How hijab row is a major litmus test whose outcome may decide the sturdiness of Indian Constitution


Even as I write this and even as the Karnataka High Court continues to livestream the Udupi hijab case, the “case” itself has proceeded along familiar lines on the ground across India. The ante of Islamic aggression has been upped in an alarming fashion, unsurprisingly, in Murshidabad, West Bengal. TMC MLA Manirul Islam has thundered that “hijab shall remain till Qayamat”, and variants thereof. But more on that later.

File image of Karnataka High Court. WikimediaCommons@Palagiri

Past tense, future tense

We concluded the previous part of this series with a note that history is an invaluable, indispensable and inevitable guide to understand the UCC issue by trying to grasp the real nature of a complex superstructure made of interconnected threads. Two such important threads include: (1) the historical journey of Hindu laws; and (2) the history of the practical application of Islamic law since Muslim rule dominated India for over five centuries.

The all-encompassing term that encapsulates Hindu law both in spirit and application is dharma, a term derived from the root dhr meaning “to uphold,” “to sustain,” “to nurture,” etc. There is an oceanic treasure of literature spread over at least two millennia that demonstrates how Dharma translated in the practical realm of law. Dharma was the touchstone of political or state policy, deciding justice, giving direction and order to society and regulating the conduct of the individual. Dharma was also the source from which the ruler derived his power as a political head and judicial supremo (akin to the Chief Justice of the Supreme Court in contemporary parlance).

PK Telang is now a forgotten name. But in his time, he was a renowned freedom fighter, political philosopher, Theosophist, and educationist. In a brilliant lecture delivered in Thanjavur in October 1917, he provided perhaps one of the best descriptions of this dharma-based political and legal system.

“The word Rajan (or King) means one who can keep the people contented. Power and authority were implicitly admitted to rest on the sanction and the good-will and consent of the people. The ultimate right of the people to be the sole arbiters as to the kind of government they would have and the persons they would have to govern them, was recognized. This recognition was given concrete form in two restraints on the power of the King…He could not transcend Dharma. What is Dharma? The custom of the people, admitted and sanctified as binding law and imprimatur of those who were the knowers and guardians of the people’s culture,” he writes.


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The other scholar extraordinaire, Dr S Srikanta Sastri paints the same picture albeit with a different hue showing us the overall scene: “In the history of the world, it is only Hindu Dharma that gave not only to India but to all her neighbours an organic conception of society based upon economic as well as spiritual needs…it attempted to mitigate the evil consequences of great disparity by aiming at only the essentials…Liberty and law were synthesized to achieve spiritual freedom.”

In its essentials, the Hindu state and its legal system was not political in the sense that we understand the term today. The work of the people was carried on by the people themselves in the form of social institutions such as Panchayats, community guilds, mercantile and other social organisations each with their own set of laws. In turn, these laws had royal sanctions and disputes were tried and resolved accordingly. This legal wisdom had evolved over centuries of trial and error before being concertised. It was based on a rather common sense experience: the heads or prominent members of each community knew their own functions more intimately than some political authority sitting far away in the capital city. Indeed, notwithstanding the sweeping damage that the colonial British rule did to India and its Hindu society, one of the areas that was largely left untouched was this unbroken Hindu legal system especially relating to personal laws including but not limited to succession, inheritance, and overall, the Hindu family system.

Tragically, the sort of democracy and legal framework that India adopted in 1950 was the foundational axe that systematically chopped off whatever cohesion was left in the Hindu society. In his extraordinary volumes on the Dharmasastra, PV Kane gives us the briefest outline of this destruction: “The Constitution makes a complete break with our traditional ideas. Dharmasutras and Smritis begin with the dharmas (duties) of the people…the teaching of the old dharma was about duties and obligations. Rights follow duties discharged. Unfortunately, this thought finds no place in the Constitution…The Constitution engenders a feeling among common people that they have rights and no obligations whatsoever and that the masses have the right to impose their will and to give force of law and justice to their own ideas and norms formed in their own cottages and tea shops.”

The politics of Nehruvian Muslim appeasement apart, the last observation of PV Kane is at the root of much destruction that has occurred in our public life in the last seven-plus decades: opinions manufactured in roadside tea shops which, through senseless agitations, obtained the force of law. Its latest and clearest reflection is the Congress party’s petition backed by a cacophony of communal vested interests that wearing the hijab must be made a “fundamental right.” The same applies to its other specious and dangerous “argument” in the Karnataka High Court about something called “essential religious practices.” We can leave it at that for now.

Arguably, the single-most powerful blow delivered to the Hindu society by that Constitution-mandated axe was the Hindu Marriage Act of 1955. In the run up to its eventual passage, it met with wide-ranging condemnation but cynical political manoeuvring won the day for the disastrous Act.

One of the finest critiques of the Hindu Marriage Act emanates from Acharya Kriplani (See: The Hindu Marriage Reform Act will not benefit Hindu Women, June 1955). The iconic DV Gundappa summed up this critique rather memorably: “ln a different category should be counted the doubtful service of attempting to alter the foundations of an ancient society by meddling with its marriage and inheritance laws which rest upon Faith in things not of the earth but of the spirit the justification for that meddlesomeness being nothing more valid than certain tentatively-held theories and half-approved hypotheses of the twilight sciences of biology and genetics. ln short, the political, economic and social policies now being imposed on the country are not as good as they could have been made if the Congress had been working under the vigilance of a powerful rival.”

