[sacw] SACW #1 | 23 July 02

[Harsh Kapoor]

South Asia Citizens Wire #1 | 23 July 2002

>From South Asia Citizens Web:
http://www.mnet.fr/aiindex

__________________________

#1. Pakistan: A minimum agenda (Naeem Sadiq)
#2. India: Shades Of Emergency? - Nothing exceeds like excess (Praful Bidwa=
i)
#3. India: Godse's Gujarat : Post-genocide, the choice before Muslims=20
in the state
where Narendra Modi rules is simple: servility, boycott or exodus.=20
(Teesta Setalvad)
#4. India: A tale of Maretha Riot affected Persons (PUCL Shanti Abhiyan Rep=
ort)
#5. India: Bombay High Court Judgement - A Landmark Judgement on=20
Talaq (Asghar Ali Engineer)
#6. India: Petition calling upon the Madhya Pradesh government not to clos=
e
Eklavya.

__________________________

#1.

Date: Sun, 21 Jul 2002 14:07:31-0700 (PDT)

A minimum agenda

PPP after doing nothing while in power for two terms is now seeking=20
UN support to have the draconian blasphemy law abolished in Pakistan.=20
The military government despite having had absolute power for past=20
three years failed to get rid of this barbaric instrument meant=20
exclusively to appease the clergy, while it managed to successfully=20
get rid of many other laws that suited its own purpose. With=20
elections just around the bend and the recycled crooks of various=20
forms and shades once again getting ready to fool the gullible masses=20
with yet newer antics, slogans and promises, are we realistic in=20
looking forward to a change for better?.

It is good to know that the new elected representatives would be a=20
slight shade better, in the sense that they will at least be able to=20
read a newspaper, and sign their name at the indicated cross. That is=20
about the best one can do after a BA degree in Pakistan. But Pakistan=20
needs far more from its chosen men and women if it has to make even=20
minor incremental improvements in its profile of social, political=20
and economic development.

The responsibility for choosing the right people lies squarely with=20
the electorate. It is therefore essential that the ever ready to be=20
taken for a ride electorate should come up with a minimum agenda,=20
which should be declared by each candidate prior to elections=20
irrespective of his or her political affiliation. Here is a=20
proposed minimum agenda, that one would like every politician to=20
publicly announce before standing for elections. You may add to this=20
list and agree on a common minimum agenda that the citizens must=20
demand from every candidate.=20

1. I publicly declare that I consider the Blasphemy law a violation=20
of human rights and repugnant to civil society. I will take all steps=20
to have them abolished within 3 months of being elected.
2. I declare Hudood ordinance as a blemish on the civil society of=20
Pakistan and promise to take all actions to repeal this ordinance=20
within 3 months of being elected.
3. I declare that I am against all political, religious and ethnic=20
groups engaged in any form of militancy or military training from all=20
locations in Pakistan and Azad Kashmir, and work to have them=20
completely abolished.
4. I declare that I consider all Panchayats, Jirgas and other=20
private, tribal, religious or feudal law making bodies as unlawful=20
legislating instruments and take steps to have them abolished.
5. I declare that I consider all loans from any foreign governments=20
or financial institutions as harmful to the interests of Pakistan. I=20
will actively work to dissuade the government from taking any further=20
loans, and resign from my MNA / MPA seat if the government still goes=20
ahead on this suicidal path.
6. I declare that it is not for the state to decide the religion of=20
its citizens or to discriminate them on its basis. I will work to=20
introduce legislation that requires no Pakistani citizen to declare=20
his or her religion or sect at any stage for any purpose on any=20
official document.

Naeem Sadiq

_____

#2.

The Praful Bidwai Column
July 22, 2002

Shades Of Emergency?
Nothing exceeds like excess

By Praful Bidwai

The arrest of Mr Vaiko Gopalasamy and other top MDMK leaders under=20
the Prevention of Terrorism Act (POTA) for openly expressing support=20
for the Liberation Tigers of Tamil Eelam (LTTE) highlights a=20
grotesque irony: they were amongst the staunchest defenders of POTA=20
when it was contested in Parliament. Mr Vaiko described it as a=20
"bitter pill" that must be swallowed--in "the national interest", of=20
course. The irony extends to the whole of the National Democratic=20
Alliance.

The NDA insisted on ramming, first, the POTO ordinance, and then the=20
POTA Bill through the Lok Sabha and then through its improperly=20
convened special joint session with the Rajya Sabha--despite=20
thoughtful advice not to do so from no less than the National Human=20
Rights Commission, and distinguished jurists and human rights=20
activists. Today, the MDMK, the NDA=92s loyal Southern component and=20
the BJP=92s staunchest and steadiest ally in Tamil Nadu, has become a=20
candidate for an outright ban under that very law. Whether or not it=20
is banned depends on the personal whims and political cunning of just=20
one individual: Ms J. Jayalalithaa.

