede a religious ceremony. This protects the women from bigamy since the state is now a witness to the marriage contract and since bigamy is unlawful, a second marriage cannot be entered into. It also places a responsibility on the state to provide the documentation of the marriage. (ii) The communion of assets gives the woman a legal and equal share into the husband’s assets and so, in a situation of a contested divorce, similar to the Shah Bano case, the woman has an equal portfolio of assets to that of the man and would not have to face destitution if the family has assets. (iii) The aspect of legitime which ensures security to the children, male and female in equal measure, since they too have rights to half the assets. In the civil code in Goa, the state undertakes the obli-gation to extend protection since the marriage is registered and all transactions such as wills, etc, also have to be registered. These aspects of the common civil law are an advance over many of the other personal laws prevalent in India, especially when seen from the viewpoint of gender justice.

While the law may be progressive, feminist activists view its operation as being hamstrung by the patriarchal character of Goan society. In practice this translates to the woman being compelled, at the time of marriage, to sign away her rights after receiving a token compensation (dowry) from her brothers the designated heirs of family property (Almeida 2013). Further, although the civil code in Goa guarantees the rights to owner-ship of property, feminists argue, because it has not been updated for the modern age, it does not give rights to the new forms of property that have emerged such as the membership of housing societies, tenanted properties, digital products, etc. It is also worth noting the conundrum of the legal system in Goa that the judiciary has the burden of interpreting a law that was designed for a civil law system while being trained only in and for a common law system.

The foregoing brief discussion of the civil code in Goa raises several issues. It illustrates the existence of plural systems of personal law in India and shows that all communities accept this common code which was imposed on them in 1910 by the colonial state. Imposition, it seems, over time as a society

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modernises, produces its own concurrence. It demonstrates not only the disjunction between the letter and the practice of the law but it also points to a social landscape that sets Goa apart from other regions in India since, even with the defi cien-cies in implementation noted by women’s groups, women in Goa today enjoy greater protections and security because of their legal right to family property. The “inventory” system of family property that has to be followed in the event of the death of a parent or relative gives all members of a family an opportu-nity to make their claim to the property. Women can be stub-born and do not have to be docile and submit to the domina-tion of the men on these issues. When they do, the law is on their side. The huge number of civil litigation cases in Goa, on property matters, is a pointer to this trend towards equalisation of claims and thereby to some semblance of gender justice as the market in land escalates (deSouza 2007; SriRanjani 2008).

Goa is in fact a good case study to examine the impact of a progressive law on a patriarchal social structure. One can trace here the resistances the law confronts as it seeks to align the society with its normative provisions. This dynamic frame throws up the interesting “inconvenient fact,” for example, that as the internal composition of the Muslim community in Goa changes, with more Muslim migrants from outside with their own orthodoxies settling in Goa, a resistance to acceptance by the community of the common code is emerging and a case is being articulated for the adoption of the Sharia instead (Desai 1996). The internal political battle is on between the old resi-dents, who are happy with the civil code because of its protec-tions, and the new residents who bring the cultural baggage of orthodoxy to their new residential location.

Conflict between Secular and Religious Law

Let me now return to the discussion of the other normative is-sues that can be culled from the UCC literature. Moving on from the tension between legal pluralism and the situation of a confl ict of laws, let me now turn to the situation of confl ict between the secular and the religious law. While the same principle of granting overriding authority to the Indian higher judiciary applies here as well, in cases where both the secular and religious laws apply, the variation comes from the procedure that must be adopted by the judiciary in such disputes. This procedure must be religion and culture sensitive.5 It must listen to the cultural meanings behind practices and fi nd a way to move these practices in a gender-just direction. The judicial system must publicly consult, as part of the legal process, with religious scholars on the range of juridical positions that are part of the religious interpretations. These must then be used to arrive at a judgment that is gender-just and consistent with the principles of the Constitution. The religious scholarship must aid the secular judgment. Even when such a sensitive procedure is followed there will be protests, since the political interests of dominant groups will be at risk, but these protests have to be met by support from within the community.

Another normative issue on which a position needs to be taken is the tension between individual rights and group rights. While the comfort zone in the argument is to say that

we must support both, since they are both valuable, the former on the grounds of individual rights enables the individual to do, be, or become whatever he or she wishes to do, be, or become, and the latter on the grounds that group rights enable community identity to be maintained which in turn results in the production of a cultural diversity from which all can benefi t, the situation on the ground highlights situations where the two sets of rights do not cohabit easily. Again, like in the two earlier mentioned instances, we have to take a position on a situation where the two sets of rights confl ict. One of the two has to be given trumping powers. This tension is most starkly brought out, in recent years, by the social response to inter-caste and inter-community marriages especially in Northern India. When young couples marry across caste and community, without the permissions of their families, the community has ostracised them and in some cases even eliminated them. The offending couple, by exercising their individual rights, is seen to have transgressed caste and community boundaries. They are “alleged” to have brought “dishonour” to the community. In several parts of North India, the institution that issues orders on such matters is the “khap” panchayat. It is a particularly vicious institution that has been in the forefront of this culture of killings to restore community “honour.” The khap is a committee of the elders of the community. In case after case, in the last decade, khaps have ordered that the members of the transgressors family themselves carry out the execution. A modernising and democratising India cannot allow such practices in the name of group rights. The decision on whom to marry is an individual’s decision. And yet the Indian state, where such killings have taken place, has been lethargic in prosecuting the members of the khaps because the political leadership realises that such action would be electorally expensive in a society dominated by such orthodoxies. Group rights have to be trumped by individual rights in such a situation of confl ict.

In all the three cases discussed, paramountcy is given to individual rights over religious rights, group rights, or pluralism of rights and the secular judiciary is given the authority to adjudicate. Two strategies are available to ensure that such situations of confl ict of rights are minimised. The fi rst is what could be referred to as the “outfl anking strategy,” that is, a strategy to outfl ank the resistances that are encoun-tered by the attempts to evolve a gender-just and minority sensitive UCC. Here as the women’s group on women’s rights have stated a package of laws would have to be enacted cover-ing both the personal law but also laws relating to violence and discrimination in the workplace and in the home, such that the responsibility of promoting gender justice, in the face of an asymmetric system of social power, is not carried by the personal law alone (EPW 1996). In addition, as Nivedita Menon has argued, a three-part strategy can be followed: (i) support attempts to bring about reform within personal laws, (ii) bring about legislation in areas not covered by either secular or per-sonal laws, such as domestic violence and right to matrimo-nial home, thus avoiding direct confrontation with communities and communal politics, and (iii) setting up a comprehensive

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gender-just framework of rights covering not just areas cov-ered by personal laws but also the “public” domain of work (creches, equal wages, maternity benefi ts, etc) (Menon 2014: 4).

The second strategy is “reform through juridifi cation.” Since it is obvious at this stage (the National Democratic Alliance government of 2014 with a Bharatiya Janata Party majority) in the politics of India that an initiative to prepare a comprehensive common code for all communities is politically unfeasible, because of the lack of trust in the intentions of the regime, gender justice is being pursued through a number of court cases across the country and as a result the judiciary is creating laws, through interpretation of MWPRDA, which the legislature did not. This process of juridifi cation can be seen in the in-creasing number of cases in states such as Kerala where courts have given compensation and maintenance decisions favoura-ble to the divorced women. Paradoxically the law that was considered a compromise with the Muslim orthodoxy, the MWPRDA 1986, is being used by litigants and the courts to advance the cause. Clause 3(1)(a), especially the words “reasonable and fair maintenance,” is being interpreted by courts in different parts of India to give women awards that are considerably

higher than what they would have got under Section 125. Flavia Agnes has provided a list of cases from Gujarat, Kerala, Madras (Chennai) and Bombay (Mumbai) where this provision has been interpreted to benefi t women.

In 2000 a Full Bench of the Bombay High Court further explained that the words ‘maintenance’ and ‘reasonable and fair provision’ carry distinct meaning. The word “provision” has a future content. It is an amount kept aside to meet future liability. The husband must make a reasonable and fair provision for her, which should take care of her future needs. It cannot be substituted by the word ‘for’. The amount of ‘maintenance’ and ‘reasonable and fair provision’ cannot be confused with mehr. Mehr is a liability which does not get absolved by any other payment or consequences (Agnes 2006: 5).

Both strategies of “outfl anking the resistance” and of “juridifi cation” have advanced the cause of gender justice in In-dia. There is still a long way to go since advances in the law have to be met with advances in social practice and community be-haviour. As education and communication technologies spread to even remote villages, stories of resistances to structures of gender injustice become known. Kerala is seeing many cases of divorced women seeking relief in the courts under MWPRDA 1986. Perhaps this movement will grow.

Notes

1 It is interesting to note here that both Pakistan and Bangladesh have modifi ed the Shariat as per the needs of modern Pakistan and Bangladesh.

2 One of the most prominent proponents of the opposing view to that of the AIMPLB was Arif Mohammed Khan, a prominent Muslim MP who resigned from the party because of what he con-sidered as the capitulation by the Congress leadership to the orthodox sections of the Mus-lim community.

3 Pratiba Jain, Siobhan Mulallay, Anika Rahman, Martha Nussbaum, Werner Minski and Rajeshwari Sunder Rajan, among others, have published on the issue of UCC in India in the Columbia Journal of Translational Law, Berkeley Journal of Inter-national Law, Oxford Journal of Legal Studies, German Law Journal and Chicago Journal of International Law.

4 Some of the participants to this debate are Archana Parashar, Albertina Almeida, Asghar Ali Engineer, Anika Rahman, Amrita Chhachhi, Farida Khan, Flavia Agnes, F E Noronha, Gautam Navlakha, Kumkum Sangari, Nalini Rajan, Neeraj Malik, Nishtha Desai, Nivedita Menon, Madhu Kishwar, Martha Nussbaum, Pratibha Jain, Rajeshwari Sunder Rajan, Rohit De, Ritu Menon, Siobhan Mullally, Tanika Sarkar, Uma Chakravarti, Urvashi Butalia, V Sriranjani, Werner Menski, and Zoya Hasan. Their works have been refer-enced earlier and later in this article.

5 A good illustration of how in the case of a reli-gious dispute within a community the secular courts are relied upon to adjudicate on the dis-pute: The succession of the 53rd Syedna, the head of the Dawoodi Bohra community, has been disputed by an infl uential faction. The two claimants are arguing their case using sen-ior advocates before a Bench of the Mumbai High Court (http://www.hindustantimes.com/india-news/da woodi-bohra-succession-issue-former-chief-justice-pledges-allegiance-to-syed-na-s-uncle/article1-1178939.aspx; http://www.dnaindia.co m / mumbai/report-social-boycott-of-kh uzaima-qut buddin-oppressive-say-progr essi-ve-bohras-seeking-its-complete-ban-1955460).

References

Agnes, Flavia (1999): Law and Gender Inequality: The Politics of Women’s Rights in India, New Delhi: Oxford.

— (2006): “From Shahbano to Kausarbano–Contex-tualizing the ‘Muslim Woman’ within a com-munalized Polity,” paper presented at Subaltern Citizens and their Histories, Emory University, 13–14 October.

Almeida, Albertina (2013): “Vistas on the Road from Portuguese Civil Code to Family Laws in Goa,” paper presented at the conference “Goa: 1961 and Beyond,” 18–20 December.

Ambedkar, Bhimrao Ramji (1949): Constituent Assembly Debates, Vol II, 4 November 1948–January 1949, pp 779–80.

— (1951): “Resignation Speech,” 10 October, https://ambedkarism.wordpress.com/2011/03/10/dr-am bedkar%E2%80%99s-resignation-speech/.

