A New ‘Proactive’ Indian Foreign Policy under Modi?

Eight years ago, the late K. Subrahmanyam, one of India’s leading strategic thinkers, began one of his many book chapters with a quote from George W. Bush on the U.S.-India nuclear deal at a press briefing in March 2006. “What this agreement says is things change, times change, that leadership can make a difference,” Bush said at the time.

Even if most of us accept Bush’s general premise, few – perhaps even Subrahmanyam himself – could have foreseen the burst of activity and pace of change in Indian foreign policy that Prime Minister Narendra Modi has ushered since his election last year.

Modi has now visited over 20 countries in an official capacity, unprecedented for any Indian prime minister in so short a time. Apart from the miles he has clocked, the inroads he has made thus far have also been impressive – from revitalizing India’s ties with smaller states in its immediate neighborhood to engaging the world’s major powers (See: “What’s Next for US-India Defense Ties with Obama’s Trip?”). A land boundary agreement with Bangladesh, an energized U.S.-India relationship, and rescue and post-disaster operations in Yemen and Nepal respectively are just some of the initiatives that have that we have seen thus far.

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Yet even as these developments have been afoot, experts have been debating exactly how much continuity and change there is in Modi’s foreign policy relative to his predecessors. The topic recently took center stage at the launch of a new book by C Raja Mohan – one of India’s most internationally recognized strategic thinkers – at the Observer Research Foundation in New Delhi.

During the event, Indian Foreign Secretary S. Jaishankar, Subrahmanyam’s son and a close friend of Raja Mohan, made arguably the clearest and most concise case that the Modi government was pursuing a new ‘proactive’ foreign policy (See: “India Needs a More Ambitious Foreign Policy, Says Country’s Top Diplomat“). In terms of content, Jaishankar noted that, among other things, a reasonable but at times firm neighborhood first policy, the forward momentum on the nuclear deal with the United States, and a coherent Indian Ocean strategy now in the works were all examples of changes from the previous government led by Manmohan Singh.

“So let me ask you: does this look like diplomacy as usual?” Jaishankar said.

To some, Indian foreign policy under Modi does indeed look a little more familiar than the picture Jaishankar painted. Indeed, before Jaishankar spoke, Shashi Tharoor, currently chairman of the Parliamentary Standing Committee on External Affairs and a member of parliament with the opposing Congress Party, noted that several of the initiatives under the Modi government were ones that Congress had earlier pushed when it had power but the BJP had thwarted. These included the land boundary agreement and the nuclear deal.

Of course, this dynamic is an all-too-familiar one hardly limited to just Indian politics. And indeed, Jaishankar himself, to his credit, conceded that while some of these were new developments, others were “decisive conclusions to an otherwise unfinished national agenda.”

But beyond the content of Indian foreign policy, Jaishankar seemed to suggest that the bigger shifts were in how India was conducting itself on the world stage and the tools of statecraft it was using in this process. In terms of conduct, Jaishankar seemed to suggest that India’s added confidence and larger footprint was indicative of a new proactive foreign policy in the works focused on actively shaping and driving events as opposed to just reacting to them; on being active and nimble rather than neutral and risk-averse.

What exactly is this proactive foreign policy? Though he did not explicitly define it, he said it was based on a clear sense of its priorities, an integrated view of regions, and a more vigorous effort directed at confidently pursuing multiple relationships simultaneously and making a global impact. This was in contrast to a more reactive approach which sought a lower profile and adopted a more siloed approach, often associated with the country’s tradition of non-alignment.

Jaishankar then went on to a more detailed list of five “innovations” in the way India was using the tools of statecraft to further this proactive foreign policy – narratives; lexicon and imagery; soft power; the Indian diaspora; and the link between foreign policy and national development. First, the Modi government was developing a narrative as part of a transition to making India a leading power. For instance, Jaishankar said, attention to India’s sacrifices in WWI, or its record in peacekeeping operations, strengthens its position for a permanent seat in the UN Security Council.

Second, the creation of a new lexicon and imagery – whether it is from a “Look East” to “Act East” policy or the image of a “first responder” in humanitarian assistance and disaster relief –  has been critical in signaling and driving foreign policy change (See: “Modi Unveils India’s Act East Policy to ASEAN in Myanmar”). Third, the Modi government has emphasized the use of soft power in Indian foreign policy, as evidenced by the International Day of Yoga and its links with the country’s culture and heritage.