Yet, it would be churlish to revel in the NDA=92s embarrassment. Mr=20
Vaiko=92s detention under this draconian law is wholly unjustified,=20
indeed repugnant to democratic and Constitutional principles. This is=20
not, as some NDA leaders argue, because POTA is being improperly=20
applied or misused. Section 21 of the Act clearly states: "A person=20
commits an offence =85 if he addresses a meeting for the purpose of=20
encouraging support for a terrorist organisation or to further its=20
activities." POTA defines "a meeting" as a gathering of "three or=20
more persons whether or not the public are admitted". It is not in=20
dispute that Mr Vaiko on June 29 addressed near Madurai a public=20
meeting praising, and extending support to the LTTE. Nor is Mr=20
Vaiko=92s detention wrong because he represents a pro-LTTE opinion or=20
"sentiment", which BJP general secretary Arun Jaitley claims, is=20
widely shared in Tamil Nadu. Politics is no argument for condoning a=20
breach of the law, especially one meant to deter and punish=20
terrorism, if indeed it does so correctly and effectively.

However, the real problem is not the abuse of POTA, but its regular,=20
proper, designed, use. As POTA=92s critics, including this Columnist,=20
had repeatedly argued, it is an intrinsically harsh law which makes=20
an omnibus definition of "terrorism", gives sweeping powers to detain=20
mere suspects, and allows for 10 or 14 years=92 imprisonment for even=20
indirectly helping banned organisations. POTA is thus liable to be=20
used against the political opponents of those in power. Ms=20
Jayalalithaa has done just that--following the "due process" of=20
obtaining warrants from magistrates, etc.

Mr Vaiko is of course an unabashed supporter of the LTTE, with a long=20
personal association with Mr V. Prabhakaran. At his son=92s wedding=20
four years ago, the chief guests were Mr Prabhakaran=92s parents=20
(others being Messrs L.K. Advani and George Fernandes). Mr Vaiko has=20
organised countless meetings in aid of the LTTE and its fronts in=20
India and abroad. Mr Vaiko (wrongly) compares the LTTE with the=20
Palestine Liberation Organisation. He has never once criticised its=20
fascist-militarist ideology, its inhuman methods and its outrageous=20
terror tactics. This is morally wrong and politically as well as=20
legally unacceptable. Nevertheless, extending support to, or=20
justifying, a terrorist group=92s "cause" is not the same thing as=20
participating in or practising violent terrorism. It is a much lesser=20
offence, which can be punished under Section 13 (1)(a) of the=20
Unlawful Activities (Prevention) Act, 1967, or Sec 109 and 120(B) of=20
IPC. Hate speech or incitement to support violent=20
activities/organisations must be penalised. But that=92s not terrorism.

That Ms Jayalalithaa could so easily--and "legally"invoke POTA=20
against Mr Vaiko takes the wind of the NDA=92s argument that there are=20
"adequate safeguards" in the Act to prevent its abuse. The NDA is=20
left making contradictory and downright ludicrous statements on the=20
Vaiko case, while the weapon it fashioned is lethally used against=20
its own partner. In truth, POTA is fatally flawed. Its very=20
foundation subverts the principle of "innocent until proved guilty"=20
and admits non-judicial confessions as evidence--violating not just=20
the Evidence Act, but the notion of justice integral to fundamental=20
rights.

The casual manner in which POTA has been used is illustrated by the=20
case of some 400 Kashmiri citizens. They were first arrested in April=20
and May for a variety of criminal charges, including FERA violations.=20
Suddenly a chargesheet was filed against them under POTA after weeks=20
of detention. Nationally, the declaration of 30-odd groups as=20
"terrorist" organisations speaks of manifestly foul intentions. Not=20
one of them is a Hindutva group. Some are Naxalites who, however=20
misguided or violent they may be, aren=92t "terrorists".

The government has equally cavalierly invoked POTA against Kashmir=20
Times New Delhi Bureau chief Iftikhar Geelani and charged him with=20
possessing dangerous literature, and "classified" information on=20
Indian troop movements. It now turns out that the "classified"=20
information is old, publicly available, material. Embarrassed, the=20
police accuse Geelani of distributing pornographic literature, which=20
was found on his computer. But such material is circulated=20
unsolicited on the Internet!