Chandra, Sudhir (2008): Enslaved Daughters: Colo-nialism, Law and Women’s Rights, New Delhi: Oxford.

De, Rohit (2013): “Personal Laws: A Reality Check,” Frontline, 6 September.

Desai, Nistha (1996): “Goa Code Has Meshed Well with Muslim Culture,” Times of India, 1 July.

deSouza, Shaila (2007): “‘Just’ Laws Are Not Enough: A Note on the Common Civil Code, Marriage and Inheritance in Goa,” Women’s Livelihood Rights: Recasting Citizenship for Development, (ed) NBew Delhi: Sage.

Engineer, Ali Asghar (1999): “Muslim Women and Maintenance,” Economic & Political Weekly, 12 June, p 1488.

— (2005): “Model Nikhahanma—A Hope or a Dis-appointment?” University Today, 1 June.

EPW (1996): “Reversing the Option: Civil Codes and Personal Laws,” 18 May, pp 1180–83.

Gandhi, Nandita et al (1996): “Drafting Gender Just Laws,” Economic & Political Weekly, 26 October, pp 2858–60.

Ghosh, Partha (2007): The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code, New Delhi: Routledge.

Hasan, Zoya (2014): “Minority Identity, Muslim Women Bill Campaign and the Political Process,” ch 17, Democracy and the Crises of Inequality, New Delhi: Primus.

Jain, Pratiba (2005): “Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on Women’s Rights in India,” 23 Berkeley J Int’l 201.

Kishwar, Madhu (1994): “Codifi ed Hindu Law: Myth and Reality,” Economic & Political Weekly, 13 August, p 2147.

Menon, Nivedita (2014): “Uniform Civil Code—The State of the Debate in 2014,” draft essay shared with the author, p 4.

Menski, Werner (2008): “The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda,” 9 German L J 211.

Mullaly, Siobhan (2004): “Feminism and Multicultural Dilemmas in India,” Oxford Jorunal of Legal Studies, Vol 24, No 4.

Nehru, Jawaharlal (1947): Letters to Chief Ministers, New Delhi.

Noronha, F Elgar (2008): Understanding the Common Civil Code, Nagpur: AIR Publications.

Nussbaum, Martha (2001): “India: Implementing Sex Equality through Law,” 2 Chi J Int’l 35.

Parashar, Archana (2000): “Do Changing Concep-tions of Gender Justice Have a Place in Indian Women’s Lives? A Study of Some Aspects of Christian Personal Laws,” Changing Concepts of Rights and Justice in South Asia, Michael R An-derson and Sumit Guha (eds), New Delhi: Oxford.

Rahman, Anika (1990): “Religious Rights versus Wom-en’s Rights in India: A Test Case for International Human Rights Law,” 28 Colum J Transnat’l L 473.

Rajan, Nalini (2005): “Personal Laws and Public Memory,” Economic & Political Weekly, 25 June.

Sousa Santos, Boaventura (2006): “The Heterogene-ous State and Legal Pluralism: Past to Present, Local to Global,” Law and Society, Vol 40, No 1, pp 39–75.

SriRanjani, V (2008): “Are Women Better Off under the Uniform Civil Code?,” Women’s Link, Vol 14, No 1, pp 2–12.

Sunder Rajan, Rajeshwari (2000): “Women between Community and State: Some Implications of the Uniform Civil Code Debates in India,” Social Text 18.4, pp 55–82.

Tamonaha, Brian (2008): “Understanding Legal Pluralism: Past to Present, Local to Global,” Sydney Law Review, Vol 30, pp 375–411.

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IThe Preamble and

Conceptions of Secularism

When the preamble to the Consti-tution was discussed in theConstituent Assembly on Octo-

ber 17, 1949, disagreement and acrimoni-ous debate over the incorporation of theprinciple of secularism took up most ofthe Assembly’s time. The positions spelt outon secularism on that day show up clearlythe lines of difference that had beendeveloping on this issue during the threeyears of the Constituent Assembly debates.

On that day H V Kamath began thediscussions by moving an amendment tobegin the preamble by the phrase, ‘In thename of god’.1 Shibban Lal Saksena andPandit Govind Malaviya also moved simi-lar amendments later in the day. Respond-ing to Pandit Kunzru’s objection that ininvoking “the name of god, we are show-ing a narrow, sectarian spirit”,2 PanditMalaviya argued that it was not anti-secular for the preamble to begin with ex-pressions such as “By the grace of theSupreme Being, lord of the universe, calledby different names by different peoples ofthe world”,3 since it was clear that not anyparticular religion’s god was being sanc-tified. Saksena pointed out that even theIrish constitution took god’s name at thebeginning of its preamble.4

Whereas the other two withdrew theirproposals, Kamath stuck to his guns.

Rajendra Prasad tried persuading him thathis amendment was against the spirit ofreligious freedom of the Constitution thatwas exemplified, for instance, in the choicein the form of the oath – to ‘swear in thename of god’, or to ‘solemnly affirm’ –that the Constitution gave to ministerstaking office. Kamath responded: “Herewe are not individuals. Here we are all thepeople of India. There is much differencebetween the two.”5 Religion was ‘the voiceof our ancient civilisation’ and the pre-amble, a document of the people of India,by taking god’s name only reflected thespirit and will of the Indian people.

Opponents to Kamath’s amendmentcontinued to insist that religion was a matterof individual choice and in this matter thecollective will should not be imposed.Another interesting objection was raisedby Purnima Banerji who said that refer-ences to god should not be put into theconstitution since that would make thesacred depend on the vagaries of demo-cratic voting. She requested Kamath “notto put us to the embarrassment of havingto vote upon god”.6

Kamath’s amendment was defeated by68 to 41, but neither did the Assemblyaccept a suggestion from the other side toinclude the word ‘secular’ in the preamble.Brajeshwar Prasad from Bihar moved thatthe first sentence of the preamble beginsas follows: “We the people of India, havingresolved to constitute India into a secularcooperative commonwealth to establish

socialist order and to secure to all itscitizens…”7 because he said that this word,‘secular’ was dear to India’s nationalleaders and its inclusion in the preamblewould tone up the morale of minorities aswell as prevent disorderly activity. Unfor-tunately there was no discussion on theinclusion of the term ‘secular’; mostmembers ridiculed Brajeshwar Prasad’sattempt at making the Constitution asocialist instead of a liberal democraticdocument and his amendment wasnegatived for that reason.

The preamble was discussed in one ofthe last sessions of the Constituent Assem-bly which is why the theoretical positionson secularism that we try to extrapolatefrom the October 17 debate reflect thestands taken during the preceding threeyears. All the members agreed, of course,on the necessity of establishing a secularstate. Most shared an understanding ofhistory in which the “movement for theseparation of religion and state was ir-revocably a part of the project for thedemocratisation of the latter”.8 How coulda democratic state represent a religiousmajority at the expense of the rights andliberties of a minority? In Europe, “theidea of democratic dissent was posedinitially as the idea of religious difference.It gradually became the premise for theliberties of the individual in general, and,in raising the question of equality andequal rights for all, the idea of secularismbecame the chief motor behind the

Secularism in the Constituent AssemblyDebates, 1946-1950

Secularism, it has been argued, failed to stem the spread of communalism in India, because itsmarginalising and contempt of religion bred a backlash on which communalism thrived. This

article contends that this ‘contempt for religion’ was marginalised in the course of thesecularism debates in the Constituent Assembly. The dominant position on secularism that

a ‘democratic’ Constitution find place for religion as a way of life for most Indianstriumphed over those who wished for the Assembly to grant only a narrow right to

religious freedom, or to make the uniform civil code a fundamental right. These earlydiscussions on religious freedom also highlight a paradox – it is precisely some of

the advocates of a broad right to religious freedom who were also the mostvociferous opponents of any political rights for religious minorities.

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subsequent idea of political democracy”.9

Since independent India was to be a de-mocracy, secularism was a fait accompli:“it is essential for the proper functioningof democracy that communalism shouldbe eliminated from Indian life”.10 But thequestion remained as to the kind of secu-larism to be established by Indians facedwith the problem of “creating a secularstate in a religious society”.11 Was a statesecular only when it stayed strictly awayfrom religion, and could such a secularstate survive only if society was slowlysecularised as well? Or did a state thatequally respected all religions best capturethe meaning of secularism in the Indiancontext?

On this issue we can see three alternativepositions in the controversy around thepreamble. The first – which we call the no-concern theory of secularism – saw adefinite line of separation between reli-gion and the state. Given the principles offreedom of expression and religious lib-erty, it was upto the individual to decidewhether to be a believer or not, or to adhereto this religion or that. Therefore thepreamble could not contain any referencesto god, and neither should the constitutionestablish links between the state and anyreligion. This argument of religion beingan individual’s private affair, was extendedduring the main sessions of the Constitu-ent Assembly to include the more radicalclaim that religion must be relegated to theprivate sphere. Many members declaredthat the need of the hour was to strengthenthe identity of Indians as citizens of theIndian state, as opposed to being membersof some community or religious group.Radhakrishnan’s speech on the ObjectivesResolution on December 13, 1946 assertedthat “nationalism, not religion, is the basisof modern life…the days of religious statesare over. These are the days of national-ism”.12 A month later, G B Pant, speakingto the Advisory Committee of the Con-stituent Assembly proclaimed that the“individual citizen who is really the back-bone of the state,…has been lost here inthat indiscriminate body known as thecommunity. We have even forgotten thatthe citizen exists as such. There is theunwholesome, and to some extent, degrad-ing habit of thinking always in terms ofcommunities and never in terms of citi-zens”.13 Similar thoughts were expressedlater in an exaggerated fashion byGuptanath Singh: “The state is above allgods. It is the god of gods. I would saythat a state being the representative of thepeople, is god himself”.14

These positions logically led to a con-ception of a secular state as one that staysaway from religion per se. It distances

itself from all religions and in this mannerencourages their limitation to a privatesphere; it presses for the narrowing ofreligion to the activity of religious worshipand it assiduously replaces respect forreligion with building nationalist citizens.India was engaged in creating a modernnation state and in this enterprise, religion,an obscurantist and divisive force, hadno place.

Members advocating this kind of secu-larism included K T Shah, who as late asDecember 1948, demanded the insertionof an article separating the state from anyreligious activities. Tajamul Husain notonly wanted to define the right to religionas a right to ‘practise religion privately’,but also insisted that religious instructionwas to be given only at home by one’sparents and not in any educational insti-tutions. He also wanted to include thefollowing clause in the constitution: “Noperson shall have any visible sign, markor name, and no person shall wear anydress whereby his religion may berecognised”.15 This implied an understand-ing of secularism in which “religion is aprivate affair between man and his god.It has no concern with anyone else in theworld”.16 It is this conception of secular-ism which led M Masani and K T Shahto state earlier that while they supportedan individual’s right to religious freedom,they “dissented from the inclusion amongfundamental rights of any provisionguaranteeing institutions belonging toany religious community”.17

Many of these proponents of no-concernsecularism were making the argumentfamiliar to all students of early modernpolitical theory. A state wanting tostrengthen itself must encourage the philo-sophy of abstract individualism so as toweaken all associations in society otherthan itself. It can then replace these asso-ciations by itself as the locus of the indi-vidual citizen’s identity. Secularism onthis view meant the gradual weakening ofthe bonds of religion and their replacementwith nationalism. It meant that the statemust not recognise religion as a publicinstitution. It was not just a question ofreligious liberty but of the establishmentof the paramountcy of the state. Religionwas to be relegated to as narrow a sphereas possible so that the state could emergeas a modern Leviathan.