The fourth “innovation” is related to the Indian diaspora. While their achievements have long been broadly appreciated, the Modi government has been more direct thus far in engaging with overseas Indians, as evidenced by the turnout at Madison Square Garden during his visit to the United States earlier this year. Fifth and finally, there has also been a more explicit link made between diplomacy and national development efforts, with India working hard to leverage its international relationships to bring resources, technology and best practices to further its own development such as through the Make in India initiative.

Here too, one can quibble with how innovative each of these individual points is. For instance, Modi is far from the first Indian premier to speak about the link between foreign policy and economic development. But taken together and seen as part of Modi’s overall foreign policy approach, once can indeed see the outlines of something quite new as Jaishankar suggested.

Of course, this is not to suggest that Indian foreign policy under Modi has not encountered its fair share of challenges thus far in Modi’s first year. On some fronts, New Delhi has been a little too ‘proactive,’ as with its unilateral incursion into Myanmar in a cross-border raid (See: “The Truth About India’s Militant Strike in Myanmar”). India’s Pakistan policy has also at times seemed more rudderless than resolute. Though the Modi government is hardly the only one to struggle with India-Pakistan relations, that also dents the case for change and the advent of a reasonable but firm neighborhood first policy.

Challenges could also lie ahead, especially since this is just Modi’s second year in office. Shyam Saran, India’s respected former foreign secretary, said that while he saw promise in Modi’s active foreign policy, he was also worried about the capacity of the Indian government to implement the many commitments it had made. “We need to really put the accent now on the nuts and bolts of how to get foreign policy actually implemented,” he said.

The Court Fails the Citizen - Sedition Issue 18/9/16

The Supreme Court order dismissing Common Cause’s writ petition seeking directions against the misuse of Section 124A of the Indian Penal Code, 1860 is a monumental abdication of the judicial function. In choosing to summarily dismiss the concerns raised by the petitioner over the abuse of the sedition law, the Court has shut its eyes and ears to the events that are taking place just outside its gates. It has chosen to continue to live in a make-believe world where a precedent laid down in 1962 interpreting the sedition law continues to be understood andapplied by the police in good faith, with no pressure from the state or central governments. The honourable judges seem to be in a fantasy land where dissent faces no retribution in the form of abuse of process by a vengeful government.

Whether it is the first information reports (FIRs) againstprotestors at Koodankulam or the recent complaints against Kanhaiya Kumar or Amnesty Inter­national, Section 124A has been used by governments of all shades to stifle dissent. The relatively small number of cases should not hide the intention of the government—to have a chilling effect on dissenting speech. Save for rare cases, an FIR almost inevitably follows the complaint, the criminal justice system proceeds to grind down the accused, who no matter how obviously innocent, is forced todefend herself and run from court to police station to clear her name. Even when a court ultimately finds that the complaint and the FIR were entirely frivolous, there is no remedy or compensation offered to the exonerated for the blatantly illegal acts unless she wants to once again run from court to court seeking compensation. The simple relief claimed by Common Cause, and refused by the Supreme Court, was for a judicially created oversight mechanism to prevent such straightforward abuse of process.

On its own, the order of the Supreme Court seems perplexing. However, seen in the context of recent decisions, it is indicative of the Supreme Court’s views. In the last two years alone, the Court has upheld the constitutional validity of criminal defamation laws by placing the right to reputation above the right to free speech, has invented a new ground not found in the Constitution for restricting freedom of speech (defamation of famous personalities), taken up public interest litigation on regulating jokes against the Sikh community and is considering how to impose a ban on pornography in a manner beyond the existing law.

Far from carrying out its constitutional duty of protecting fundamental rights, the Court seems to think its role is to find new ways to restrict this right, get into freewheeling and absurd litigation by busybodies to help restrict others’ rights and take the side of the government as well as the rich and the powerful who want to curb the right to free expression of views. Increasingly, its path-breaking decision in the Shreya Singhal v Union of India case, in which the Court struck down Section 66A of the Information Technology Act, 2000 declaring it unconstitutional, seems like an outlier. Apart from giving full effect to the right to free expression under the Constitution, the Shreya Singhal judgment was also willing to take into account the actual, real world impact of a law in curtailing freedom of speech. Unfortunately, the Court has repeatedly rejected this enlightened approach. Indeed, there is not a single case in the last two years where the Court has cited the Shreya Singhal judgment with approval.