Equally condemnable is the government=92s systematic harassment of=20
Tehelka.com, which has been starved of investment through the=20
persecution of venture-capitalist Shankar Sharma, who has been raided=20
25 times and served over 200 summons. Tehelka=92s "sting" reporters too=20
have been falsely charged under the Wildlife Conservation Act. This,=20
the earlier tax raids on Outlook owners, the government=92s prickliness=20
over the Alex Perry case, the deportation of the Al-Jazeera=20
correspondent for his critical reports on Gujarat, all amply clarify=20
a single purpose: media censorship and muzzling of dissent. Every=20
well-informed journalist in the Capital believes there is a "hit=20
list" of editors/reporters critical of the government. Newspaper=20
owners are being told to restrain or sack them.

One of the most insidious forms of such muzzling is the government=92s=20
interference with the Central Press Accreditation Committee (CPAC)=20
through which journalists get registered and accredited to the Press=20
Information Bureau (PIB). This gives them access to government=20
offices, and certain legitimate benefits like duty-free import of=20
professional equipment. Recently, the Information and Broadcasting=20
Ministry, which controls the PIB, nominated eight persons, many=20
linked to the RSS, to the 20-member CPAC. They included Tarun Vijay,=20
editor of the RSS organ Panchajanya, known for his vitriolic attacks=20
upon Hindutva critics and his ludicrous equation of Marx, Macaulay=20
and Madrassas. These new members have been stridently demanding=20
dis-accreditation of journalists like Perry on the ground that they=20
"hurt the nation=92s sentiments".

This is pernicious nonsense. Even during the Emergency, the=20
government did not dare mess around with the CPAC, which has long=20
been a journalist-controlled body. Today, by packing that committee,=20
it is arming itself with nasty powers and undermining the integrity=20
of the accreditation process. It seems undeterred by strong protests=20
from the Press Association, Indian Journalists=92 Union, Working News=20
Cameramen=92s Association, All India Newspaper Editors=92 Conference and=20
the All India Small and Medium Newspapers Federation.

Shocking as this is, it is part of an emerging authoritarian pattern.=20
On July 11, the Delhi police swooped down on 13 persons attending a=20
meeting of the Indo-Nepal People=92s Solidarity Forum, including=20
Economic & Political Weekly assistant editor Gautam Navlakha, writers=20
Anand Swaroop Verma and Pankaj Singh, and four Nepali citizens,=20
including three journalists. The Forum (for no earthly reason other=20
than official bloody-mindedness) has been banned under POTA. Not all=20
those arrested were its members. The detainees were interrogated for=20
three hours and all but the four Nepalis were released after intense=20
protests by various editors and columnists. The next day, activists=20
obtained a legal stay on the deportation of the four Nepalis who,=20
they feared, could be lynched after being branded "Maoists". But by 6=20
a.m., the four had already been deported--in contravention of a=20
treaty which gives Nepali citizens equal treatment, and in violation=20
of well-established norms.

A government which gets so paranoid about a meeting demanding a=20
dialogue between the government and the Maoists in Nepal, and which=20
fears dissenting opinion in the media so mortally, can go to any=20
extent in gagging the press. No wonder it is trying to pressure some=20
of the biggest newspapers by encouraging foreign investment into some=20
pro-Hindutva papers. Tomorrow, it can bung any journalist or writer=20
into jail on mere suspicion, by planting incriminating material on=20
his/her person, or by spreading rumours. This dangerous trend must be=20
reversed before it causes further damage.

Postscript: It is truly shameful that the Bhopal gas disaster victims=20
had to go on a 19-day-long hunger-strike to demand that the=20
government follow the Supreme Court=92s own order on the criminal=20
prosecution of Union Carbide chairman, Warren Anderson. The CBI has=20
gratuitously diluted charges against him. The victims want that the=20
Rs. 1,300 crores left of the compensation due to them should not=20
distributed among the gas-unaffected population of Bhopal. This is=20
only logical and just. But what can be more disgraceful than the=20
government's callous response to the victims=92 protest?

_____

#3.

Communalism Combat (Mumbai)
July 2002

Godse's Gujarat =
=20
Post-genocide, the choice before Muslims in the state
where Narendra Modi rules is simple: servility, boycott or exodus.