The second position on secularism,exactly opposite to the first, was that nolinks between the state and religion shouldbe permitted, not because this wouldweaken the state, but because it woulddemean religion. Religion, a system ofabsolute truth, could not be made subjectto the whims of changing majorities by

allowing the democratic state to have a sayin religious affairs.

Like the first, the third position – whichwe call the equal- respect theory of secu-larism – also began with the principle ofreligious liberty, but held that in a societylike India where religion was such animportant part of most people’s lives, thisprinciple entailed not that the state stayaway from all religions equally, but thatit respect all religions alike. In this view,instead of distancing itself from all reli-gions or tolerating them equivalently assets of superstitions which could be in-dulged in as long as they remained a privateaffair, a secular state based its dealingswith religion on an equal respect to allreligions. One of the main proponents ofthis view, K M Munshi, proclaimed thatthe “non-establishment clause (of the USConstitution) was inappropriate to Indianconditions and we had to evolve a char-acteristically Indian secularism”.18 Munshisaid: “We are a people with deeply reli-gious moorings. At the same time, we havea living tradition of religious tolerance –the result of the broad outlook of Hinduismthat all religions lead to the same god…Inview of this situation, our state could notpossibly have a state religion, nor coulda rigid line be drawn between the state andthe church as in the US”.19

Lakshmi Kant Maitra and H V Kamathclaimed that the Indian state should notdisavow India’s “lofty religions andspiritual concepts and ideals”.20 Thewest was in crisis because of the domi-nance of materialism, and it was lookingtowards India for a regeneration of spiri-tual values. The Indian state should notencourage sectarianism, but at the sametime it should actively “impart spiritualtraining or instruction to its citizens”21

by giving some kind of spiritual educationto them.

It is this conception of secularism whichled certain members to define the right toreligion as a right to the practise of religionas opposed to the more narrow right toreligious worship. These members acceptedthat certain limitations must be placed onthis right. However, it was all right to havethese limitations once the right had beenframed properly to capture the significanceof religion, instead of being framed in amanner which revealed a disregard forreligion.

Since religion was, for most Indians, away of life and therefore essential to theiridentity, how could a people’s state befounded on a kind of secularism contemp-tuous of religion. One’s identity was notsomething which was easily changeable,and for these members, to forcibly replacereligion as the basis of one’s identity with

Economic and Political Weekly July 27, 2002 3177

the state was an attack on the autonomyof individuals.

In addition, most important religionscontained principles of toleration withinthemselves since by definition, religiousbelief had to be voluntary. If the stateallowed a public sphere to religion thiswould not automatically lead to inter-sectarian strife, as all great religions of theworld preached forbearance of other faiths.J B Kripalani defined toleration as theacceptance, to some extent, of someone’sbeliefs as good for him, and argued thatit was because the no-concern theory wasbased on a doctrine of intolerance that itconfined religion to the private realm. Onthe other hand a state which respected allreligions was educating its citizens inprinciples of toleration: “We have to re-spect each other’s faith. We have to respectit as having an element of truth”.22

Jaya Prakash Narayan added that it wasonly when religion was used to serve socio-economic and political interests, that therewas communal violence. What needed tobe done in the interests of secularism wasto incorporate an article in the Constitutionprohibiting the use of religious institutionsfor political purposes or the setting upof political organisations on a religiousbasis.23 It was not religion per se but itspoliticisation which engendered violencein the modern state.

The no-concern and equal-respectpositions on secularism clashed constantlyduring the debates in the ConstituentAssembly as the question of secularismcropped up in discussions around innu-merable articles. The issue of secularismwas ubiquitous – it came up even whenparliamentary procedure and the linguisticreorganisation of states were being dis-cussed. Instead of detailing the argumentson secularism around some randomlypicked articles, we have, following Smith’smodel that a secular Constitution musthave provisions dealing with three specificsubjects – religious liberty, citizenship andstate neutrality24 – picked up the debateon some articles from each area to showthe lines of disagreement amongst Con-stituent Assembly members. Under reli-gious liberty, we look at the controversyover whether the right to religious freedomshould be the right to religious worship orto religious practice, and over whether thestate should recognise only linguisticminorities or religious minorities as well.Under citizenship, we review the disputeover the uniform civil code and overpolitical reservation for religious minori-ties; and finally for state neutrality weconsider the debate over whether thereshould be religious instruction in stateaided schools. Looking at the discussions

in more detail, we find that it is theambivalences within the no-concern andequal-respect camps that are more inter-esting than the stark contrast between thetwo positions.

IIReligious Practice or

Religious WorshipOn April 16, 1947, the Sub-Committee

on Fundamental Rights of the ConstituentAssembly determined the right to the free-dom of religion to be a right “to freedomof conscience, to freedom of religiousworship and to freedom to profess reli-gion”.25 Two days later, the ConstituentAssembly’s Minorities Sub-Committeedecided by a majority of 10 to five thatthe freedom to religion should be rephrasedas the “freedom of conscience and the rightfreely to profess, practice and propagatereligion”.26 This change in terminologywas formally dissented to by Amrit Kaur,Jagjivan Ram, G B Pant, P K Salve andB R Ambedkar.

Sharp disagreement on whether to callthe right to religion a right to religiouspractice or a right to religious worship hadalready become manifest in the proceed-ings of the Fundamental Rights Sub-Committee. This Committee’s draft reportof April 3, reflecting the discussion onK M Munshi’s and Ambedkar’s proposedarticles on fundamental rights, set out eightarticles defining the right to religion. Article16 followed Munshi’s proposal, instead ofAmbedkar’s, in giving the right “freely toprofess and practice” religion, and in addingthe explanation that the right “to professand practice religion shall not include anyeconomic, financial, political or othersecular activities that may be associatedwith religious worship.”27 Ambedkar’ssuggestions were incorporated in anotherexplanation to Article 16 that “No personshall refuse the performance of civil ob-ligation or duties on the ground that hisreligion so requires,” and in Article 19 that“The state shall not recognise any religionas the state religion”.

That there were irreconciliable differ-ences in the Constituent Assembly onreligious freedom, and that the disputeover religious practice or religious wor-ship was not a trifling disagreement overwords was apparent in the inconsistencywithin Article 16 itself. Members support-ing the use of the terms ‘the practice ofreligion’ said that to understand religionnarrowly as a set of performative ritualsin a public but circumscribed place ofworship like a church was to misunder-stand the significance of religion for abeliever. If religion was rightly understood

as a way of life then Article 16 could notinclude the proviso that one’s civil obli-gations overrode one’s religious duties.K M Panikkar used the example of‘Sanyasa’, a fundamental element of re-ligion in many sects, which rules that one’slife must be lived in a certain way: “Wherereligion provides that a Sanyasi shall haveno attachments to the world, to ask thathe shall perform civil duties is in fact toask him to give up his religion.”28 Manythings were part of religion, the least ofthem being the wearing of kirpans by Sikhs.Since the Constitution could not specifyall the essential elements of the differentIndian religions, at least it could phrase theright to religion broadly as the right to thepractice29 of religion and not narrowly asthe the right to religious worship. If theConstituent Assembly was serious aboutreligious freedom then there was no pointin granting a freedom to a religion denudedof all content.

Those on the other side of the dividepointed to the dangers of interpretingreligion widely. Any such broad readingof religion would include within it the anti-social customs of “pardah, child marriage,polygamy, unequal laws of inheritance,prevention of intercaste marriage,(and)dedication of girls to temples,”30 practisedin the name of religion. Rajkumari AmritKaur further pointed out that if the rightto religion was stated in terms of the rightto the practice of religion, it “may evencontradict or conflict with the provisionabolishing the practice of untouchabil-ity”.31 Alternatively, if the right given werethe right to religious worship, the statecould better protect all the rights of indi-viduals by preventing through social leg-islation the exploitation of a lower casteman by an upper caste individual, or ofa woman by a man.

This dispute over the terminology of theright to religion led to much flip-floppingin the various reports of the FundamentalRights Sub-Committee. The April 3 draftused the terms ‘practice religion’; butbecause of reservations expressed by somemembers, the April 16 report of the Sub-Committee changed the terminology to‘freedom of religious worship’. Howeveron April 18, the Minorities Sub-Commit-tee suggested that the original phraseologyof the April 3 draft be used. After that theAdvisory Committee of the ConstituentAssembly, which included both the Sub-Committees on Fundamental Rights andMinorities as well as three others, met andsubmitted an Interim Report on April 23in which the right to religion was a rightto “practice religion” and the provisobarring individuals from using religiousreasons to exempt themselves from civic

Economic and Political Weekly July 27, 20023178

duties, as well as the article banning a statereligion, were dropped. It seemed as if oneside had won an overwhelming victory,even though the right to the practice ofreligion remained limited by public order,morality, health and the other provisionsof the chapter on fundamental rights, aswell as by two provisos that the right toreligion shall not include any economic,financial, political or other secular activi-ties that may be associated with religiouspractice, and that it shall not debar the statefrom enacting laws for the purpose ofsocial welfare and reform.

The battle was joined once again whenthe Interim Report of the Advisory Com-mittee was presented to the ConstituentAssembly on May 1, 1947. This timedoubts were raised about including theright to propagate in religious freedom;some members wanted it clarified that theconversion of minors would not be al-lowed. Those who protested that thiswould mean that parents who had con-verted had no right to determine the re-ligious upbringing of their children, hadtheir way, and in the draft Constitution ofFebruary 1948, the article postulatingrestrictions on the act of religious conver-sion was dropped.

When the draft Constitution’s articles onreligion were discussed in the ConstituentAssembly in December 1948, K T Shahraised the demand again that an article beincluded expressly forbidding any linkbetween the state and religion. Such anarticle would begin as: “The state in Indiabeing secular shall have no concern withany religion, creed or profession of faith”.32

Tajamul Hussain wanted to replace theterms ‘practice and propagate religion’with ‘practice religion privately’. We seethen that the exact phrasing of the mainarticle on religious freedom remainedcontentious till the very last.

IIILinguistic or Religious

Minorities

The differences over secularism werealso clearly apparent in the controversyover whether a secular state permits therecognition of religious minorities alongwith linguistic minorities. On the one hand,Jaya Prakash Narayan held that the“secularisation of general education...necessary for the growth of a nationaloutlook and unity”33 required that thecultural and educational rights guaranteedin the Constitution should be confinedonly to linguistic minorities. On the samelines, Damodar Swarup Seth suggestedthat “the only minorities to be recognisedshould be those based on language: rec-

ognition of minorities based on religion orcommunity was not in keeping with thesecular character of the state. If suchminorities were granted the right to estab-lish and administer educational institu-tions of their own, it would not only blockthe way to national unity but would alsopromote communalism and an anti-nationaloutlook.” 34 It was with similar reserva-tions in mind that G B Pant had earlier,in an April 1947 meeting of the MinoritiesSub-Committee, suggested that the cul-tural and educational rights of minoritiesbe included among the non-justiciabledirective principles. Rajkumari Amrit Kaurhad similarly proposed that religiousminorities not be allowed to set up separateeducational institutions, nor state aid beprovided to these institutions.

As these articles were framed in theMinorities Sub-Committee, however, theyreflected the point of view of the otherside. The draft rights defined minorities interms of religion and language and gavethem the right to establish and administereducational institutions. The ConstituentAssembly also passed these articles in thesame form: “all minorities, whether basedon religion or language had the right toestablish and administer educational insti-tutions” (Article 30, Constitution of India)which were entitled to state aid just as anyother educational bodies.