Once again, Kane exposes the innate duplicity of this sweeping and irreversible destruction of the Hindu society through forced legislation. The following is a tiny and contextual excerpt from his comprehensive and perhaps the best exposition on the issue: “The Hindu Marriage Act, 25 of 1955, has made sweeping changes of which the vast majority of Hindus are blissfully ignorant…It was suggested, while the Marriage Bill was in the Committee stage, that the provisions as to monogamous marriages should become compulsory when a similar provision would be made applicable to Muslims, who under the Koranic law can have four wives at the same time. But this was brushed aside through fear of antagonizing Muslims…Why the Minister in charge…felt squeamish about [this] is not clear to the present author. It looks like straining at a gnat while swallowing a camel.”

We are now living in a time where forget lawyers, even judges have not as much as heard Kane’s name.

The inescapable conclusion is this: Throughout these seven decades, the Hindu society has been made to cede the defining and vital elements that made up its social organisation through unconsented — even forced legislation whereas the exact opposite has occurred with Muslim personal laws. The latter has only grown more ossified and trenchant owing to the iron grip that the ulema (clergy) exercises on the community, a phenomenon that Arun Shourie has comprehensively documented in his classic The World of Fatwas.

The contrast cannot be starker

While the Hindu legal system was guided and actioned by the profound tenets of Dharma, the Islamic legal system derives its authority from its theology expounded in the Quran and the Hadis. In a “pure” Islamic state, the ruler does not only not derive his authority from the consent of the people but does not need it. He is the upholder of the laws of the Quran revealed to Prophet Muhammad by Allah, and his job is to safeguard Islam in his dominions and to constantly strive for expanding its footprint in lands which Islam has not fully conquered.

The normative and universally recognised rules for deciding justice, fairness, etc, clearly have no place in such a system. Thus, even the briefest survey of the legal aspect of the history of Islamic rule in India shows the other face of the coin.

The aftermath of Muhammad Ghori’s sweeping conquests of large parts of north India set a tragic precedent for Hindus. For the first time, Hindus in these regions got a new, imposed identity, which would continue till the collapse of the Mughal Empire: Zimmi or Dhimmi, a key element in Islamic law. In other words, Hindus were now ruled by the laws of an alien invader. A little-known truth about the celebrated 13th century poet Amir Khusrau is how seriously and literally he took these Islamic legal decrees: “Happy Hindustan, the splendour of the Islamic Religion, where the Quranic Law finds perfect honour and security. The whole country, by means of the sword of our holy warriors, has become like a forest denuded of its thorns by fire. Islam is triumphant, idolatry is subdued. Had not the Law granted exemption from death by the payment of poll-tax, the very name of Hind, root and branch, would have been extinguished.”

The Qazis (judges) in Ala-ud-din Khalji’s regime made even more creative recommendations. His revenue collectors would spit into the mouths of Hindu taxpayers who had to meekly swallow the spittle and not show disgust on their faces. This and a whole gamut of such legal “prescriptions” pretty much set the precedent for “law” in a vast geography that Muslim sultans had lorded over for more than five centuries.

The key takeaway from this contrast is the fact that such Islamic laws were deliberately forced upon non-Muslim citizens in their domain.

A belated bandage

As much as all these are documented realities of our history, on a fundamental plane, these are also various facets of the same phenomenon rooted in Islamic theology and practice. The ongoing hijab row is simply a contemporary variant of this phenomenon. Of forcing the hand of the Indian state to surrender to theology using bullying tactics via street power. A milestone victory would ensue when wearing the hijab will be recognised as a “fundamental right” by the Constitution. It is anybody’s guess as to what will come next.

This among other reasons is why I remarked that Pakistan has long settled the thorny issue of “debates” about things like the Uniform Civil Code by disallowing debate itself.

At this distance in time, it is clear that the UCC — like so many other things — was actively prevented by Nehruvian secularism. It is the classic case of missing the bus, which will perhaps never return because the old road has been permanently sealed. And after deliberately missing the bus so many times, the UCC even if implemented now, will at best be a belated bandage or a last-ditch containment effort because the real battle is already raging elsewhere: Demography and land.

File image of Jawaharlal Nehru. News18 Hindi

Legislation is a dead-letter sans political will and powerless sans enforcement. In our own time, the hijab case might emerge as yet another major litmus test whose outcome might decide the sturdiness of our Constitution, the mettle of our political class and the resilience of the Hindu society.

First part of the series: The planned Udupi hijab spark and the need for Uniform Civil Code

Editor's Note: This series, coming amid the backdrop of the Karnataka hijab row, examines the original debate on the Uniform Civil Code and puts it in its historical context. This is the concluding part of the two-part series.

The author is founder and chief editor, ‘The Dharma Dispatch’. Views expressed are personal.

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How hijab row is a major litmus test whose outcome may decide the sturdiness of Indian Constitution
How hijab row is a major litmus test whose outcome may decide the sturdiness of Indian Constitution
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