If this presents a bleak picture of the Court’s antipathy to the freedom of speech in India, it is entirely intentional. The coverage of the Supreme Court by the mainstream media has also played a role in arriving at this situation with its focus on casual and stray observations made from the bench, and the routine hearing and disposal of cases involving politicians and celebrities. This has not allowed for a proper critique of the Supreme Court as an institution, its ideology, and its manner of functioning save for the tired tropes of judicial activism that are trotted out whenever a controversial judgment is delivered without ever adding insight into what the Court should or should not be doing.

The recent trend in the apex court’s jurisprudence in the context of freedom of expression suggests a court that is increasingly out of touch with reality on the threats to free speech in India. Whether it is in the context of abuse of criminal defamation laws or sedition laws, the Supreme Court has been happy to hand out homilies from the bench while keeping in place the structure that allows for the abuse of these laws. As an institution that has been given the constitutional duty to defend citizens’ rights against encroachment by the state, if the Supreme Court’s claims to independence and autonomy from the government are to be taken seriously, it must show that such independence and autonomy is for the benefit of the people at large and not for its own institutional ends.

Summit over substance 18/9/16

Forthcoming summits will reflect India’s status as a key player both regionally and internationally. But unless we move from an event-oriented to a process-driven diplomacy, this will only be a transient gain

Barely six weeks after participating in the G-20 summit at Hangzhou, China, and the East Asia and ASEAN-India summits at Vientiane, Laos, Prime Minister Narendra Modi will himself play host to the annual BRICS SUMMIT in Goa on October 15-16, 2016. This will bring together the heads of state of Brazil, Russia, India, China and South Africa, and the summit theme put forward by India is “Building Responsive, Inclusive and Collective Solutions”, which is a clever play on the letters constituting the membership of the grouping. India has also exercised its privilege as host to arrange a regional outreach.

At the Fortaleza summit in 2014, Brazil had invited several heads of state/government from Latin America, while at Ufa last year Russia had invited the leaders of the Eurasian Economic Union and the Shanghai Cooperation Organisation. One would have expected India to have invited SAARC leaders to the outreach but it has chosen to host the leaders of the seven-member BIMSTEC (Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation) instead. BIMSTEC is a potential Bay of Bengal Economic Community comprising Bhutan, Bangladesh, India, Nepal and Sri Lanka from South Asia and Myanmar and Thailand from ASEAN. The motivation is obvious, to avoid having to invite Pakistan. BIMSTEC will also hold its fourth summit in Goa. Nepal was to have hosted it in 2015 but was unable to do so mainly on account of the earthquake and the subsequent political turmoil. Not much should be expected from the BIMSTEC summit. It has been as somnolent as SAARC has been since its inception.

The China-Russia dynamic

There will be greater focus on the BRICS summit mainly because of the stature of those who will be attending, including President Vladimir Putin of Russia and President Xi Jinping of China. Both have a shared image of being tough leaders, of having defied the U.S. and the West, and now edging closer to a closer security partnership, if not an alliance. The largest ever Sino-Russian joint naval exercises are being held in the South China Sea off the coast of Guangdong province. And Russia is the only country to have explicitly supported China’s stand on the South China Sea dispute, of rejecting the international tribunal award and proposing bilateral dialogue with claimant countries, though it has not endorsed its territorial claims.

There will be a Chinese effort to include in the summit declaration a formulation similar to what had been agreed upon in the India-Russia-China trilateral Foreign Ministers’ meeting in Moscow in April this year and which appeared to support China’s stand: “Russia, India and China are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.”

This was before the tribunal award. Now having a formulation along these lines in the BRICS declaration, post the award, would be of even greater value to China, which will undoubtedly press for it with Russian support. Indian negotiators will probably resist. Already after the Moscow meeting there had been criticism that India was speaking with two voices, one when in the company of Americans and the other when meeting with the Chinese and Russians. Furthermore, given Chinese opposition to India’s membership of the Nuclear Suppliers Group (NSG) and its blocking at the UN of naming the Pakistani Jaish-e-Mohammed chief Masood Azhar as a terrorist, it is likely that India may dig in on this point. We shall wait and see.