BY TEESTA SETALVAD

Like the Dandi Yatra marked a turning point in the freedom struggle,=20
the events in the state were a turning point in the fight against=20
non-secular forces.
- Narendra Modi, Gujarat CM, addressing a meeting at the Rashtriya=20
Shala, Rajkot,
The Times of India, April 22, 2002.
It is all a conspiracy to tarnish Gujarat=8A It all started with a=20
misinformation campaign when Surat was hit by a mysterious disease,=20
termed as plague. Then came the (campaign about) the killings of=20
Christians in Dangs... Not a single Christian was killed, or injured,=20
but the campaign continued. After this came the Bhuj earthquake, when=20
Gujarat was again shown in poor light=8A Now it's the communal=20
violence. All these are part of a strategy to discredit the state. No=20
chief minister had opened relief camps during communal riots in the=20
past=8A My government has arrested 31,000 people. How many were=20
arrested during the Congress regimes?
- Modi, The Statesman, April 23, 2002.

The Congress was involved in the Godhra massacre and subsequent=20
violence for gaining political mileage. They are trying to foment=20
communal hatred by making inflammatory statements and 'rubbing salt=20
on the wounds of people'.
- Modi's official release while addressing public meetings at Tharad,=20
Palanpur, Bhiloda and Shera towns during his one-day tour of North=20
and Central Gujarat,
Deccan Herald, April 27, 2002.

The Gujarat riots were a sign of Hindu valour and it was a divine=20
force which had given Hindus courage to stand up to the attackers.=20
For the first time in 1,000 years Hindus had givent their attackers a=20
befitting reply. The valour shown in Gujarat will not end here. The=20
VHP will take this message to the remotest corners of the country=20
through its Ram jap programmes.
Ashok Singhal, Vishwa Hindu Parishad leader inaugurating an R.S.S.=20
programme, The Deccan Herald, May 6, 2002

There are extremist elements living in the relief camps, I have asked=20
the home minister Gordhan Zadaphiya to shift the Daria Khan Ghumbhat=20
camp since my Hindu voters feel insecure with so many Muslims=20
together there.
- Bharat Barot, Gujarat Food and Civil supplies Minister in The Times=20
of India and Frontline, May 11-24, 2002.

Pakistan President Pervez Musharraf's provocative address earlier=20
this week has encouraged disruptive elements to burst a series of=20
bombs in Ahmedabad city buses yesterday (a dozen persons were=20
injured).
- Modi, UNI, May 30, 2002

The chief minister, Narendra Modi outrightly rejected the demand that=20
riot-affected victims from the worst-affected areas like Naroda=20
Patia, Chamanpura, Sardarpura, BEST Bakery, Panvad and other carnages=20
be provided with alternate resettlement sites. He also refused any=20
government funds to rebuild the ransacked shrines. The CM's tough=20
talk came at a gathering organised by the Gujarat Minorities Finance=20
Development Corporation, chairman Gani Qureshi.
- News report in The Times of India, June 8, 2002

If Muslims continue to take the country towards partition, they would=20
have to stay in relief camps like in Gujarat.
- Ashok Singhal, international working president, VHP, June 22, 2002, PTI.

Five months after presiding over a state-directed, statewide genocide=20
in his state, chief minister Narendra Modi continues to rule Gujarat=20
in abject defiance of judicial directives and Constitutional=20
principles. Refugees or internally displaced persons within Ahmedabad=20
city and all over the state have been forcibly evicted out of camps=20
where they had sought shelter, despite the assurance given by=20
government to the Gujarat High Court on June 4, that camps will not=20
be coerced into closing without adequate rehabilitation. The court=20
was hearing a public interest petition (PIL) filed by the=20
Mumbai-based Citizens for Justice and Peace (CJP) and Communalism=20
Combat.

As a result, nearly 25,000 of the over 66,000 (official figure)=20
people who had sought refuge within Ahmedabad city and a majority of=20
the 21,000-odd (official figure) refugees from the rest of the state=20
of Gujarat have been coerced into leaving the camps, their dignity=20
compromised and with no guarantee of security. (CC's independent=20
investigation in March had shown that there were over 1,20,000 people=20
living in the camps in Gujarat). In over 70 per cent of the cases,=20
basic rehabilitation costs have also been denied, with cheques of=20
meagre amounts being disbursed.

In fact, it was only after six relief camps (with the encouragement=20
of the CJP and CC) filed a petition in the Gujarat High Court in=20
mid-March, that over a dozen camps in Ahmedabad city were registered=20
and its occupants started receiving adequate water, grain and medical=20
facilities from the state.

Senior counsel Aspi Chinoy from Mumbai had made a spirited daylong=20
argument before justice Pradip Majmudar, urging that basic amenities=20
consistent with human dignity were a responsibility of a=20
Constitution-governed state committed to the basic rights and dignity=20
of every citizen. A joint commission comprising of advocates for the=20
petitioners and the collectorate had then been appointed by the HC=20
following which advocate for the petitioners Suhel Tirmizi, and the=20
government pleader had carried out a detailed survey of city camps.

