BJP's Impossible Agenda

The BJP’s long-running pledges for the abrogation of Article 370, for a Ram temple in Ayodhya, and for a uniform civil code are constitutionally impossible to fulfil, politically divisive and morally outrageous.

ARTICLE 370
The President of India cannot unilaterally revoke his Order of 1954 and remove the curbs which exclude the application of Article 368 to Kashmir; still less can he delete Article 370. The Constituent Assembly whose concurrence was indispensable no longer exists.
Scandalously, by securing the “concurrence” of puppet governments in the State, installed by New Delhi through fraudulent elections, even after the Constituent Assembly was no more, the State’s autonomy was extinguished through orders under Article 370 made with utter illegality by 47 Orders over 40 years from 1954 to 1994. Ninety-four of the 97 entries in the Union List and 260 of the 395 Articles of the Constitution of India were extended to the State in brazen violation of Article 370; Article 370 is now a total wreck. After putting his co-author, the Sheikh, in jail, Prime Minister Jawaharlal Nehru cheerfully gloated in the Lok Sabha on November 27, 1963, that Article 370 “has been eroded”. It was not a natural element to be eroded by the passage of time or the vagaries of the climate. He himself systematically violated it to denude Kashmir of its autonomy. His Home Minister, G.L. Nanda, told the Lok Sabha on December 4, 1964, that Article 370 was “a tunnel” through which more and more provisions of the Indian Constitution could be applied to Kashmir and the Union’s powers increased.
Abrogation of Article 370 is impossible. The BJP’s pledge is a constitutional impossibility. Greater popular awareness since 1994 has blocked the “tunnel”. Now no State government dare give its “concurrence” to the fraud. As Dr Haseeb A. Drabu, a noted economist and former President of the Jammu and Kashmir Bank asked in sheer anguish in an article, “What is there to abrogate?” (Greater Kashmir; April 10, 2014).

That anguish is universally shared in Kashmir. The BJP’s answer to it is not to address that justified sentiment, but to crush it—by asking for the “abrogation” of Article 370. Other political parties oppose this. None, the Congress included, cares to respond to the sentiment. A constitutional impossibility arrogantly proposed by the BJP has as its companion moral blindness and political indifference which is also shared by the rest, including the Congress. Both will receive their just deserts at the hands of the people of Kashmir, sooner than they suspect.

UNIFORM CIVIL CODE

The Sangh Parivar’s old campaign since 1962 for a uniform civil code was inspired by one idea: erase Muslim identity as symbolised in Muslim Personal Law. Union Law Minister G.S. Pathak was specific. Speaking in the Lok Sabha on the subject on May 17, 1966, he said that he appreciated that “personal laws are mixed up with religion” and that “we cannot coerce people to accept our views about their religion and customs”.

The Parivar received encouragement in its campaign by the judgment by Justices Kuldip Singh and R.M. Sahai in Sarla Mudgal vs Union of India (1995) (3 Supreme Court Cases 638). They received their just deserts from the last of the country’s true constitutional lawyers, H.M. Seervai, in an article entitled “Uniform Civil Code: Judiciary Oversteps its Brief” (The Times of India; July 5, 1995).

Since it is hard to come by, nearly two decades after its publication, I make no apologies for quoting it in extenso: “The common question raised by the three petitions was, ‘Is marriage between persons professing the same religion dissolved if one of them becomes a convert to another religion?’ Obviously this question has to be decided under our Constitution and our laws. The decision of this question does not raise any question about a common civil code, and the two judges held likewise and dismissed the petitions.

“Justice Kuldip Singh, however, gratuitously raised the question of a common civil code on the specious ground that the absence of such a code induced Hindu husbands to convert to Islam so that they could marry one or more wives although their wives were alive and had not been divorced, because Mohammedan law permitted a Muslim to marry four wives at a time. He further held that a common civil code did not violate the freedom of religion guaranteed by Articles 25, 26 and 27 of our Constitution. On this point, Justice Sahai dissented and referred to Supreme Court decisions which had held that religion was not merely a matter of faith and belief, but included rituals, ceremonies and prayers in temples, mosques, churches, etc. Justice Kuldip Singh praised Justice Sahai’s ‘concurring’ judgment. But on the question of whether a common civil code would violate freedom of religion, Justice Sahai did not concur. Both judges inadvertently overlooked Article 145(5), which provides that no judgment shall be delivered in the Supreme Court except with the concurrence of a majority of judges hearing the case. Since the two judges differed as aforesaid, they could deliver no judgment at all on the point whether a common code did or did not violate the freedom of religion....

“It becomes necessary to say this because of the following amazing order passed by Justice Kuldip Singh and concurred in by Justice Sahai. ‘We, therefore, request 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 endeavour to secure for the citizens a uniform civil code throughout the territory of India’…

“Since the order is based on the supposed ‘mandate’ of Article 44, it is necessary to set out Articles 37 and 44: Article 37: ‘Application of the principles contained in this Part (on Directive Principles of state policy). The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.’ Article 44: ‘The State shall be the duty of the state to apply these principles in making laws.’ Article 44: ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’

“The Supreme court cannot enforce the mandate of Article 44; consequently the aforesaid order is null and void. It is not the judiciary but the executive which can consider what law should be submitted to Parliament and it is the latter which alone can decide whether or not to enact a proposed law. Those who have studied Hindu law and Mohammedan law will realise that a common civil code for Hindus and Muslims alike is an impossibility.”

http://www.frontline.in/the-nation/impossible-agenda/article6097233.ece

Just because something became a part of the Constitution, originally or later, does not mean  it has / had a sound logical and sensible basis and can't be overturned afterwards years later. Read the following below (in italics), as an example.