A triangular game

The other two leaders, Brazil’s Michel Temer and South Africa’s Jacob Zuma, are unlikely to come up with any notable initiatives. Their countries are suffering from both political and economic turmoil. Mr. Temer has taken over after a politically polarising impeachment of the former Brazilian president, Dilma Rousseff. Mr. Zuma is facing serious charges of corruption, and there has been unprecedented infighting in his ruling African National Congress. So it will be mostly a triangular game among Mr. Modi, Mr. Putin and Mr. Xi, and the latter two seem to be leaning closer to each other. This will be a challenge for the Indian host.

For Mr. Modi, a strong and categorical statement on counter-terrorism will be a must even though neither China and now nor Russia will countenance the naming of Pakistan or even an oblique reference to it. Brazil and South Africa do not have much play in this game. So expect a strong formulation but more general in scope.

BRICS has begun to suffer the affliction characteristic of several other multi-country groupings, and that is the exponential expansion in its committees, working groups and forums resulting in a extraordinarily crowded calendar of meetings. There are now over a hundred such bodies covering a multiplicity of subjects ranging from trade, investment and finance, to health, education and security. India itself has been hosting several tens of these meetings during the year in its capacity as incoming chair, but it is questionable whether such hyper activity leads to substantive outcomes. The impression one has is of being stretched too thin across a steadily expanding space with neither the human nor the financial resources to follow through. The event itself then becomes the focus and not the process. It is no surprise then that outcomes from such summitry are sparse.

BRICS has one practical outcome to its credit, and that is the New Development Bank, and an Indian, K.V. Kamath, is its president. The Bank has been operationalised and India has reportedly received loans totalling about $300 million. But this institution is overshadowed by the much better funded Asian Infrastructure Investment Bank (AIIB) initiated and led by the Chinese. The Contingent Reserve Arrangement (CRA), another important BRICS initiative, remains on paper. There is a proposal for the setting up of a BRICS Credit Rating Agency to challenge the monopoly of the West, and this might be of value if adopted. On the trade side any hint of a BRICS free trade agreement comes up against the fears both India and Russia have of being swamped by Chinese imports. It will not have traction even though none of the five countries are part of any of the emerging mega trade blocs like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). At a time when both TPP and TTIP are stalled, even a hint of a mega trade bloc of the key emerging economies would be a major development. It could even bring the World Trade Organisation back in play!

The BIMSTEC summit could be an important occasion for reviving what, on the face of it, appears to be a grouping with immense potential. Its attraction is that China is not there to crowd India out, and it fits in very well with the logic of India’s Act East policy. The parallel Mekong-Ganga Cooperation (MGC), which is a platform for India’s exclusive engagement with the countries of Indo-China (Thailand, Laos, Cambodia and Vietnam) and Myanmar, could also be a major component of the Act East strategy. But neither BIMSTEC nor the MGC have lived up to their potential, and India’s engagement with them has been mostly episodic and ad hoc. There are sets of activities under both but they do not add up to a well-thought-out and long-term strategy of integrating India more closely with its eastern neighbourhood. The perception remains that India continues to be at the margins of this increasingly contested geopolitical space, unable to play a significant role in shaping its emerging economic and security architecture.

Trailing on connectivity

There is little doubt that connectivity will have to be the key theme at the BIMSTEC summit but here, too, is an Indian dilemma. The connectivity platform also opens the door to China selling its ambitious One Belt, One Road initiative among the members of this grouping. India’s own resources are limited, but more than that its record of delivery on commitments continues to be abysmal. There are occasions when one finds the same projects reappearing as “fresh initiatives” in serial joint statements over recent years. Our capacities and institutions continue to lag behind our ambitions.

There is no doubt that the forthcoming summits will be major events and will reflect India’s status as a key player in the region and as a globally significant player. But that will only be a transient gain unless we begin to pay attention to the much less glamorous and more nuts-and-bolts effort to use events as key markers in a well-conceived and systematic process of expanding our strategic space, leveraging our strengths and remedying our vulnerabilities. It is time to move from an event-oriented to a process-driven approach.

Muslim Women's Rights in India 18/9/16

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 codification 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 codification of personal law.