Despite these checks, in what is being seeing as a crude move by the=20
Modi government to impose snap Assembly polls on a state that has far=20
from recovered from three months of violence, the civil=20
administration has been deployed to arm-twist the managers of camps=20
run by minority institutions, to shut them down 'voluntarily'. [...] .

[ The remain & conclusive part of this report will be carried in=20
tommow's dispatch ( SACW 25 July 2002]

_____

#4.

20/07/02
PUCL SHANTI ABHIYAN REPORT

A tale of Maretha Riot affected Persons

Maretha, a village just 9 km from the Vadodara City, is one of the=20
villages where the Riot Affected Persons (RAPs) have not been allowed=20
to enter and resettle in their own homes.
In the first week of April, following an attack by militant mob, all=20
the 82 Muslim families of Maretha were forced to flee to Vadodara=20
City. Currently, some 35 of these families are living in the Charotar=20
Rahat Camp in Yakutpura area of Vadodara City and the rest are living=20
with their relatives in surrounding villages. All is waiting for an=20
opportunity to return to their village Maretha.

Recently, the district collector and police commissioner had promised=20
to help these RAPs to return to their homes in Maretha, but soon=20
afterwards changed their position. The administration succumbed to=20
the pressure from a few notorious communal elements of the locality,=20
which have successfully blocked the rehabilitation of the RAPs.

The state administration has declared the situation as "normal". Yet=20
these 82 families from Maretha, continue to languish in this camp,=20
which has been "officially" closed since June 30!

Because of its "closed" status, the government relief and ration has=20
been stopped. If only, the families in the Charotar camp could shut=20
their pain of hunger, as easily as the government shut the ration!=20
These families of Maretha are staring at the dual tragedy - hunger=20
and inability to return to their homes. Today, they are completely=20
dependent on community support that is fast proving to be inadequate.

Maretha was a relatively safe village for all its residents, Hindus=20
and Muslims, for over a month since the tragedy in Godhra and the=20
riots that followed. Indeed, some Muslim families who were displaced=20
from Makerpura area of Vadodara City during the initial days of riots=20
had taken shelter in Maretha. But this peace did not last long.

In the first week of April all the 82 Muslim families and other=20
displaced families who had taken shelter in Maretha were attacked and=20
forced to leave the village by a militant mob. Their houses were=20
looted and then set on fire destroyed. The standing crop in the farms=20
destroyed or looted. Except for eight partially destroyed houses, all=20
others were completely destroyed. In addition, about forty-five=20
vehicles including motorbikes, auto-rickshaws and tempos were burned=20
and destroyed.

After wandering through the countryside, these families finally took=20
shelter at Charotar Rahhat Camp at Yakutpura, which was already=20
teeming with over two thousand RAPs from different parts of Vadodara=20
City and district.

Officially the Charotar Rahhat Camp is closed from June 30, 2002=20
onwards. According to Camp Sanchalak shri Najirbhai Gilatewala, the=20
administration has stopped supplying ration to the camp despite that=20
they are providing shelter and food to thirty five families who are=20
still in the Camp. So far the camp organizers have managed to secure=20
supply of relief and ration from the community sources. But these=20
sources are now drying up as the resources of the Muslim community=20
have been stretched to limits during these four months havoc. And the=20
camp organizers are in dilemma. They must find a way to either=20
resettle these families in their village as early as possible, or the=20
families will have to scatter and fend for themselves.