IVUniform Civil Code

The first article that we take up withreference to citizenship in a secular stateis that on the uniform civil code. BothMunshi’s and Ambedkar’s draft articles ofMarch 1947 on justiciable rights containedclauses referring indirectly to a uniformcivil code. Munshi’s proposal stated that:“No civil or criminal court shall, in adju-dicating any matter or executing any orderrecognise any custom or usage imposingany civil disability on any person on theground of his caste, status, religion, raceor language”.35 Ambedkar wrote that thesubjects of the Indian state shall have theright “to claim full and equal benefit ofall laws and proceedings for the securityof persons and property as is enjoyed byother subjects regardless of any usage orcustom based on religion and be subjectto like punishment, pains and penalties andto none other”.36

By March 30, however, the Fundamen-tal Rights Sub-Committee had decided tomake the uniform civil code a directiveprinciple of state policy. In her letter ofMarch 31, Rajkumari Amrit Kauremphasised the importance of the uniformcivil code and called it “very vital to social

progress”.37 In a much more stronglyworded note of April 14, Amrit Kaur,along with Hansa Mehta and M R Masani,wrote that “(o)ne of the factors that haskept India back from advancing to nation-hood has been the existence of personallaws based on religion which keep thenation divided into watertight compart-ments in many aspects of life”,38 anddemanded that the provision regarding theuniform civil code be transferred from thechapter on directive principles to that onfundamental rights.

This position was opposed by othermembers of the Constituent Assembly,such as Mohamed Ismail Saheb, supportedby B Pocker Sahib, who wanted to includea right to one’s personal law in the fun-damental right to religion. Failing that,they insisted that at least the directiveprinciple enjoining the state to provide auniform civil code, should contain thefollowing proviso: “Provided any group,section or community of people shall notbe obliged to give up its own personal lawin case it has such a law”.39 This must bedone if the right to religious practice wasto have any reality because the “right tofollow personal law is part of the way oflife of those people who are followingsuch laws; it is part of their religion andpart of their culture”.40 Mahboob Ali BaigBahadur said, “People seem to think thatunder a secular state, there must be acommon law observed by its citizens inall matters including matters of their dailylife, their language, their culture, theirpersonal laws. This is not the correct wayto look at the secular state. In a secularstate, citizens belonging to differentcommunities must have the freedom topractise their own religion, observe theirown life and their personal laws shouldbe applied to them”.41 These memberswere opposed to the setting up of a uniformcivil code.

An intermediate postion was that theestablishment of the uniform civil codemust be done slowly, with the consent ofall communities. Similar to this positionwas that of K M Munshi’s – who now,surprisingly, wanted to narrow the defini-tion of religious practice. He pointed outthat the personal law of Hindus was dis-criminatory against women and contra-vened an Indian citizen’s right to equality.Therefore, “religion must be restricted tospheres which legitimately appertain toreligion, and the rest of life must be regu-lated, unified and modified in such a mannerthat we may evolve, as early as possible, astrong and consolidated nation.”42 Ambedkarcan also be put in this group since hesupported the inclusion of the uniformcivil code in the directive principles but

Economic and Political Weekly July 27, 2002 3179

said that the code would only apply tothose who wanted it to apply to them.

VPolitical Safeguards

for MinoritiesSimultaneously with discussing the kind

of religious rights permitted by secular-ism, the Constituent Assembly’s membersalso debated the political rights of minori-ties in a secular state. The Minorities Sub-Committee based itself on its members’responses to a short questionnaire onsafeguards for minorities prepared byK M Munshi, and on Ambedkar’s sug-gested safeguards for the scheduled castes.Munshi’s questionnaire consisted of sixqueries on the nature and scope of politi-cal, economic, religious, educational andcultural safeguards for a minority at thecentre and the provinces in the new con-stitution, on the machinery to ensure thesesafeguards, and on whether these safe-guards would be temporary or permanent.43

Ambedkar’s draft contained a section on‘provisions for the protection of minori-ties’ demanding that the representatives ofthe different minorities in the cabinet beelected by members of each minoritycommunity in the legislature, as well asthe establishment of a superintendent ofminority affairs. Although only the sched-uled castes were specifically named as aminority by Ambedkar, he did assume theinclusion of other minorities when he wrotethat the share of the scheduled castes inthe reserved seats in the legislatures or theservices would not be at the cost of theshare of the other minorities. In his draftprovisions, Ambedkar stated that socialdiscrimination constituted the real test fordetermining whether a social group is oris not a minority.44 Thus both the sched-uled castes and certain religious groupswere minorities in India, “since the admini-stration in India is completely in the handsof the Hindus, and under Swaraj the legi-slature and executive will also be in thehands of the Hindus”.45 According toAmbedkar, Indian nationalism had devel-oped a doctrine called “the divine right ofthe majority to rule the minorities accord-ing to the wishes of the majority. Anyclaim for the sharing of power by theminority is called communalism while themonopolising of the whole power by themajority is called nationalism”.46 In thiscontext it was essential for equal citizen-ship that political safeguards for minori-ties be enshrined in the Constitution.

The Minorities Sub-Committee follow-ing Ambedkar’s draft articles began withproposals to establish, for religiousminorities and for scheduled castes and

tribes, separate electorates, and reserva-tion in legislative bodies, ministries, andthe civil, military and judicial services ofthe government as well as a MinoritiesCommission. When discussions took placein the Sub-Committee in July 1947, bywhich time the question of partition hadbeen decided, and the Muslim Leaguemembers had also joined the ConstituentAssembly, the demand for separate elec-torates and for reservation in the ministriesand the government services was given up.On August 8, the Advisory Committee sub-mitted its report on minorities stating thatseparate electorates were to be abolishedbecause they “sharpened communal dif-ferences to a dangerous extent and haveproved one of the main stumbling blocksto the development of a healthy nationallife”.47 So that the minorities did not feelthreatened, the Muslims and scheduledcastes were granted reservation in thelegislatures, in proportion to their popula-tion, for 10 years. There was also somekind of reservation for Anglo-Indians, andthe question was left open for Parsees,Sikhs and tribals. There was also to be aspecial minority officer at the centre andeach of the provinces.

When this report was considered in theConstituent Assembly on August 27, 1947,many of the members against separateelectorates blamed British institutionalarrangements for the communal discord inIndia: for instance, P S Deshmukh said that“the demon of the interests of minoritiesand their protection was a creation of Britishpolicy”.48 Members still supporting theprovision of separate electorates arguedthat without them, the best representative ofa minority community would not be elected.However, separate electorates were notreinserted into the Constitution. Nor was anamendment moved by S Nagappa, and sup-ported by Ambedkar, that a scheduled castecandidate could only be declared electedto a scheduled caste reserved seat onsecuring at least 35 per cent of votes polledby scheduled castes to that seat, passed.49

In the February 1948 Draft Constitution,Articles 292 and 294 reserved seats inparliament and state legislatures for Mus-lims, scheduled castes, Scheduled Tribesand Indian Christians for 10 years. InFebruary 1948, a special subcommittee ofPatel, Nehru, Prasad, Munshi andAmbedkar was formed on minority prob-lems affecting East Punjab and WestBengal. This Committee rejected the de-mand of the Shiromani Akali Dal for aseparate electorate on the grounds thatalthough “it is not always easy to definecommunalism, there could be little doubtthat separate electorates are both a causeand an aggravated manifestation of this

spirit”.50 The committee’s report was quitecritical of the demands of the Akali Daland rejected every one of them since they“disrupted the whole conception of thesecular state which is to be the basis ofour new Constitution”.51

When this report was considered in theAdvisory Committee in December 1948,a suggestion was made that reservationsin legislative bodies should also be givenup. By May 11, 1949, Muslims and IndianChristians lost their reserved seats. Theunderstanding was that the non-MuslimLeague Muslims were under instructionsof Maulana Azad not to press for reser-vation. Nehru responded to a speech byBegum Rasul against reservation by say-ing, “I think that doing away with thisreservation business is not only a goodthing in itself, good for all concerned,more especially for the minorities, butpsychologically too it is a very good movefor the nation and the world. It shows thatwe are really sincere about this businessof having a secular democracy”.52

In his report on this May 11 meeting, Patelwrote: “Although the abolition of separateelectorates had removed much of the poisonfrom the body politic, the reservation ofseats for religious communities, it was felt,did lead to a certain degree of separatismand was to that extent contrary to the con-ception of a secular democratic state”.53

In moving this report in the ConstituentAssembly on May 25, 1949, he exhortedeveryone “to forget that there is anythinglike majority or minority in this country andthat in India there is only one community”.54

VIReligious Instruction inEducational Institutions

For our next subject of state neutrality,we go back to the right to religion, andexamine what happened to the issue ofreligious instruction. The Advisory Com-mittee in its interim report of April 23,1947 had stated that religious instructionmust be voluntarily received in schoolsmaintained or getting aid out of publicfunds. When this clause was discussed inthe Constituent Assembly on August 30,1947, it was sought to be amended byRenuka Ray to read as follows: “No de-nominational religious instruction shall beprovided in schools maintained by thestate”.55 Radhakrishnan explained thereasoning behind such an amendment: “Weare a multi-religious state and therefore wehave to be impartial and give uniformtreatment to the different religions; but ifinstitutions maintained by the state, thatis, administered, controlled and financedby the state are permitted to impart religious

Economic and Political Weekly July 27, 20023180

instruction of a denominational kind, weare violating the first principle of our Con-stitution.”56 Here we see at its clearest, oneunderstanding of secularism: impartialityto all religions means that the state muststay away from all religions. When thisarticle was discussed again in the Constitu-ent Assembly in December 1948, K T Shahwent further and demanded that religiousinstruction should be banned not only ineducational institutions wholly maintainedout of state funds, but also in those whichwere aided or partly maintained by the state.He said that he did not want education tobecome a menagerie of faiths.57 TajamulHusain said the religious instruction shouldonly be given at home by one’s parents.

Diametrically opposite was the argu-ment of Mohamed Ismail who believedthat “the stability of society as well as ofthe state could be secured through a moralbackground which religion alone couldprovide, and it was in the interest of thestate itself to give children a grounding inreligion”.58 Thus there ought to be no baron religious instruction in educationalinstitutions, not even in those run exclu-sively by the state, as long as no one wascompelled to accept such instruction. Ifreligious instruction was imparted in thismanner by the state, it would in no waycontravene the neutrality or the secularnature of the state.

H V Kamath also supported the impart-ing of spiritual instruction to the citizensby the state. The “deeper import of religion– the eternal values of the spirit...could beimparted by the state without violating theprinciple of secularism”.59 Further hepointed to the contradiction between thisarticle on religious instruction and thesubsequent one on the cultural and edu-cational rights of minorities. If on the onehand, the Constitution stated that minori-ties were entitled to state aid and recog-nition to their freely run educational in-stitutions, then how could it also banreligious instruction in state aided institu-tions. The only solution was to say that nopupil could be forced to attend religiousinstruction in state aided schools.

Conclusion

Ever since the Romantics, we have learntthat contradictions are not a problem; theycapture better the complexity of any thing.But surely a Constitution – a legal docu-ment – has to obey canons of consistency?Both the no-concern and equal-respectpositions on secularism, when constructedstrictly logically by Rajkumari Amrit Kaurand B Pocker Sahib, had few takers in theConstituent Assembly. Most members feltthat – neither a position demanding a right

only to religious worship, the recognitionby the state of no minority, whether reli-gious, linguistic or sexual, the establish-ment of a uniform civil code, no politicalsafeguards for any minority and no reli-gious instruction in any state schools, – norits mirror opposite, claiming a right to thepractice of religion, state recognition forreligious as well as linguistic minorities,personal laws to be included in fundamen-tal rights, political safeguards for all re-ligious minorities, and religious instruc-tion in state schools, captured the require-ments of secularism in the context of India’ssocial diversity. The first position sufferedfrom a ‘statist’ conception of nationalism,“giving an inescapably ‘statist’ orientationto the very conception of any politicalunity across religious communities andother social divisions”.60 It wished toestablish a direct link between the citizensand the state, by weakening all otherloyalties and commitments of individuals.Apart from neglecting the importance ofcultural and religious considerations toone’s identity, this conception of secular-ism reflected a naive belief in the benignnature of the modern democratic state. Thesecond position was weakened by its fail-ure to provide any avenues for dissentwithin different religious communities.