Several laws have been enacted to address the concerns of Muslim women in India dealing primarily with issues like marriage, divorce, maintenance and inheritance. But at the community or societal level, these laws do not help them much in seeking justice. The laws that are framed exclusively for Muslim 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 codified 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 objective was to govern the Muslim community by a unified 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 relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision 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 endowments) 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 claiming their share of inheritance or to initiate 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 debarred from succeeding to the same. If Shariat law is applied they will automatically be entitled 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 heterogeneous Muslim community under one shariat or Islamic law. The Shariat Act only states that Muslims will be governed by their Muslim personal law but it does not specify the content of this law and is therefore open to varying interpretations. 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 codified laws (Kazi 1999). Although the provisions of the Shariat Act attempted to further the interests of Muslim women, in the absence of a single law, Muslim women are dependent and are affected by the different interpretations of the shariat.

Moreover, the “cultural diversity among Muslims—including attitudes, habits, languages and traditions—and a non-uniform diffusion of Islam over the centuries has resulted in a variety of Muslim laws and customary practices within Muslim communities in India” (Kazi 1999: 4). Subcommunities like the Kutchi Memons, Khojas, Bohras and Molesalam Girasias have accepted Islam but continue to have their own separate sets of customary law because 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 parwarda, dukhtar-i khananashin, dukhtar berun-i khana, agnatic succession and exclusion of females from inheritance—each of which has no place in the traditional Islamic law and conflicts 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 objective of the act was:

to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation 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 maintain 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 certificate of baptism and ipso facto the marriage 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 entitled 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 jurisprudence. In response to his opinion, a bill was introduced in the central legislative assembly in 1936, which was passed and enacted in 1939 (Hussain 2015).

This particular legislation has five sections. 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 marital 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 disease, 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 divorce issue and lacks clarity on other matters like maintenance of the woman after divorce, custody of children, etc. For that a woman needs to file 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: first, the personal law applicable to the community 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 divorced Muslim woman is liable for the maintenance till the period of iddat, that is, for three months following the divorce. In addition, she also receives the amount of mehr (dower) fixed at the time of marriage. Other than this, the husband has no other financial 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 maintenance 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 dismissed his appeal and upheld the maintenance 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 Divorce) Act, 1986. The act aims to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto (Act No XXV of 1986).

However, the enactment of the Muslim Women’s Act made the condition of Muslim women more miserable and provided 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 maintenance 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 relatives. According to Section 4(2) of the act, if the divorced woman has no relatives 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 “difficult to ascertain whether or not the Wakf Boards will be able to take on the responsibility of giving adequate maintenance to destitute divorcees, 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 safeguard their interest.

Codification of Personal Law

Muslim personal law has not been subjected 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 codification and, Muslims take the codification as the first 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 thinking 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 postcolonial 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 codification 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 codification of Muslim family law. The organisation released a draft titled “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 Commission and other stakeholders. In 2015, the co-founders of BMMA, Noorjehan Safia Niaz and Zakia Soman wrote a letter to Prime Minister Narendra Modi asking for codification of the personal law as per the draft prepared by them. In the letter they stated, “Certain orthodox and patriarchal males have dominated the debate on rights of Muslim women and have stonewalled any attempt 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 Application 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 codified personal law is seen as the first 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 codified 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 significant changes in the lives of Muslim women, the codification of the Muslim Personal Law based on the Islamic framework would give women more rights as guaranteed by the Quran and hadiths.

Questions for the day 17/9/16

1. How do Feminists Perceive Nationalism ? How Relevant is Feminism in Third World Countries

2 Discuss the characteristics of sovereignty as advocated by Austin. Do you think that world economy, international organisations and international law have really affected state sovereignty?

3.Enumerate the main features of Machiavelli's thoughts on politics and forms of government ?

The European Union and Britain: The End of the Road 17/9/16

“Economically, the effects are still being felt. Britain, after all, has voted to leave the world’s biggest trade bloc. The pound fell to a 31-year low against the US dollar and there is growing uncertainty about the future relationship between Britain and the EU’s internal market. The reasons behind the decision to leave are varied and complex. Clearly, sovereignty played a role with English voters in particular keen to claw back many of the powers London has handed to Brussels over the last 43 years of membership.” 


The result was a political earthquake and the aftershocks are still being felt. Britain’s decision to leave the European Union after 43 years of membership took many by surprise but for those of us who have studied closely that relationship, the outcome was somewhat inevitable. This article seeks to not only historicise the referendum result but also, and perhaps more importantly, to explore the road ahead for the United Kingdom as it seeks to navigate a new path outside the world’s largest trade bloc. The key questions that are focused on here include: Why did Britain vote to leave? What now for domestic British politics and the future of the UK? What kind of new relationship is likely to emerge between London and the remaining 27 EU member states? And what impact, if any, will the decision have on Britain’s global role and ambitions?