District police and colloctorate had organized several meeting for=20
rehablitation of the families. Recently on 15/07/02 the Police=20
Inspector Shri Rana (PI) of Makarpura police station hold a meeting=20
of majority community people of Maretha. The representatives of RAPs=20
too were also invited. Meeting took place in the police station=20
itself. The representative of RAPs requested for their early=20
rehabilitation stating that the camps are closed and now they have no=20
other place to go and for those who have took shelter with the=20
relatives, the relatives too are not in position to support these=20
RAPs. The PI explained the situation of RAPs to the majority=20
community people. Only few people from the majority community=20
prevailed upon the meeting. They told the PI in harshly that they=20
would not allow the entry of all the 82 families. Only the 8-9=20
families who are owner of agricultural land in the village would be=20
allowed to come and stay in the village. PI too in return retorted=20
strongly and warned them that he would not allow any obstruction in=20
the resettlement process. He told categorically that all the persons=20
who are enrolled in the latest electoral rolls all would have to be=20
resettled into their respective village. The electoral rolls are=20
government document and it is his duty to act according to it. He=20
even warned the majority community people that if they would tried to=20
maneuver and to create the trouble then he would not hesitate to take=20
recourse of firing. The meeting was dissolved with firm note. However=20
the PI told the representative to come to Maretha village next day=20
where the joint commissioner was going to hold the meeting.
On the next day 17/07/02 one another development took place. Mr.=20
Ganibhai Kureshi who is the chairman of Minority Board of State=20
Government phoned the collector, Vadodara to give hearing to=20
representative of RAPs. The representative took the view that they=20
have explained their position to PI Rana a day before so it would be=20
more appropriate to see the collector than to remain present in the=20
meeting held in the village. At about 7 PM they went to see Collector=20
Vadodara. The collector told them that right at that time the joint=20
commissioner Shri Thakur is holding meeting with the villagers and=20
would resolve the issue of rehabilitation. Then the representative=20
told the collector that their all houses are completely destroyed and=20
demolished and there is no place to cover their head. They urged the=20
collector to erect temporary shelter- Tents- so that they can stay in=20
camp for night and in the daytime they can start cleaning and=20
repairing their houses. The collector categorically told them that=20
the Government has stopped providing such temporary shelter and he=20
would not be able to provide the same.
On the next day on 17/07/02, the representative of RAPs went to see=20
the commissioner of police Mr. Tuteja. Mr. Tuteja told them that it=20
would be better if they can see Mr. Thakur who had meeting with the=20
villagers' yeasterday. He also gave them a letter addressed to Shri=20
P.C. Thakur. With the letter they went to see Mr. Thakur. Mr. Thakur=20
broke the earth shaking news that looking to currant Mahaul-=20
Vatavaran it would be better that only 8-9 families goes to Maretha.=20
The shocked and desperate RAPs told that how it is possible to=20
survive for few of them in such Mahaul- Vatavaran. Mr. P.C. Thakur=20
offered them enough protection but then what about remaining 73=20
families. Where they would go and when their rehabilitation would=20
take place was unsettled question over which the meeting ended up.=20
The representative of RAPs came to the camp with heart breaking news.=20
On hearing this completely opposite development, the atmospheres of=20
the camp went into dead silence. Five six notorious elements of=20
village with support of some influential persons of the area=20
succeeded in obstructing their return to their own homes.

The rehabilitation issue of RAPs from Maretha is deadlocked.=20
Officially the Charotar camp is closed and all have returned to the=20
village. So there is no urgency on the part of administration to deal=20
with these criminal elements firmly. On the other hand the camp=20
organizers are finding it increasingly difficult to support the 82=20
families. The camp organizers have given a dead line of 21/07/02 to=20
RAPs to find out alternative accommodation. It seems that tomorrow=20
the RAPs would be on street.

Apart from stoppage of relief ration from the camp, the compensation=20
awarded by the administration for houses damaged in Maretha village=20
has been extremely meager. As per the rehabilitation policy, Rs=20
50,000/- is to be awarded to house owners whose property has been=20
completely destroyed. While most of the Muslim houses in Maretha have=20
been completely destroyed, the actual compensation paid to the owners=20
is typically meager between Rs 1,000/- to Rs 4,000/-. Only three=20
households have received up to Rs 25,000/- for the damage to=20
property. Clearly, the procedure to assess the damage done to=20
property has been quite arbitrary.

Although the riots have subsided, for the victims of Maretha there is=20
no end to their long ordeal in sight. They cannot continue to stay in=20
the camp, they are not in a position to return to their village, they=20
are not assured of their safety, and the compensation package has=20
offered so far has been very inadequate to help them make a fresh=20
start to their lives. As for the administration, these helpless=20
victims of Maretha no longer exist. If only one could wipe away the=20
scars of rioting so easily!

Rajesh Mishra
Arch Vahini Mangrol
Ta. Rajpipla Dist. Rajpipla
Phone 02640 50140, 50154

_____

#5.

(Secular Perspective, July, 16-31, 2002)
BOMBAY HIGH COURT JUDGEMENT - A LANDMARK JUDGEMENT ON TALAQ

Asghar Ali Engineer

Recently the Aurangabad Bench of Bombay High Court gave an important=20
judgement in Muslim divorce case. It is a landmark judgement, which=20
will benefit many suffering Muslim women who are arbitrarily=20
divorced. We would like to throw light on this judgement. Before we=20
throw light on the judgement we would like to say something about the=20
personal law as applicable to Muslims in India.

There are great deal of misconceptions about Muslim personal law both=20
among Muslims and non-Muslims. Muslims think it is beyond the scope=20
of any change as it is divine and perfect in every respect. The=20
non-Muslims think, on the other hand, it is very rigid and unfair to=20
women and stands in need of improvement. Some rationalists and=20
ironically communalists of the Sangh Parivar want to abolish personal=20
laws and implement Common Civil Code. The whole matter is stuck=20
between these polarities and one can hardly hope either from the=20
Muslim Personal Law Board or country's legislature to effect some=20
reasonable changes.