Much more important were two inter-mediate positions in the Constituent As-sembly, one of which sought, for instance,to combine the right to religious worshipand to a uniform civil code with politicalreservation for minorities. This positionlost, and the one which is reflected in theactual articles of the Constitution, definedthe right to religion broadly as the rightto religious practice, but refused to grantpolitical safeguards to religious minorities.

Today, we are inclined to favour aconception of a secular state as an equalrespecter of all religions. Can the Constitu-ent Assembly debates throw any light onwhether this conception requires not onlythat religion be defined broadly by thestate, but also that minorities must begranted political safeguards. Is this theonly way that the state can prevent itselffrom becoming a Hindu state or will thisadded provision worsen the situation forIndian democracy?

Notes[A version of this paper was presented onSeptember 8, 2001, at ‘The Philosophy of theIndian Constitution’ seminar held at Goa. I wouldlike to thank Rajiv Bhargava, Gurpreet Mahajan,Pratap Mehta, Mushirul Hassan, Rochana Bajpaiand others at that conference.]

1 Constituent Assembly Debates – Vol X, p 439,hereafter cited as CAD-X.

2 CAD-X, p 441.3 CAD-X, p 446.

4 Another example that could have been citedis the printing of the words, ‘In God we trust’on every American dollar bill.

5 CAD-X, p 438.6 Ibid.7 CAD-X, p 447.8 Aijaz Ahmad, Lineages of the Present, Tulika,

New Delhi, 1996, p 313.9 Ahmad, p 318.

10 B Shiva Rao, The Framing of India’sConstitution: Select Documents – Vol IV,Government of India Press, Nasik, 1968, p 593,hereafter cited as SD-IV.

11 Jawaharlal Nehru, cited in T N Madan, ModernMyths, Locked Minds, OUP, Delhi, 1997, p 245.

12 SD-II, p 16.13 SD-II, pp 62-63.14 CAD-VII, p 865.15 CAD-VII, p 819.16 Ibid17 SD-II, p 123.18 K M Munshi, Indian Constitutional Documents,

Vol I, Bharatiya Vidya Bhavan, 1967, p 309.19 Ibid.20 CAD-VII, p 83121 CAD-VII, p 873.22 CAD-X, p 453.23 This was proposed by Jaya Prakash Narayan.

See B Shiva Rao, The Framing of India’sConstitution - A Study, Government of IndiaPress, Nasik, 1968, p 266, hereafter cited as Study.

24 See D E Smith, India as a Secular State,Princeton University Press, New Jersey, 1963,pp 3-8 and 135-38. For Smith “the conceptionof a secular state involves three distinct butinterrelated sets of relationships concerningthe state, religion and the individual – [between]religion and the individual (freedom ofreligion), the state and the individual(citizenship), and the state and religion(separation of state and religion)” p 4.

25 SD-II, p 173.26 SD-II, p 208.27 SD-II, p 140.28 SD-II, p 187.29 Processions and marriages were the two

activities that were specified by most membersas part of the practice of any religion.

30 SD-II, p 146.31 Ibid.32 CAD-VII, p 816.33 Study, p 276.34 Study, p 277.35 SD-II, p 79.36 SD-II, p 89.37 SD-II, p 147.38 SD-II, p 162.39 CAD-VII, p 54040 Ibid.41 CAD-VII, p 544.42 CAD-VII, p 548.43 SD-IV, p 391.44 SD-II, p 109.45 SD-II, p 103.46 SD-II, p 113.47 SD-II, p 412.48 CAD-V, p 201.49 CAD-V, p 260.50 SD-IV, p 593.51 Ibid.52 K M Munshi, p 209.53 SD-IV, p 600.54 SD-IV, p 606.55 Study, p 263.56 Ibid.57 CAD-VII, p 869.58 Study, p 269.59 CAD-VII, pp 873-74.60 Amartya Sen in K Basu and S Subrahmanyam

(eds), Unravelling the Nation, Penguin, NewDelhi, 1996, p 26.

� �

Triple Talaq Judgment and the Continuing Confusion about the Constitutional Status of

Personal Law

The judgment in Shayara Bano does not change the legal position of Instant Triple Talaq that

existed before, but creates confusion on the constitutional status of personal law, and misses a

great opportunity to elaborate on the constitutional vision of justice for women from minority

religious groups.

The Supreme Court’s 22 August judgment in Shayara Bano v Union of India (2017), has been

described by many commentators as the Court declaring the practice of instantant triple talaq

(or divorce, hereinafter ITT) to be “unconstitutional". Such a description of the judgment is

incorrect. The judgment is made up of three separate opinions: one by Chief Justice Jagdish S

Khehar and Justice S Abdul Nazeer; one by Justice Kurian Thomas; and one by Justices

Rohinton F Nariman and Uday U Lalit. The three opinions concur on some issues and differ

on others. This makes the task of figuring out the judgment’s exact holding a difficult and

confusing exercise. Carefully tracing the convergences and divergences leads one to conclude

that the majority faulted ITT and “set it aside” not because it was found to be unconstitutional,

but rather on the grounds that it was un-Islamic. What is more, even with a five-judge bench

decision, the constitutional status of personal law remains as uncertain as before, which makes

the prospects of any future attempt to change discriminatory personal law provisions by

challenging their constitutional validity, difficult.

Brief Background

To go over the facts briefly, Shayara Bano, a woman survivor of domestic violence and dowry

harassment had been unilaterally divorced through ITT. She filed a petition before the Supreme

Court seeking a declaration that the practices of ITT, polygamy, and nikah halala in Muslim

personal law were illegal, unconstitutional, and in violation of Articles 14 (equality before law),

15 (non-discrimination), 21 (right to life with dignity) and 25 (right to freedom of conscience

and religion) of the Indian Constitution. The Court however chose to examine the issue of ITT

alone. The Union of India supported the petition. Among the others whointervened in this case,

the All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind argued that the Court

did not have jurisdiction to entertain a constitutional challenge to Muslim personal law and that

the matter was in the domain of the legislature. The Bebaak Collective and the Centre for Study

of Society and Secularism – two organisations working with Muslim women – supported the

petition and urged the Court to declare that personal law was subject to the Fundamental Rights.

Bharatiya Muslim Mahila Andolan and Majlis – also women’s rights organisations – argued

that in view of previous decisions of the Court, the bench need not consider the question

whether constitutional validity of ITT, but should rather emphasise the existing legal remedies.

As has been pointed out by many commentators throughout the course of this case, ITT lacked

legal validity even before this petition was filed, though it had not been declared

“unconstitutional” by any court. Since the 1980s, a number of high courts had held that for

talaq to be valid, it must be pronounced for a reasonable cause, and must be preceded by

attempts at reconciliation facilitated by mediators representing both parties. According to this

view, though widely invoked by husbands and authorised by the clerics, ITT was already

illegal. In an earlier article in this journal commenting on Shayara Bano’s petition, I had

written,

“…far from being rooted solely in religion, two out of the three provisions of Muslim personal

law under scrutiny in this case already exist in a framework shaped by secular considerations

such as reasonableness, equity and state policy favouring monogamy as a matter of “social

reform”. And yet, uncertainty persists over whether personal laws are truly “laws” that can be

examined through the lens of constitutional ideals of equality, non-discrimination and dignity.”

(Mandal 2016)

The issue goes back to a 1951 Bombay High Court judgment in the case, State of Bombay v

Narasu Appa Mali (1952), where a two-judge bench had held that personal law was not covered

by the phrase “laws in force” used by the Constitution in Article 13 to denote all those pre-

constitutional enactments which were “in force” at the time of adopting the Constitution, and

which were subject to the Fundamental Rights. The two judges held that this was because the

source of personal law was religion rather than the state. The foundations of this judgment have

been criticised by eminent legal scholars like H.M. Seervai (2015) and A M Bhattacharjee

(2016). Several high court benches have also called for its reconsideration. The Supreme Court

affirmed it in the 1980 judgment Sri Krishna Singh v Mathura Ahir (1980), then implicitly

overturned it in the 1996 judgment C Masilamani Mudaliar and Others v The Idol of

Swaminathaswaminathaswami Thirukoil (1997) and then upheld it again in the 1997 judgment

Ahmedabad Women’s Action Group v Union of India (1997). Thus, Shayara Bano’s case was

important not just for how the Court decided her immediate claims, but also because it offered

an opportunity for a five-judge bench of the Supreme Court to clarify the constitutional status

of personal law.

Triple Talaq as Religious Faith

The two two-judge opinions in the Shayara case take diametrically opposite approaches to the

question of constitutionality. Justice Khehar’s opinion to which Justice Nazeer joins, takes the

view that those parts of Muslim personal law on which the state has enacted a law – such as

the Dissolution of Muslim Marriage Act, 1939 or the Muslim Women’s (Protection of Rights

on Divorce) Act, 1986 – can be tested for compliance with the Fundamental Rights, but those

parts that were uncodified cannot be. He bases this on the view that the Muslim Personal Law

(Shariat) Application Act, 1937, which provided that Shariat was the only law applicable to the

Muslims and not customary law, had a limited purpose. That limited purpose, according to

Khehar, was to only state that customary law was not applicable to the Muslims in matters of

marriage, divorce, inheritance, and so on. The 1937 Act did not automatically bring the

uncodified part of Muslim personal law within the state’s jurisdiction, and as a result, it did not

come within the phrase “laws in force” in Article 13 of the Constitution.

Thus, Khehar affirms the Narasu judgment. Although the Union of India had urged that the

judgment should be reconsidered, Khehar refrains from doing so, stating that the bench cannot

do this as it had been upheld earlier by Supreme Court benches of the same strength. This is

incorrect, as both the instances where Narasu was upheld were two-judge benches. Khehar

further immunises Muslim personal law from constitutional challenge by holding that it is

protected as a matter of religious freedom under Article 25. Specifically on ITT, the judge

holds that it had been practiced by the Sunni community for centuries, which made it part of

their religious faith and was protected from interference by the Court. Curiously, in framing

the issue thus, he gives up his earlier distinction between codified and uncodified laws, and

goes on to hold the entire category of personal law to be immune from constitutional challenge.

He concludes that only the state canbring changes in the domain of personal law through

legislation within permissible limits of Article 25 and trump the interest of religious freedom.

Justices Khehar and Nazeer therefore deny the petition, and direct the state to legislate on the

issue within six months.

Triple Talaq as Manifest Arbitrariness

Justices Nariman’s opinion with which Justice Lalit concurs goes in the opposite direction.

Nariman takes the view that the function performed by the 1937 Act was not only to abrogate

the application of customary law to Muslims. It also performed a positive function, in that it

also provided what was the applicable law. The entity “Muslim personal law” according to on

this view, was brought into existence by the state in exercise of its civil authority, which

brought it squarely within the phrase “laws in force” in Article 13. Thus, according to Nariman,

even uncodified Muslim personal law can be tested for compliance with the Fundamental

Rights. The judge contradicts the rationale on which Narasu was based. Further, he sets aside

an earlier two-judge bench decision of the Supreme Court that had relied on Narasu. But

curiously, having rejected Narasu in both substance and application, he notes that the question

of whether Narasu is still valid law should be examined in a “suitable case”.

