The Road Ahead: Exploitative Customs In The Name Of Religion Must Be Ended

The Supreme Court order on maintenance to divorced women gives us an opportunity to reflect on the role of state in regulating religious customs and practices. Section 125 of the CrPC (Section 144 of the new Nagarik Suraksha Sanhita) imposes on any person with sufficient means the duty to maintain his wife (including divorced wife who has not remarried and is not able to maintain herself), his minor children and indigent parents. If they neglect or refuse to maintain them despite having sufficient means, a Magistrate, upon proof of such neglect, may order him to make a monthly allowance for the maintenance of his wife, child or parent.

In the Shah Bano case in 1985 (Mohd Ahmad Khan vs Shah Bano Begum), when the husband claimed that he was not obliged to pay maintenance allowance to his divorced wife because he is governed by Muslim personal law, the Supreme Court rejected the argument. The Court held that Section 125 applies to all religions. The orthodox religious zealots then applied pressure on the Union government to undo the judgment. Rajiv Gandhi yielded to that pressure, and Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. Essentially the law limited the husband’s responsibility to maintain his divorced wife to three lunar months, and to maintain his children for two years after birth.

Many progressive MPs from the Congress party were opposed to the Bill when it was introduced in Parliament. Arif Mohammad Khan (the present Kerala Governor), who was then Minister of State for Home and a rising star in Congress, resigned from the government and sacrificed a promising career in politics. Many eminent Muslim intellectuals appealed to the government to not succumb to the pressure from obscurantist clergy and to protect women’s rights from obsolete religious customs. But the Congress party, afraid of antagonising the orthodox clergy, forced its MPs to vote for the Bill issuing a whip and threatening the members of disqualification if they defied the whip, invoking the provisions of the recently enacted Tenth Schedule (anti-defection law) through the 52nd amendment.

This 1986 law is in effect held inoperative by the Court now, and as a result all women irrespective of religious faith or custom will get the same protection under law. Many enlightened Muslims welcomed the court verdict. In many ways, the 1986 events reshaped Indian political landscape, communalised our politics, and slowed the pace of social reform. Many Indians were outraged at the government’s capitulation to orthodox clergy. In an ill-advised effort to appease the public sentiment, the government got the Babri Masjid gates unlocked, Home Minister Buta Singh was sent to Ayodya for the foundation laying ceremony (Shilanyas) of Ram Temple at Ayodhya, and Rajiv Gandhi launched his 1989 election campaign from Ayodhya. Predictably, if Congress attempts to arouse and profit from religious sentiment among Hindus, BJP, which is avowedly for uniting all Hindus and promoting cultural nationalism, would not be left behind. The rest, as they say, is history.

The question now is to what extent the state should intervene in religious customs. Our national movement, the Constitution, and the practice of the past 77 years provide us a clear road map. As a society and state we all agree that every religion is protected, and people have the right to worship their God or Gods and practice their faith. But freedom of religion cannot extend to illiberal and archaic practices and customs that subjugate other persons or extinguish freedoms of others.

Most Indians are believers in God. Religion throughout history has attempted to regulate human behaviour so that individual freedom and collective good are mutually compatible. God, heaven, hell, sin, after-life, divine judgment and armageddon have been invoked to reward ‘virtuous' behaviour and punish ‘bad’ behaviour. To the extent that: religious practices promote public good and keep us on the straight and narrow path, we should respect religion and spiritualism. But several offensive customs and practices in the name of religion have caused untold suffering to the oppressed and vulnerable sections.

Caste heirarchy by birth, untouchability, the practice of burning a widow on the husband's funeral pyre, child marriage, prohibition of widow remarriage, denial of basic rights to women, harmful customs like genital mutilation, slavery of fellow human beings, sexual exploitation of women in the name of devadasis, treating women as property, unequal rights to women in marriage, divorce, child custody and property matters, denial of reproductive rights to women – these and many other practices and customs are unacceptable in modern society. The last 500 years have seen a relentless march of modernisation world over. The essence of religious faith and right to worship has to be respected, but the heinous, harmful and exploitative customs and practices have to be ended. Religious freedom does not give the right to subjugate or oppress others.

Whatever be the failings of our polity, our parties and legislatures have exhibited impressive unanimity and readiness to modernise our society and end the unsavoury and evil practices in the name of religion and custom. The 1986 law is an aberration, not the norm. We can be justly proud of our remarkable efforts as society and state to put human rights above religious customs. Even now the US and many Western nations are deeply divided on the issue of women's reproductive rights. As early as in 1971 our Parliament unanimously enacted the Medical Termination of Pregnancy Act giving women the right over their bodies and pregnancy. Our society exhibited remarkable maturity and good sense in accepting and embracing such progressive legislations.

Let us respect all faiths, but let us not allow religious faith to be used as an excuse or shield to continue offensive and antediluvian customs and practices that subjugate fellow human beings, exploit them or deny their rights. Our increasing reliance on caste, religion and region for political mobilisation is forcing parties to take untenable positions undermining our march to egalitarianism, prosperity, human dignity and opportunity. This is a good time to pause and reflect, and recalibrate politics.

The author is the founder of Lok Satta movement and Foundation for Democratic Reforms. Email: drjploksatta@gmail.com / Twitter @jp_loksatta

Published on: Monday, July 15, 2024, 06:00 AM IST