More than any other European country, Britain has had the most turbulent relationship with the process of European integration that emerged after the Second World War. Even though Winston Churchill, as leader of the opposition, argued for a ‘United States of Europe’ in his oft-quoted University of Zurich speech in 1946, there was very little appetite within the British government to be part of that process. Britain, at the end of the war, still maintained a sizeable empire, albeit one that was crumbling and it identified itself as part of the winning side. Simply handing over sovereignty from the British parliament to some unelected supranational institution on the Continent was never politically fashionable.

As France and West Germany moved closer and closer towards reconciliation in the form of the European Coal and Steel Community in 1950 and later the European Economic Community in 1957, the predecessor to today’s European Union, Britain remained out the outside looking in. It was not until Harold Macmillan, Conservative Prime Minister finally accepted in his 1960 ‘Wind Of Change’ speech in South Africa that the British government had finally accepted that the days of empire were over and a new world role was needed. By then, London had a permanent seat on the UN Security Council. Yet, it was John F. Kennedy, US President and close ally of Macmillan, who encouraged the prime minister to move closer to the Europeans. Kennedy and others in his Administration were not enamoured at the prospect of a French-led EEC under the leadership of Charles de Gaulle. Reluctantly, in July 1961, Britain applied to join the Community, the first of two applications with each one in turn rejected by de Gaulle. The French vetoes of the 1961 and 1967 British applications left a bitter aftertaste. The French president accused London of ‘deep-seated hostility’ towards the European project and argued that the ‘Common Market is incompatible with the economy, as it now stands, of Britain.’

De Gaulle’s resignation as president in 1969 saw a change in Britain’s European fortunes. The second application was reactivated in 1970 and after 18 months of negotiations, Britain, along with Ireland and Denmark, entered the EEC on 1st January, 1973. The first enlargement should have been a period of optimism after a decade of failure. Yet, the oil shocks of the 1970s and Western economic stagnation that followed meant that many of the economic promises linked to membership were not realised.

Additionally, Harold Wilson, leader of the opposition Labour Party, made clear that if his party won the 1974 British general election, he would not only renegotiate the accession deal but he would put that new deal to a referendum which he did, in 1975. Wilson’s party, like the Conservatives in more recent decades, remained hopelessly split on the Europe question, and seven of Wilson's cabinet colleagues openly pushed for a Brexit. Although Britain's original nationwide referendum on EEC membership ended with a comfortable ‘yes’ vote in June 1975, it came only after Wilson negotiated generous additional monetary payments from Brussels through the Community’s regional policy. So, while Britain avoided an annulment of its recent new partnership with Europe and Home Secretary Roy Jenkins claimed that the result ‘puts the uncertainty behind us’, his words rang hollow even at the time. Even though Britain voted to remain in the EEC, the erratic nature of London’s European policy did not end there. On the contrary, every British prime minister after Wilson took aim at the nature and direction of the European project.

Britain’s relationship with its European partners deteriorated further when Margaret Thatcher entered Number 10 Downing Street in 1979. Thatcher was determined to confront what she viewed as the excesses associated with Britain’s annual contribution to the Community’s budget and EEC spending. After years of bickering with other European leaders, including German chancellor Helmut Kohl and French president François Mitterrand, Britain secured a permanent budgetary rebate at the 1984 European Council summit. Nonetheless, Thatcher continued to clash with European Commission President Jacques Delors throughout the 1980s over his attempts to advance European integration at the expense of national sovereignty. Fears from within even Tory ranks that Thatcher had overreached with her famous ‘No, No, No’ speech to Europe contributed significantly to her downfall in November 1990.