The centerpiece of Justice Nariman’s opinion is the position that what is “manifestly arbitrary”

is also unreasonable and can be struck down under Article 14, which is concerned with equality

before law and equal protection of the laws. Justice Nariman notes that ITT is an “irregular or

heretical form of talaq” since though lawful, it is considered to be incurring the wrath of God.

For him, the arbitrariness of IIT, when seen through the lens of constitutional reasoning, its

arbitrariness is thrown into sharper focus. The judge concludes:

“…it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can

be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation

so as to save it.” (Shayara Bano v Union of India 2017: para 57)

Thus, in Nariman’s analysis, the religion-based finding that ITT was irregular and sinful,

coincided with the constitutional reasoning-based finding that ITT was manifestly arbitrary.

Justices Nariman and Lalit therefore struck down the 1937 Act, to the extent that it recognised

ITT.

Triple Talaq as Un-Islamic

Justice Joseph does not fully join either of the above positions, but follows a different path. On

the question of the nature of the 1937 Act, he agrees with Justice Khehar and disagrees with

Justice Nariman. Thus, though he agrees with Justice Nariman’s view of arbitrariness as an

appropriate test for Article 14, he holds that the 1937 Act cannot be subjected to it. But he

disagrees with Justice Khehar too. Justice Khehar held against determining the validity of ITT

by referring to the Hadiths, as he felt that it was beyond the judicial role and expertise. Justice

Joseph on the other hand is of the opinion that the 1937 Act, having declared Shariat to be the

law applicable to Muslims, had essentially left it to the judges to find out what the Shariat said

on an issue. Therefore, leaving the question of constitutionality aside, what he pursues in his

opinion is

“...whether what is Quranically wrong can be legally right …. the simple question that needs

to be answered in this case is only whether triple talaq has any legal sanctity.” (Shayara Bano

v Union of India 2017: para 1) His reading of the relevant verses leads him to conclude that

“an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps

before talaq attains finality” (Shayara Bano v Union of India 2017: para 10).

This was the view adopted by a number of high courts since the 1980s and thiswas endorsed

by the Supreme Court in Shamim Ara v State of UP in 2002. Further, between 2002 and 2017,

a number of high court benches had relied on the Shamim Ara case and invalidated ITT. Thus,

Justice Joseph disagrees with Justice Khehar on two more points: one, that Shamim Ara dealt

with the valid procedure for talaq in general, but did not contain a rule on ITT and two, that

ITT was integral to the religious faith of the Muslims. On the first, he notes that Shamim Ara

had effectively invalidated ITT, though it did not say it in so many words. On the second issue,

he notes that since the purpose of the 1937 Act was to abolish customs that were contrary to

Shariat and ITT wascontrary to the Quranic tenets, it was abolished by the 1937 Act. Hence, it

could not be said to be an integral part of the Muslim faith and could not be immunised by

resorting to Article 25. Here, he again disagrees with Justice Nariman, who held that the 1937

Act authorised ITT. Justice Joseph reiterates that the Shamim Ara judgment be upheld and

finds ITT to be lacking legal validity, concluding,

“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is

bad in theology is bad in law as well.” (Shayara Bano v Union of India 2017: para 26)

Conclusion

Having laid out the differences in the three opinions above, we find very few points on which

a clear majority position emerges. Even when the judges agree on the outcome, they do so for

different reasons. Justices Nariman and Lalit find ITT to be un-Islamic and unconstitutional.

Justice Joseph does not go into the question of constitutionality, but finds IIT to be un-Islamic

and hence, invalid. Thus, by no means can it be concluded that in Shayara Bano, the Court has

declared ITT to be unconstitutional.

On the issue of the constitutional status of personal law, we find an utterly confusing judgment.

Two judges hold at one point that uncodified personal law is beyond the scope of the

Fundamental Rights, but following rather dubious logic, hold at a later point that the entire

domain of personal law is protected as a matter of religious freedom, and they affirm Narasu.

Two other judges hold personal law to be subject to the Fundamental Rights, but they do not

explicitly set aside Narasu. One judge rejects the proposition that uncodified Muslim personal

law can be tested against Fundamental Rights, rejects that it is protected by religious freedom,

acknowledges the ghost of Narasu, but avoids the issue altogether. Arguably, Justice Joseph’s

approach to the problem shows that it could have been tackled even without a constitutional

challenge. But since the petitioners had raised the issue of constitutionality, the judges could

have addressed the issue more thoughtfully.

In the final analysis, the judgment in Shayara Bano does not change the legal position of ITT

that existed before, but creates confusion on the constitutional status of personal law and misses

a great opportunity to elaborate on the constitutional vision of justice for women from minority

religious groups

Do Personal Laws Get their Authority from Religion or the State—Revisiting

Constitutional Status

Shayara Bano’s constitutional challenge to the practices of triple talaq, polygamy and nikah

halala, currently before the Supreme Court (SC), has raised a larger question: can the secular

state be held accountable for violations caused by the operation of religious personal law?

Closely related to this is the fundamental question of the constitutional status of personal laws:

What is the source of authority behind personal laws in India? Is it religion or is it the secular

state’s law-making power?

First, it needs to be reiterated that the practices of the Muslim family law that Bano has

questioned in her petition do not exist outside the sphere of state regulation at present. Triple

talaq—the husband unilaterally divorcing the wife by pronouncing talaq three times at one

go—already stands invalidated by the 2002 Supreme Court judgment Shamim Ara v State of

UP, which held that unilateral talaq by husband is valid only when it is pronounced for a

reasonable cause and is preceded by efforts at reconciliation.

Similarly, on polygamy, judicial decisions have endorsed the Quranic injunction that a Muslim

male may be allowed to marry four times only if he is able to maintain all four wives equitably.

The failure to meet this high standard gives a Muslim wife the right to seek divorce and

maintenance under state law. To this, a further restriction was added in 2015, when the apex

Court upheld the Central Civil Service (Conduct) Rules’s prohibition of bigamy in the case of

Muslim male central government employees in Khursheed Ahmad Khan v State of UP (2015).

As for Nikah Halala—the practice whereby, for a divorced couple to be able to marry each

other again, the wife must marry another man and then be divorced by him—it is true that it

has not been subjected to any secular principle so far. But far from being rooted solely in

religion, two out of the three provisions of Muslim personal law under scrutiny in this case

already exist in a framework shaped by secular considerations such as reasonableness, equity

and state policy favouring monogamy as a matter of “social reform”. And yet, uncertainty

persists over whether personal laws are truly “laws” that can be examined through the lens of

constitutional ideals of equality, non-discrimination and dignity.

Long Shadow of a 1951 Judgement

The source of this uncertainty dates back to the 1951 decision of the Bombay High Court in

State of Bombay v Narasu Appa Mali (1952). In this case, a Hindu man convicted under a

Hindu bigamy prohibition law complained that the law violated his fundamental right to

equality under the recently adopted Constitution, since the law prohibited Hindu men from

committing bigamy, but not Muslim men.

A two-judge bench of the Bombay High Court held that personal laws could not be invalidated

by courts even if they are found to be opposed to fundamental rights, since personal laws were

not “laws in force” as defined by Article 13 of the Constitution. Thus, personal laws were held

to be immune from constitutional challenge. The Narasu judgement was upheld by a SC bench

in 1980, in Sri Krishna Singh v Mathura Ahir (1980).

In a judgement in 1996, it seemed as if the Court had implicitly overturned the Narasu rationale,

since it noted that personal laws would be void if they violated fundamental rights (C

Masilamani Mudaliar and Others v The Idol of Swaminathaswaminathaswami Thirukoil 1997).

But the very next year, in Ahmedabad Women’s Action Group v Union of India (1997), the

SC once again upheld Narasu and dismissed a petition challenging various provisions of Hindu,

Muslim and Christian personal laws.

Among the high courts, the reception of Narasu has differed vastly. While some have faithfully

adhered to its rationale, others have called for its reconsideration (See Assan Rawther v Ammu

Umma (1971: Para 23); Re, Smt Amina v Unknown (1992); Saumya Ann Thomas v Union of

India (2010); Kunhimohammed v Ayishakutty (2010)).

In Bano’s case, the All India Muslim Personal Law Board (AIMPLB) which has become a

party to the case, has argued before the Court that following the Narasu judgement, the SC does

not have the authority to entertain a constitutional challenge to Muslim personal law. The

AIMPLB’s authority to speak for the entire Muslim community in India has been challenged

in recent times by various sections of the Muslim population, most prominently by Muslim

women’s organisations.[i] But what enables an obscurantist, patriarchal body such as the

AIMPLB, to challenge the state’s authority to intervene in Muslim Personal Law is precisely

the uncertainty over the constitutional status of personal laws, that is, does its authority come

from religion or the secular state. Notwithstanding what the SC decides in Bano’s case, it must

use this opportunity to revisit the faulty presumptions about personal laws upon which Narasu

was based and set it right.

Personal Laws Not a Simple Codification of Religious Commands

One such presumption in Narasu was that the basis of personal laws in India is not the

legislative authority of the state, but religion. Thus, one of the two judges, Justice

Gajendragadkar, wrote:

It is well-known that the personal laws do not derive their validity on the ground that they have

been passed or made by a Legislature or other competent authority in the territory of India. The

foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural

texts. (The State of Bombay v Narasu Appa Mali Para 1952: para 20)

Such an understanding is at odds with the evolution of personal laws in India. What eventually

came to be known as “Hindu and Mahomedan laws” were creations of the colonial state

following a complex process of rationalisation, rather than a simple codification of religious

commands (Cohn 1996: 57-75; Kugle 2001; Bhattacharya-Panda 2008). Rachel Sturman

describes the relationship between the colonial state and religious law as “a process in which

the state operated through religious law, shedding the ritual significance of that law into the

domain of social life while absorbing its governing functions into the state” (2012:10). Efforts

to transform social life through the state is particularly visible in the legal developments of the

late colonial period, where both Hindu and Muslim law were shaped by the economic and

political imperatives of the male elites of each religious community using the state (Parashar

1992: 140-150; Newbigin 2009, Sturman 2012: 210-222).

In the case of Hindu law, each time a change was introduced, the reformers relied on the state’s

lawmaking authority precisely because no support for the innovation could be found in the

religious scriptures. For instance, Mitakshara coparcenary, as interpreted by the colonial judges

held that if joint family funds were used for the education or training of a member, then the

member’s earnings from such training went back to the common pool of family property.

However, the Hindu Gains of Learning Act, 1930 made such earnings the individual property

of the earner. Though pursued in the name of protecting the interests of women in the family,

this change was primarily motivated by the interests of the emerging class of urban,

professional and mercantile men, who favoured fewer restrictions on the flow of capital

(Newbigin 2009). The Hindu Women’s Right to Property Act, 1937 that allowed a widow to

inherit the deceased husband’s share in the coparcenary property, can be looked at through a

similar lens.

None of these acts which now contribute to the Hindu personal law, had any clear precedent in

the scriptures or in regional Hindu practices, and entailed using civil authority to expand the

scope of individual property rights within the family, thereby completely reconstituting the

form of the Hindu family.

State’s Role in Shaping Muslim Personal Law

In the case of Muslim law, the motives behind reform using the state’s authority were more

political than economic. The Muslim Personal Law (Shariat) Application Act, 1937 which

provided that the “shariat” and not customary law or Anglo-Muslim law should be applicable

to the Muslim community in India, was backed by the Muslim elite’s desire to project Indian

Muslims as a unified “religious” community and hence one which was politically autonomous

(Newbigin 2009: 95-96; Sturman 2012: 213-218). Interestingly, this was also advocated in the

name of protecting the property rights of Muslim women.

