Leave the holy books alone

The Law Commission's opinion on Islam and bigamy is well intentioned, but it's really a double-edged sword. For two reasons. First, it is not appropriate for a non-religious body to quote the scriptures to justify a stand it wants to take for reasons of gender equity and justice.

Second, once a religious justification is used to promote a cause — monogamy in this case — what is to stop narrow-minded loonies from quoting the same books for whatever mayhem they have in mind? If the courts and law agencies start using religious justifications for secular causes, how can they uphold the Constitution?

There is no need to go down that slippery slope. A secular state should be making laws on the basis of what its legislators think is good for the people and not because some revered tome said so, or didn't. This point is crucial because the scriptures are often self-contradictory and/or unclear on the importance they assign to various injunctions to the faithful. Even when they are clear, a lot depends on how ordinary courts are going to ensure compliance with their intent.

Take the bigamy issue and the Koran. The Law Commission made this gratuitous remark in its 227th report to the government: "We fully agree with the fact that traditional understanding of Muslim law on bigamy is gravely faulty and conflicts with true Islamic law in letter and spirit." According to Tahir Mahmood, a member of the commission, the prophet's intention was to restrict rampant bigamy in the Arab society he was living in. Bigamy is allowed under the Koran only if a man can treat all wives equally, which is practically impossible.

Even if one agrees with this interpretation, there are several issues with this kind of observation. Nobody asked the commission for its views on Koranic laws. Secondly, even if the Koran does not permit bigamy according to a new, liberal interpretation, who will decide whether spouses have been treated equally? The man? Or one of his wives? Or a court of law?

In practice, therefore, it makes little sense to look to the Koran — or any holy book — for an answer, since the book cannot decide on someone's real intent. Arms of the state should not make references to holy books for approval or disapproval. A good Muslim like Tahir Mahmood should not drag the Koran into earthly controversies.

Our own courts, including the Supreme Court, have often fallen into the same trap of quoting from the holy books of various communities while dealing with sensitive cases involving them. In the Shah Bano verdict, the Supreme Court upheld a Muslim woman's right to maintenance under secular provisions of the law (section 125 of the Code of Criminal Procedure, which enables courts to force husbands with sufficient means to support destitute wives). But, in its wisdom, the court could not stop itself from quoting the Koran to justify its decision in favour of Shah Bano. Once it used the book to justify a secular law, it took the politicians little time to force Rajiv Gandhi to give the book primacy over the law of the land.

Sooner or later, we are going to have to grapple with the need for a uniform civil code, but there are several intermediate pathways that will help us avoid needless communal polarisation. First, there is no need to change any law or challenge anyone's right to more than one marriage on the basis of what the scriptures say. In fact, if we approach the entire issue from the point of view of the individual's right to choose, there is no need to oppose bigamy through changes in the law either.

The law comes into the picture only if one of the spouses opposes the idea and brings a complaint against the bigamist. Individuals who voluntarily enter into multi-partner arrangements are well within their rights to do so — as long as all partners have the same rights. If Muslims — or, for that matter, individuals from any other community — choose to settle marital disputes within the community, there will be no conflict with personal laws.

Private individuals can choose how they want to settle disputes. The conflicts, if any, will relate to cases where an individual chooses to demand his/her rights on the basis of constitutionally guaranteed rights rather than kowtow to personal laws. Here, the courts have to be firm, and not slide back into quoting the holy books. The rights of minorities are based on the rights of the individual, and community laws cannot trump the rights of individuals. There is, after all, no minority smaller than one.

There will come a time when all communities will be ready for a shift to a uniform civil code, but in the meanwhile, courts and law commissions can avoid fuelling the fire of communalism by quoting the scriptures. It's none of their business.