Her successor, John Major, had an equally troubled relationship with Europe, especially after the Maastricht Treaty entered into force in 1993. With recent, raw memories of the painful 1992 ‘Black Wednesday’ sterling crisis that led to British withdrawal from the European Exchange Rate Mechanism, Major had little appetite for further economic and monetary union, and the increasingly Eurosceptic Tory backbenches had even less. So, when Tony Blair swept to power later that decade, it was no surprise that then- chancellor Gordon Brown ratified Major's original decision, establishing five ‘tests’ in order to give up the British pound — tests that almost certainly would not be met. Brown betrayed his diffidence regarding the single currency with his first major policy as chancellor — delivering monetary independence to the Bank of England, a move that announced that he did not foresee Britain transferring UK monetary policy to the European Central Bank anytime soon. Britain would not become part of any fiscal union with the European. The two-tier Europe that was already emerging in the 1990s became an enshrined reality by the early 2000s, through enhanced cooperation, variable geometry or differentiated integration among the member states, by which time Britain had not only opted out of Eurozone membership and scoffed at a unified European foreign policy, but had also rejected the Schengen Agreement on the removal of border controls with the rest of the European Union.

Having spent decades with Britain labelled as the ‘reluctant European’, British ministers sat uncomfortably around the EU table as an increasing number of decisions have been taken by qualified majority voting, leaving British diplomats with less leverage in Brussels than ever and making it impossible to slow down or veto EU initiatives. When David Cameron vetoed the amendment of existing EU treaties to tighten the largely toothless revision of the Stability and Growth Pact that German Chancellor Angela Merkel championed at the end of 2011, Merkel affected an end-run by negotiating a ‘fiscal compact’ that every other EU member signed, except Britain and the Czech Republic. Though Cameron's move marked the first time that Britain vetoed a European treaty outright, it hardly felt like a watershed moment in British-EU relations. Instead, it was just another example of the increasingly familiar British opt out. Deeper political, fiscal and banking integration, even in an effort to save the Euro and forestall a financial crisis that could leave Britain in an even deeper recession, was always going to spook Cameron’s Tory backbenchers. After having avoided the straitjacket of a one-size- fits-all monetary policy, no British prime minister could reasonably renounce sovereignty over fiscal policy as well.

It is not unfair to ask, as many of us, including K.A. Lees and I have in number opinion pieces published over the last three years, if Britain has not been ‘leaving’ Europe in slow motion all along? For example - limited initial British appetite for a federal Europe; Wilson's 1975 referendum feint; Thatcher's budget rebate; Major's refusal to sign up to the Schengen Area; Brown's convoluted rejection of the Euro; Blair's rupture over the U.S. invasion of Iraq and Cameron's veto of the EU’s fiscal compact.

The decision on 23rd June to leave the European Union should, therefore, not some as such a shock. But despite the lessons that history can teach us about the origins and development of Britain’s European relationship since the end of the Second World War, the most pressing question is what happens next? After the political and economic earthquake, the referendum aftershocks are still being felt. On the political side, David Cameron has resigned as prime minister and the race has been won by Theresa May, who became the second female holder of the keys to No. 10 Downing Street. The longest-serving Home Secretary in half a century, her foreign policy views are largely unknown. While she was part of the Remain side in the referendum, she played a low profile role but her record indicates she is more of a hardliner on immigration than many who supported a Brexit.

The Labour Party too was in turmoil. Jeremy Corbyn, its Eurosceptic leader, faced a serious shadow cabinet revolt with the majority of his colleagues resigning their posts in protest at his lack of enthusiasm for campaigning to remain in the EU. It was an historic first with both the main political parties searching for fresh leadership, all over the Europe question. Added to this Nigel Farage, leader of the UK Independence Party (UKIP) has also stepped down claiming that his job is now done. For decades, UKIP’s main goal was to get Britain to leave the EU. Some might say, including Farage, mission accomplished. In Scotland, Nicola Sturgeon, the first minister, has pushed for a second referendum on independence and has threaten to prevent the new prime minister invoking Article 50 of the Lisbon Treaty that would not only make official the decision to leave the EU but also begin the two-year negotiating period for withdrawal. Legal experts remain unconvinced that the devolved British assemblies have the power to prevent Westminster for unilaterally taking the UK out of the EU. Similarly, Sturgeon will need London’s consent to hold a second bid to regain independence. In Northern Ireland, the other province to vote to Remain in the EU (England and Wales voted to leave), there have been calls for a border vote but this unlikely to happen.