The 1937 Act made “shariat” to be the law applicable to the Muslim community, not with

respect to every area where a shariat rule existed in the Quran, but only with respect to certain

areas of family life specified in the act: marriage, divorce, inheritance, women’s property, gift,

waqf and so forth. Matters such as inheritance of agricultural property, contracts and debt were

left out of the purview of shariat in Muslim Personal Law.

The key point is that shariat acquired exclusive jurisdiction over certain matters as “Muslim

Personal Law” because the state declared it to be so, and that the choice of these matters and

the final shape of the 1937 Act were determined by sociopolitical rather than “religious”

considerations. This was not peculiar to India. Iza Hussin’s recent book, The Politics of Islamic

Law, tells the fascinating story of the making of Islamic law in colonial Egypt, Malaya and

India, that underscores “Islamic law, as a product of, and venue for, politics” (2016: 9).

To take another example, consider the Dissolution of Muslim Marriage Act, 1939, which

provided grounds upon which a Muslim wife could seek divorce. This act mainly codified the

rules of divorce of the Hanafi school of Islamic law, elaborating on some of them and

substantially modifying some others. For instance, under Hanafi law, a minor cannot repudiate

his/her marriage, unless, upon attaining puberty, he/she can show that the guardian who had

given him/her in marriage had acted fraudulently or show that the marriage contract was to

his/her disadvantage. This is called “option at puberty”. The 1939 act modified this rule for

Muslim women (but not men) and provided that a woman who had been married before the

age of 15 could repudiate the same upon attaining puberty, if she did it before turning 18 and

if the marriage had not been consummated. Thus, today when a Muslim woman exercises the

option at puberty to repudiate her child marriage, the source of her right is not religion, but the

state.

To summarise, historically, Hindu and Muslim personal laws have implicated civil authority

in different ways and are shaped by secular elements to different degrees. While Muslim

Personal Law has a closer relationship to religious scriptures, both Hindu and Muslim and

religious personal laws in general emerge out of sociopolitical considerations like any other

law, which rely on the coercive power of the state for their authority. It is untenable therefore

to think that the body of laws referred to as “personal laws” derive their validity from religion,

rather than the state.

The fundamental question that we need to ask is what religious or divine character remains of

a command, when it is given statutory form and interpreted by state-appointed judges sitting in

state-established courts? Justice Krishna Iyer seemed to be thinking along these lines when,

disagreeing with Narasu’s rationale, he noted in a 1971 Kerala High Court judgment:

Personal law so called is law by virtue of the sanction of the sovereign behind it and is, for the

very reason, enforceable through Court. Not Manu or Muhammad but the Monarch for the time

makes ‘Personal law’ enforceable. (Assan Rawther v Ammu Umma 1971)

Since it is the state’s legislative authority that is the basis of personal law, there is no reason

why it cannot be subjected to the Constitution, just like other actions of the state.

Ongoing Legal Change

Bano’s case has evoked the liberal nationalist dream of a uniform civil code in some quarters,

based on their concern for the “religious” oppression faced by Muslim women. This is curious,

since (i) Shayara’s petition itself makes no such demand, and (ii) there is no direct connection

between reforming certain practices in Muslim family law and a uniform family law for the

entire nation. Contrary to popular belief, personal laws, including Muslim personal law, have

undergone a lot of changes in the last 30 years through piecemeal amendments introduced by

the legislature, but much more significantly through judicial interpretation in cases brought by

people like Bano (Subramanian 2008, 2014).

In the current case, instead of chasing the grand nationalistic vision of “one nation, one law”,

the Supreme Court of India would do well to contribute to that ongoing process of legal change

by setting aside the shadow of the 1951 Narasu judgement and holding personal laws subject

to fundamental rights. This would enable not just Muslim women like Bano, but also women

in other religions to challenge the discriminatory provisions in the personal laws applicable to

them.

LAW & SOCIETY

JUNE 18, 2016 vol lI no 25 EPW Economic & Political Weekly10

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is Senior Resident Fellow at Vidhi Centre for Legal Policy, New Delhi.

Uniform Civil CodeA Heedless Quest?

Alok Prasanna Kumar

The necessity or otherwise of a uniform civil code cannot be debated in the absence of a coherent conception of what the UCC will be and what it will do. Although it has urged the government to enact one, the Supreme Court’s own judgments reveal the hollowness in its understanding of the UCC. Perhaps, uniformity itself is no answer to the myriad problems of religion-based personal laws.

The writ petition fi led in the Sup-reme Court by Shayara Bano que-stioning the constitutional validity

of the “triple talaq” (Madhukalya 2016) has brought into the public domain once again the debate on the question of a uniform civil code (UCC) for all of India. In such debates, the UCC is put forth as a single solution to the myriad problems of the many religion-based personal laws in India. It is an idea that has received the support of the courts, many organi-sations working for women’s rights, and, of course, one major political party.

It is also complete fi ction. The UCC, as articulated by even its

most ardent proponents, is completely devoid of content. Its content seems to be whatever is necessary to make it essential to solve a particular problem that it is posed as a solution to. This is best seen especially in the manner in which it has been taken up by the Supreme Court once every decade for the last four decades.

Supreme Court Judgments

The fi rst time that the courts spoke of a UCC was when the Supreme Court in Mohd Ahmed Khan v Shah Bano Begum and Others (1985: para 32) exhorted the central government to enact a “common civil code” in the interests of national integration. Why the Supreme Court felt the need to mention a “common civil code” on the facts of this case is mystify-ing, as the law it had to interpret and apply in that case—Section 125 of the Code of Criminal Procedure, 1973—had long been held to apply across the board to adherents of all religions, irrespective of their own personal laws.1 The Court reiterated the same issue a few weeks later in a slightly different context, that of a marriage between a Christian woman and a Sikh man under the Indian

Christian Marriage Act, 1872 in Jordan Diengdeh v S S Chopra (1985). This time, the Court was concerned with the irretri evable breakdown of marriage between the parties and the fact that a divorce could not be granted on this basis alone.

The Court urged the government to come up with a UCC once again a decade later in a public interest litigation seek-ing to outlaw the practice of Hindu men abandoning their wives, without law-fully divorcing them, and converting to Islam for the sole purpose of marrying a second time (Sarla Mudgal, President, Kalyani and Others v Union of India and Others 1995). This time, the justifi cation offered was to prevent Hindu men from converting to Islam for the sole purpose of getting married a second time. Why a UCC is necessary to tackle fraud, beyond existing legal principles and criminal laws, is never fully articulated by the Court. In the Sarla Mudgal case (1995: Para 1), the Court explicitly holds up the Hindu Code as the model on the basis of which the UCC should be drawn up.

This was clarifi ed later by the Supreme Court to some extent in Lily Thomas, Etc, Etc v Union of India and Others (2000) to say that the Court could not direct the centre to introduce a UCC, but that did not stop the Supreme Court from once again affi rming the necessity and desir-ability of one in John Vallamattom and Another v Union of India (2003), this time in the context of succession. A little more than a decade after this, the Supreme Court has once again lamented the absence of a UCC in the context of the guardianship of a Christian child, without going into why a simple change in the Guardians and Wards Act would not suffi ce (ABC v The State (NCT of Delhi) 2015).

Contrary views have also been exp-ressed by the Court on occasion. Justice Sahai’s concurring opinion in the Sarla Mudgal case and the judgment in Pannalal Bansilal Pitti and Others v State of Andhra Pradesh and Another (1996) both concede that while a uniform law may be desirable, it cannot be imposed

LAW & SOCIETY

Economic & Political Weekly EPW JUNE 18, 2016 vol lI no 25 11

in one go and consensus needs to be built on the aspect.

On ‘Uniformity’

Perusing these judgments, it is obvious that the Court has absolutely no idea what a UCC looks like and what such a code should do. In each case, it has been offered as a panacea for a particular issue with which the Court was faced, as though the only real problem with India’s personal laws is not their misogyny or obsolescence, but their lack of uniform-ity. The Court in all these cases clings to the constitutional directive of Article 44, as if it were a clear articulation of the idea of what a UCC is.

Article 44 is itself laconic. It merely exhorts the state to create a “uniform civil code” for the whole nation. No other part of the Constitution even mentions the UCC. On the other hand, Articles 371A and 371G expressly exclude the applicability of parliamentary law on customary practices unless the legislatures of Nagaland and Mizoram, respectively, give their approval. Likewise, the Sixth Schedule of the Consti-tution vests exclusive lawmaking power regarding customs and family law to the regional and district councils in tribal areas of Assam, Meghalaya, Tripura and Mizoram. A UCC made by Parliament, therefore, cannot apply to all of India, especially the north-eastern states.

The Constituent Assembly while debat-ing Article 44 (then draft Article 35) also had no clear conception of what the UCC would be. Even those who defend the UCC discuss it in the most general of terms.2 While rejecting a proposed amendment that a UCC could not impinge on personal laws, B R Ambedkar clarifi es that such a code need not necessarily be mandatory, and it would, in fact, possibly be optional (GoI 1999). This would suggest that what Ambedkar really had in mind was some-thing like the Special Marriage Act, 1954 under which persons could choose to get married under that law and thereby be gov-erned by the Indian Succession Act, 1925.

Even the Hindu code, which sought to create a uniform law governing all Hindus, is not uniform in some of the most fun-damental aspects of family law. The validity of a marriage is linked to the customs and ceremonies of the particular

community;3 the inheritance rights of the members of the family is different for communities in Kerala and Tamil Nadu;4 who is capable of being adopted also depends on the custom and usage;5 the Hindu Minority and Guardianship Act, 1956 does not automatically apply to members of Scheduled Tribes.6 The claim that “since Hindus are governed by a uniform law, why not everyone else” falls fl at at the very fi rst step—the law is not uniform for all Hindus in the fi rst place. While, no doubt, the Hindu code makes several aspects of Hindu personal law uniform, it leaves custom and local practice undisturbed in several aspects.

Even the much touted example of a UCC, the Portuguese Civil Procedure Code, 1939 applicable to all communities in Goa, is not equally applicable to all communi-ties. It has different rules for Catholics and different rules for all other commu-nities. It even recognised a limited form of bigamy for Hindus (Noronha 2014).

If a UCC is really about “uniformity,” it will remove the requirement of religious ceremonies for the validity of marriages, abolish the concept of coparcenary prop-erty, and remove all distinctions between converts and non-converts over the inheritance of property. If uniformity in all respects is not desirable, then that is an acknowledgement of the folly of pro-moting a UCC without understanding the specifi cs of what it entails. If the goal is to address iniquities in personal laws of different religions, such iniquities must be addressed on their own terms instead of demanding adherence to a UCC.

Whether it is the courts, the Constituent Assembly or even those who are proposing the UCC as a panacea to gender inequality in laws or “national integrity,” no one seems to have a clear conception of what such a code would actually look like.

Perhaps, the UCC should be compared to Lewis Carroll’s (1950) fabled Snark—no one knows what it looks like or what it is supposed to do. Like Carroll’s intrepid crew, we have nothing but a blank paper where there should be a map describing how and where one might fi nd the UCC. A line here about Muslim women’s rights, an argument there against polygamy do not make for a “code.” The inability of anyone advocating the UCC to come up

with a coherent draft of what they are talking about seems to suggest that the UCC, like the Snark, is a Boojum that will make its fi nder disappear!

notes

1 See, for instance, Bai Tahira A v Ali Hussain Fissalli Chothia and Another (1979) and Fuzlunbi v K Khader Vali and Another (1980).