For Muslims their personal law has also become a matter of their=20
religious identity. They do not want any interference from government=20
of the country or by legislature in their personal law as it is=20
deemed undue interference in their religious matters. They argue that=20
freedom of religion has been guaranteed by Art. 25 of the=20
Constitution and effecting any changes amount to curtailing this=20
freedom. Even the Supreme Court judges are not unanimous on the=20
question whether enforcing Uniform Civil Code as per Article 44 of=20
the Constitution would violate the right under Article 25 or not.

The Muslims feel that Articles 25 and 44 contradict each other and=20
there is no question of enforcing Article 44 which is any way only=20
recommendatory and not obligatory. Thus minorities in general and=20
Muslims in particular refuse to allow any change in their personal=20
laws. On account of this it is women who suffer. Another complication=20
factor is the aggressive attacks by the Sangh Parivar on Muslims from=20
time to time. The communal violence on the scale on which it was=20
perpetrated in Gujrat recently makes minorities extremely insecure=20
and naturally so. In such conditions they are bound to resist any=20
attack on their religious identity.

But one can hardly ignore the plight of women either. Many Muslim men=20
are unjust in their behaviour towards women. They, like men of other=20
religious communities, treat women as mere chattels. Islam had=20
provided women not only with dignity but also gave them concrete=20
legal rights in no way inferior to men. As far as women were=20
concerned Islam was nothing short of a social revolution for them.

However, society drags down religion to its own level. The society=20
was not prepared to accord high or equal status to women. It managed,=20
through various means, to push women to lower status on the social=20
ladder. Pre-Islamic customs and traditions found place in Islamic=20
Shari`ah through what can be called analogical reasoning (qiyas) and=20
ijma` (i.e. consensus)

Thus Muslims must understand that Shari`ah laws have incorporated=20
human reasoning as much as divine injunctions and human reasoning is=20
greatly influenced by ones own social and cultural ethos. The=20
medieval social and cultural ethos prevailed over Qur'anic=20
injunctions and Qur'anic ethos. The status of Muslim women, which was=20
elevated came hurtling down. Is it not for Muslims to seriously=20
reflect on this and bring about desired changes in Muslim personal=20
law as applicable in India?

It is also important to note that what is known as Muslim personal=20
law was enacted by the British government in the nineteenth century=20
and was based, apart from Shari`ah law, on British procedural law and=20
also on various preceding judgements. It was not even properly=20
codified. The judgements of those days delivered by the British=20
courts were influenced by social ethos of Victorian period, which=20
moulded the opinion of the British judges and also by prevailing and=20
proven customs and traditions.

Today women's rights have assumed great importance and have to be=20
taken into account while deciding the cases pertaining to marriage,=20
divorce, maintenance and property. Still our social traditions are=20
such as to deny women rights in these respects. And as far as Muslim=20
personal law is concerned, in the absence of any codification it is=20
judge's opinion, which takes precedence. Also, one has to remember=20
that whatever the personal law judge is bound to be influenced by the=20
social movements for women's rights. No judge can ignore the rights=20
of women in today's social ecology.

The Supreme Court judgement in the Shah Bano's case in 1985 also has=20
to be seen in this light and the subsequent law (Muslim Women's Act,=20
1986) upturning the Supreme Court judgement did not influence judges=20
minds and they continue to give judgements as before even under the=20
new law. Subjective human role is very important and this role is=20
determined by prevailing social ethos. That is why most of the high=20
courts are giving progressive judgements in favour of Muslim women.

The latest judgement was delivered by Aurangabad Bench of Bombay High=20
Court in respect of divorce of a Muslim woman. This judgement will=20
greatly benefit Muslim women in India. The system of triple divorce=20
is widely prevalent among Sunni Hanafi and Shafi`i Muslims except of=20
course among Ahl-i-Hadith. But Ahl-i-Hadith are in small minority any=20
way.

Fahimbi from Latur was married to Dagdu Chote and three children were=20
born from this wedlock. Fahimbi filed a case under Section 125 of=20
Cr.P.C. for maintenance for herself and for her three children. Dagdu=20
Chote married another woman Kamrunbee and from her also children were=20
born. He neglected the first wife Fahimbi and her children and did=20
not pay any maintenance.