Economically, the effects are still being felt. Britain, after all, has voted to leave the world’s biggest trade bloc. The pound fell to a 31-year low against the US dollar and there is growing uncertainty about the future relationship between Britain and the EU’s internal market. The reasons behind the decision to leave are varied and complex. Clearly, sovereignty played a role with English voters in particular keen to claw back many of the powers London has handed to Brussels over the last 43 years of membership. Immigration played its part equally too. Even though Britain is not part of Schengen and has control of its own land, air and sea borders (it has a common travel area with the Republic of Ireland, largely for historic reasons), many voters still want to reduce the number of non-British entering the country. In particular, the massive influx of Central and Eastern European workers since 2004 has caused unrest not only with the Eurosceptic wing of the Conservative Party but it has become a key issue for UKIP. The question now remains, what will happen to those EU citizens currently living and working in Britain and those 1.2 million British nationals residing in the EU?

Going forward, Britain must negotiate not only an exit agreement to unravel four decades of EU rules and regulations but also work out a new trade deal with the 27 remaining EU member states. This will take some time. The Treaty of Lisbon provides a two-year window for these exit talks and this can be extended. Yet, the talks on a new trade deal are likely to last longer. It is worth recalling that the recently completed EU-Canada trade agreement took seven years to complete and this has yet to be ratified by the member states. Britain will want to avoid this lingering uncertainty with companies reluctant to invest in the UK unless they are certain Britain will have access to the all important internal market of 440 million consumers. Yet, nothing is certain. A sense of buyer’s remorse has set in Britain with some questioning whether Britain will ever invoke Article 50 and begin the process of leaving. This is because of the ongoing economic aftershocks. A decline in the pound and a more serious decline in the British economic might well make the next prime minister think twice before pressing the nuclear button and walking out of the EU’s front door with first developing a post-Brexit plan. Yet, PM Theresa May have made it clear they will begin the exit process but what is not clear is when that process will start.

In short, Britain will likely face a decade of economic uncertainty and increased political isolation as a result of the vote to leave. Added to this is the impact the result will have on the UK and its component parts. A second Scottish independence referendum is now more likely than ever and the future of Northern Ireland remains in doubt. The genie is out of the bottle.

Beyond Europe, the implications of Brexit will reverberate for some time. The day that Britain voted to leave, President Obama phoned Cameron and the German Chancellor, a sign perhaps of Washington’s inevitable pivot from London to Berlin. Britain had long been Washington’s political access point to the EU yet the results will lead to a redefining of that ‘special’ Anglo-Saxon relationship. Berlin will become far more important an ally for the US in the years ahead. Should Scotland decide to leave the UK and seek EU membership in its own right as a nation state, Britain will have difficulty justifying its seat on the Security Council. The British nuclear deterrent would have to move from the North Sea and that sense of decline will once increase. A relic of the post-war settlement, the Security Council should and must be reconstituted to include countries such as India and Brazil as permanent members.

The vote to leave the EU was historic; to date, Britain is the only country to have voted twice on whether to leave the EU in the history of the integration process. Once the political dust settles in London, a clearer picture will emerge of how Brexit will take effect. However, those waiting with bated breath for a quick and painless divorce settlement between London and Brussels will be sorely disappointed. The EU will play hardball if Britain wants access to the internal market, access that will come with a price, the price being London’s acceptance of the EU’s four cherished freedoms, including the free movement of EU citizens to work in Britain. It remains to be seen whether the decision to leave will result in long-lasting and painful economic and political consequences for the future of the United Kingdom.

AIR launches Baloch mobile application 17/9/16

All India Radio on Friday announced the launch of a multi-media and mobile app for Balochi-speaking people in the Af-Pak region and other parts of the world.

Prasar Bharati Chairperson A. Surya Prakash, who launched the services said the move was part of India’s efforts to reach out to the neighbourhood for a better people-to-people contact. While officials denied any connect between Prime Minister Narendra Modi’s speech on Independence Day wherein he had raised the issue of Pakistani atrocities on the people of Balochistan, the service, they clarified was part of ongoing process to engage with neighbours.

India had also raised the issue of atrocities in Balochistan at the meeting of a U.N. body earlier this week. Prasar Bharati officials said the mobile app and the webpage were just “value addition” as Balochi service of the AIR has been in existence since 1974.

“As the world’s largest democracy, we have the responsibility to disseminate news and information across the world,” he said.

‘Cannot be blocked’

Asked if the services could face obstruction in Pakistan, AIR DG F. Shehryar said the radio service was on the short-wave which cannot be blocked. Mr. Shehryar added that “while AIR does not aim at countering any kind of propaganda, it will challenge falsehoods by presenting the correct information.”