2 Speeches of Alladi Krishnaswami Iyengar and K M Munshi (GoI 1999).

3 Section 7 of the Hindu Marriage Act, 1955.4 Section 17 of the Hindu Succession Act, 1956.5 Section 10 of the Hindu Adoptions and Mainte-

nance Act, 1956.6 Section 3 of the Hindu Minority and Guardian-

ship Act, 1956.

References

ABC v The State (NCT of Delhi) (2015): SCC, SC, 10, p 1.Bai Tahira A v Ali Hussain Fissalli Chothia and

Another (1979): SCC, SC, 2, p 316.Carroll, Lewis (1950): “The Hunting of the Snark,”

Poets of the English Language, W H Auden and N H Pearson (eds), New York: Viking Press, viewed on 13 June 2016, http://www.poetry-foundation.org/poems-and-poets/poems/det a- il/43909.

Fuzlunbi v K Khader Vali and Another (1980): SCC, SC, 4, p 125.

GoI (1999): “Constituent Assembly Debates (Pro-ceedings),” Vol 7, 23 November 1948, Lok Sabha Secretariat, Government of India, viewed on 13 June 2016, http://164.100.47.132/LssNew/con-stituent/vol7p11.html.

John Vallamattom and Another v Union of India (2003): SCC, SC, 6, p 611.

Jordan Diengdeh v S S Chopra (1985): SCC, SC, 3, p 62.Lily Thomas, Etc, Etc v Union of India and Others

(2000): SCC, SC, 6, p 224.Madhukalya, Amrita (2016): “Meet Shayara Bano,

the Woman Who Wants to Ban Triple Talaq,” Daily News and Analysis, 26 April, viewed on 13 June 2016, http://www.dnaindia.com/india/report-meet-shayara-bano-the-woman-who-wa -nts-to-ban-triple-talaq-2206111.

Mohd Ahmed Khan v Shah Bano Begum and Others (1985): SCC, SC, 2, p 556.

Noronha, Frederick (2014): “Goa’s Civil Code Has Backing of BJP, but It’s Not Truly Uniform,” Scroll.in, 9 June, viewed on 13 June 2016, http://scroll.in/article/666255/goas-civil-co d e-has-backing-of-bjp-but-its-not-truly-uniform.

Pannalal Bansilal Pitti and Others v State of Andhra Pradesh and Another (1996): SCC, SC, 2, p 498.

Sarla Mudgal, President, Kalyani and Others v Union of India and Others (1995): SCC, SC, 3, p 635.

Obituaries

The EPW has started a section, “Obituaries”, which will note the passing of teachers and researchers in the social sciences and humanities, as also in other areas of work.

The announcements will be in the nature of short notices about the work and careers of those who have passed away.

Readers could send brief obituaries to edit@epw.in.

Page 1

Uniform Civil Code: Not to divide by religion, but to unite by nationality Legal Monitor Worldwide July 16, 2014

Wednesday

Uniform Civil Code: Not to divide by religion, but to unite by nationality

LENGTH: 926 words

Debate on Uniform Civil Code has once again come to the fore after Law Minister Ravi Shankar

Prasad on Monday said that issue requires consultation of various stakeholders. The Union Minister

said that provision is already mentioned in Article 44 of the Constitution and only thing now needed

is proper discussion over it.

In a written reply to a question raised by party MP Yogi Adityanath in Parliament, Minister said,

"Provisions of Uniform Civil Code is there in Article 44 of the Constitution. Wide stakeholder

consultation would be required for further steps in this regard".

Bringing the Uniform Civil Code means to make change in entire gamut of personal laws related to

property, marriage, divorce, maintenance, adoption and inheritance. The minority perceives that it is

the Government's interference in their personal matter and terms this (UCC) as a conspiracy against

the community to annihilate them.

Where UPA stands?

As Minority always ups in arm with the mention of the topic, successive Congress's Government

never dared to touch the issue. In a written reply to Parliament in 2011, former Law Minister M

Veerappa Moily had said that Central Government will not touch the topic.

"Bringing in a Uniform Civil Code involves changes in the Personal Laws including those of the

minority communities. Therefore, it has been the consistent policy of the Central Government not to

interfere in the Personal Laws of the minority communities unless the necessary initiatives for such

changes come from a sizeable cross-section of such communities themselves", a 2011 PIB report

said.

BJP's position

But BJP believes that there should be a single law for all Indian citizens irrespective of their reli-

gion.

BJP in its election manifesto had prominently made this point. "The party believes that there cannot

be gender equality till such time India adopts a Uniform Civil Code which protects the rights of all

women and BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions

and harmonising them with the modern times," BJP manifesto had said.

Earlier, in an interview to Urdu weekly Nai Duniya, Prime Minister Narendra Modi had said, "Con-

stitution says that the Government will make efforts to implement the Uniform Civil Code.... The

second important point i would like to make clear is that implementing a UCC does not mean that

all citizens of the country will be brought under the Hindu code.

"I believe that there are several provisions in the Hindu Code which are irrelevant and they need

reforms. Carrying 18th century laws in 21st century is unnecessary". Legal aspect

The Article 44, which comprises the Part IV of the Constitution of India, lists UCC as one of the

Directive Principles of State policy which can't be enforced by any court.

Recently, former Supreme Court Judge Markandey Katju had supported the provision saying mi-

nority faced the consequences for this outdated law and vote-bank politics is main reason for not

making this provision into a law.

Page 2

Uniform Civil Code: Not to divide by religion, but to unite by nationality Legal Monitor Worldwide July 16, 2014

Wednesday

"Muslims suffered due to absence of Uniform Civil Code. An archaic law can't apply to present

times," Press Council of India Chairman Katju said.

Uniform Civil code and historical aspect

At present, different set of rules and laws are in place for different communities as far as the matter

concerned with marriage, divorce, maintenance, adoption and inheritance. Under Uniform Civil

Code, idea is to make one unified set of laws which will comprise of all these personal rules. Every

citizens of India have to abide by those 'unified set of laws' irrespective of their religion and castes.

Currently, among States only Goa has this similar provision called Goa Civil Code or the Goa

Family Law. Though, first Prime Minister Jawaharlal Nehru had raised this demand during his ten-

ure but only succeed to include it in Directive Principles of the Indian Constitution. Even Hindu

Code Bill faced massive protests but ultimately, it scraped through in 1956.

Shah Bano case

Shah Bano case brought this debate to forefront once again in 1985. The case was about a

65-year-old Muslim lady named Shah Bano who had demanded alimony from her husband after she

was abandoned by him. According to the provision of Muslim law, Bano was entitled to three

months' maintenance. The matter reached to Supreme Court which not only ruled in the favour of

the deserted lady but also referred to the need to enact a Uniform Civil Code. This judgement of

Court invited huge protest among Muslim communities saying they (court) were interfering in our

personal law which Constitution never allowed.

Conclusion

Now, going by the Law Minister's comment that emotive issue requires consultation of various

stakeholders is praiseworthy. Point is there should be a talk on the contentious issue and nothing

wrong with that. Muslims groups themselves should come forward with their own point of views.

The Prime Minister has reiterated the statement that implementing a UCC does not mean that all

citizens of the country will be brought under the Hindu code so they needn't to become insecure

about that. Their (Muslims) interest will be safeguarded in the best possible ways. But at the same

time, intellectuals of minority community should also understand that if some rules have become

redundant that must be tweaked upon. If we are counted as one not as Hindu or Muslims but Indians

then why not a single law should govern us all?

Everyone should get this message clear that UCC is not to divide by religion, but to unite by nation-

ality.

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Page 1

Why India doesn't have a Uniform Civil Code

SECTION: POLITICS AND NATION

LENGTH: 836 words

Now that Supreme Court has made instant triple talaq illegal, the debate on personal laws is gaining centre-stage yet

again. Should India allow each community its personal laws or should all Indians follow a uniform civil code? Personal

laws deal in the main with family issues such as marriage, divorce, inheritance and are by and large skewed against

women across communities and religions. Yet, some voices even from women's movements are wary about a uniform

civil code. What is their say? Why is a uniform code desirable and what fears does it trigger? Here, a primer on the

issue

What is Uniform Civil Code?

It was first raised as a demand in the 1930s by the All India Women's Conference, seeking equal rights for women, ir-

respective of religion, in marriage, inheritance, divorce, adoption and succession.

While the Constituent Assembly and Parliament considered such a Uniform Civil Code desirable, they did not want to

force it upon any religious community in a time of strife and insecurity. They left it as a Directive Principle of the Con-

stitution, hoping it would be enacted when the time was right.

Why does India have personal laws?

Each religious community in India has certain unique practices in family life, from marriage to inheritance and from

marital separation to maintenance and adoption. Many of these are unfair to women, in different ways. India allows

each community to practise its personal law, but these cannot violate constitutional rights.

There are also civil alternatives like the Special Marriages Act which any citizen can opt to follow.

Under Ambedkar's stewardship, Hindu personal law was codified in the 1950s by Parliament, erasing distinct practices,

though inequalities between men and women still persist and custom prevails in some aspects. The majority religion is

easier to reform; Pakistan, Bangladesh, etc. have reformed Muslim law while being cautious with Hindu practices. In-

dian lawmakers have also been more hesitant to change religious laws for minorities.

In 1986, the Supreme Court's Shah Bano judgment for maintenance was amended by Parliament, in a way that placated

the Muslim clergy. Muslim personal law has not been codified by Parliament, except through the Shariat Act of 1937

and the Muslim Women (Protection of Rights of Divorce) Act of 1986. Judges have to rely on Islamic jurisprudence in

a case-by-case manner. The Bharatiya Muslim Mahila Andolan, which fought triple talaq in court, has sought codifica-

tion of Muslim law to remove unjust practices.

Meanwhile, incremental change has happened over the decades.

Hindu succession was reformed by Parliament in 2005, and Christian divorce rights were made genderequal in 2001.

The courts have steadily affirmed women's rights of maintenance, adoption, etc. in various judgments, strengthening

reform in minority communities.

Who is pushing for a Uniform Civil Code?

There is vocal support for the idea from people with different motivations. Some feel that only the Hindu community

has had its practices codified by Parliament so far and want minority practices to be similarly disciplined.

Some feel that secularism means taking out all traces of religion from family law and submitting to a single civil code

that applies to all Indians in the same way. Some feel that all religious laws discriminate against women, and that the

state owes its citizens a single, genderequal set of laws.

Who is against the Uniform Civil Code right now?

Page 2

Why India doesn't have a Uniform Civil Code The Economic Times August 25, 2017 Friday

Many voices in the women's movement, people from minority communities, and others of a multicultural secular bent

resist the Uniform Civil Code, saying that the state should push for uniform rights rather than a single code. They call

for rooting out gender bias within existing personal laws, rather than flattening religious difference under a code that

they fear may be created in the mould of the Hindu majority.

They also argue for expanding civil alternatives like the Special Marriages Act, the Domestic Violence Act, the Juvenile

Justice Act, etc. which apply to all women, irrespective of personal law. In their view, a Uniform Civil Code would be

desirable only if it is fair to all communities, and not in a situation where minorities feel insecure.

What would a Uniform Civil Code look like?

An ideal Uniform Civil Code is easier to discuss than enact; there has never been a clear draft of such a code. It would

have to restructure many laws, and forge a neutral standard. While polygamy and arbitrary divorce associated with Is-

lam would go, so would the tax benefits of the Hindu undivided family.

Reservation would have to be extended to all religions. Distinctive practices of Buddhism, Jainism and Sikhism might

also have to end, in the domain of family law. In some aspects, Muslim law is better for women, since they recognise

individual rights to property, and because marriages are civil contracts with fixed obligations, rather than sacraments.

All these would have to be taken into consideration for a just Uniform Civil Code.

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