On receipt of summons from the Court Dagdu Chote appeared before the=20
court and filed a reply saying he does not owe any maintenance as he=20
divorced her (Fahimbi) on 24th February 1995. He also claimed that he=20
divorced his wife in the presence of a Qazi and two witnesses one of=20
whom was Muslim and another one Hindu. He, therefore, prayed before=20
the case that application for maintenance under Section 125 of=20
Cr.P.C. by Fahimbi be dismissed. This petition was dismissed by the=20
2nd joint judicial magistrate First Class at Latur on 21st November=20
1998. And the maintenance application filed by Fahimbi and her three=20
children was allowed. The Magistrate maintained that the fact of=20
talaq must be proved, as it cannot be accepted merely on grounds of=20
pleading.

The respondent No. I i.e. Fahimbi maintained that she was unaware of=20
talaq has been given to her as it was not communicated to her by=20
registered post which was returned. However, a presumption was made=20
by Dagdu that pronouncement of talaq was communicated to the wife on=20
30th November 1992. The reason stated in the talaqnama executed was=20
that the wife had filed a case for maintenance and that she insulted=20
the husband and mother-in-law as well as there were differences of=20
opinion, as a result of which they cannot run a family.

The husband had pleaded orally that he had divorced his wife as per=20
Mohammadan Law by pronouncing talaq in presence of two witnesses=20
though there he gave no reasons. The learned Judges maintained that=20
as per the Holy Qur'an there should be 1) it should be for reasonable=20
cause, 2) it should be preceded by an attempt at reconciliation and=20
c) the talaq be effected if the attempt for reconciliation failed.

This view was taken by the Single Judge and the learned judge had=20
agreed with the Gauhati High Court in the case of Zeenath Fatima=20
Rashid and the Calcutta High Court in the case of Chandbi.

The Aurangabad Bench formulated the issues as follows: 1) whether a=20
Muslim husband has a right to divorce his wife without any reason and=20
merely at his whim; 2) whether the Muslim law mandates pre-divorce=20
reconciliation and whether any pleading by husband in the court that=20
he divorced his wife would amount to divorce according to Muslim law=20
and whether the husband has to prove in the court that talaq was duly=20
effected.

General belief is that a Muslim husband is free to divorce his wife=20
any time at his will and without assigning any reason but the=20
teachings of Holy Qur'an and other sources of Islamic law hold=20
marriage as contract but once marriage takes place it becomes an=20
institution for life long and this contract is holy and sacred (the=20
Qur'an describes it as mithaq-e-ghaliz i.e. strong covenant).

The talaq must be preceded by an attempt at reconciliation. The=20
Muslim law also recognises distinction between effective or proper=20
talaq and ineffective or improper talaq. Thus it is necessary, the=20
Aurangabad Bench of Bombay High Court concluded that a talaq, even if=20
it is oral, must be proved before the Court, if it is contested by=20
wife by leading evidence.

The above judgement will be quite beneficial for women and is quite=20
in keeping with the Islamic law, particularly in keeping with the=20
Qur'anic pronouncements on talaq. The Qur'an lays emphasis on=20
justice, not on arbitrariness. Anyone who ignores the spirit of=20
justice violates Qur'anic spirit. The `Ulama and members of Muslim=20
personal law board must not allow any Qur'anic injunction or spirit=20
to be violated. The Qur'an has done great service to the cause of=20
women and empowered them through their clearly defined legal rights.=20
Time has come that this Qur'anic spirit be upheld and justice be done=20
to suffering Muslim women.

One must also congratulate the learned judges of the Aurangabad Bench=20
to have discussed the matter in detail in their judgement in the=20
light of the Qur'an and its injunction and not merely on grounds of=20
secular and constitutional laws. This is indeed a healthy change.

******************************
Centre for Study of Society and Secularism,
9B, Himalaya Apts., 1st Floor,
6th Road, Santacruz (E),
Mumbai:- 400 055.

_____

#6.

International petition calling upon the Madhya Pradesh government not to c=
lose
Eklavya.
http://www.PetitionOnline.com/mod_perl/signed.cgi?3214&1

_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/

SACW is an informal, independent & non-profit citizens wire service run by
South Asia Citizens Web (http://www.mnet.fr/aiindex) since 1996.
To subscribe send a blank message to:
<act-subscribe@yahoogroups.com> / To unsubscribe send a blank
message to: <act-unsubscribe@yahoogroups.com>
________________________________________
DISCLAIMER: Opinions expressed in materials carried in the posts do not
necessarily reflect the views of SACW compilers.
\\|//\\|//\\|//\\|//\\|//\\|//\\|//\\|//\\|//\\|//|//\\|//|//\\|//|//\\|//|=
//\\|//|//\\|//