Consider for example the Indian constitutional Amendment 42 (April 1, 1977), passed during internal emergency by Indira Gandhi, which provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a "Socialist Secular" Republic, in spite of several religion based legal systems officially in use in the country.
(Ref.: http://creative.sulekha.com/misunderstanding-about-secularism-in-india_595225_blog)

What India needs is the constitution of a new consituent assemble elected by the PEOPLE. This assembly should write a constitution and then it should be ratified by the PEOPLE. Any provision not accepted by a majority in each state should be removed.

Seva Lamberdar wrote:Just because something became a part of the Constitution, originally or later, does not mean  it has / had a sound logical and sensible basis and can't be overturned afterwards years later. Read the following below (in italics), as an example.

Consider for example the Indian constitutional Amendment 42 (April 1, 1977), passed during internal emergency by Indira Gandhi, which provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a "Socialist Secular" Republic, in spite of several religion based legal systems officially in use in the country.
(Ref.: http://creative.sulekha.com/misunderstanding-about-secularism-in-india_595225_blog)

-> Here is rest of the text from frontline's article

“The Supreme court cannot enforce the mandate of Article 44; consequently the aforesaid order is null and void. It is not the judiciary but the executive which can consider what law should be submitted to Parliament and it is the latter which alone can decide whether or not to enact a proposed law. Those who have studied Hindu law and Mohammedan law will realise that a common civil code for Hindus and Muslims alike is an impossibility.”

The real issue is reform of an un-Islamic Muslim Personal Law, imposed by the British on the basis of texts of dubious quality, so that it accords with Sharia, Islamic Law, which fully recognises the rights of women; for example to unilateral divorce by the wife at her will and to stipulate at the time of the marriage that she will be entitled to a divorce if the husband were to marry again. It is foolish to expect that bogus body of dinosaurs which styles itself as Muslim Personal Law Board to move in this direction. The BJP’s demand only drives the Muslim back into his own shell. What one of the last of India’s great editors, S. Mulgaokar, said in his Convocation Address at the Jamia Millia Islamia, New Delhi, on October 29, 1966, is as relevant now as it was then: “It is not as a champion of the minorities, for which role I have no credentials, but as a citizen concerned with hastening the pace of progress that I ask whether we can go forward at all with nearly a tenth of the population withholding from the national life the full contribution of which they are capable. Hindu obscurantism currently shows signs of striking more aggressive postures to which the [Congress]government is responding with appeasement. I do not say there is no obscurantism among the minorities. I am only concerned to point out that the more we give legislative sanction to Hindu obscurantism, the more the minorities will withdraw into the protective shell of their own obscurantism and a thicker encrustation of backwardness will overlay our national life. We shall be condemned to the arid, negative secularism of the statute books in place of the fullness and variety of true, human brotherhood.”

The one sure way to discourage Muslim exclusiveness is, surely, to strive for redress of their genuine grievances. But let alone the ruling party of the day, even the opposition parties are slow to do this, anxious as they are desperately to gain adherents.

The Personal Law of Muslims in a secular set-up, thus, needs reform, but not abrogation by a uniform civil code. Urgently needed reform, however, is only an aspect of the entire problem of the place and role of Muslims in India today. The Muslim and the non-Muslim secularist can together help in assuring a place and role for a community so backward and timid yet potentially so capable of imparting meaning and strength to one of the most challenging experiments in equality history has ever witnessed.

The BJP’s tears for the lot of Muslim women would have been more impressive if it had exerted itself, even slightly, to ensure that their husbands, brothers and sons are not killed by its goons in pogroms with impunity.

confuzzled dude wrote:

Seva Lamberdar wrote:Just because something became a part of the Constitution, originally or later, does not mean  it has / had a sound logical and sensible basis and can't be overturned afterwards years later. Read the following below (in italics), as an example.

Consider for example the Indian constitutional Amendment 42 (April 1, 1977), passed during internal emergency by Indira Gandhi, which provides for curtailment of fundamental rights, imposes fundamental duties and changes to the basic structure of the constitution by making India a "Socialist Secular" Republic, in spite of several religion based legal systems officially in use in the country.
(Ref.: http://creative.sulekha.com/misunderstanding-about-secularism-in-india_595225_blog)

-> Here is rest of the text from frontline's article

“The Supreme court cannot enforce the mandate of Article 44; consequently the aforesaid order is null and void. It is not the judiciary but the executive which can consider what law should be submitted to Parliament and it is the latter which alone can decide whether or not to enact a proposed law. Those who have studied Hindu law and Mohammedan law will realise that a common civil code for Hindus and Muslims alike is an impossibility.”

The real issue is reform of an un-Islamic Muslim Personal Law, imposed by the British on the basis of texts of dubious quality, so that it accords with Sharia, Islamic Law, which fully recognises the rights of women;

Read the following article carefully,
http://creative.sulekha.com/misunderstanding-about-secularism-in-india_595225_blog

The problem is that India can't have it both ways, claiming to be a secular country and having the religious laws officially in use at the same time.

Perhaps it is time now (after the recent elections) for Muslims (Rushdie, Mahesh Bhat et al.) and non-Muslims (Amrtya Sen, Max and others) to start a campaign to have the word "secular" removed from the Constitution in relation to India while that country continues to allow its citizens to live officially under and according to the religious laws.