'People will forgive you for being wrong, but they will never forgive you for being right - especially if events prove you right while proving them wrong.' Thomas Sowell
Here is a concise summary of Section 125 of the Indian Code of Criminal Procedure (CrPC):
Section 125 - Order for Maintenance of Wives, Children and Parents
Key Points:
A Magistrate can order a person with sufficient means to provide monthly maintenance to:His wife who is unable to maintain herself
The Magistrate can order interim maintenance and expenses of the proceedings to be paid during the pendency of the maintenance application.
Failure to comply with the maintenance order can result in the Magistrate issuing a warrant to recover the amount or sentencing the person to up to 1 month of imprisonment.
A wife is not entitled to maintenance if she is living in adultery, refuses to live with her husband without sufficient reason, or is living separately by mutual consent.
The nature of proceedings under Section 125 is civil, not strictly criminal, and the provisions are to be construed liberally for the welfare of the wife and children.
This meaningless phrase allows the government to shift blame to the public for failing to be sufficiently responsible writes Owen Jones in The Guardian
Officially, the new strategy is “personal responsibility” and “good, solid British common sense”, as our prime minister colourfully describes it; unofficially, operation blame the public is well under way. As media outlets query why London’s trains and buses are rammed despite government advice, our transport secretary, Grant Shapps, pleads with silly old commuters not to “flood” back on to public transport.
The small flaw is that the government has ordered millions of workers to return to their jobs, and given the continued failure to invent teleporters, they need a means to bridge the distance between their homes and their work. If you’re a Londoner earning more than £70,000 a year, this is no big deal: about 80% have access to a car, and most can work from home. Unfortunately, nearly half of the capital’s citizens – and over 70% of those earning less than £10,000 – do not have access to a car: if you want to understand those images of packed trains and buses, start here.
It is unsurprising that a government that has presided over Europe’s worst death toll is so invested in shifting the blame. Was it “good, solid British common sense” to pursue herd immunity and impose a lockdown later than other European nations, even despite having advance notice of the horrors of Lombardy? Perhaps, indeed, it was “good, solid British common sense” to send vulnerable patients back to care homes without testing them for coronavirus first, seeding the illness in a sector in which up to 22,000 people may have died? Or, who knows, perhaps “good, solid British common sense” could explain how frontline staff have been left exposed for a lack of personal protective equipment?
But the strategy in the government’s new approach is clear. “Stay alert” is meaningless, of course, except to devolve responsibility for what happens next to individuals. Grownups don’t need a nanny state to hold their hands, scoff the government’s outriders: rather than relying on detailed instructions and central diktat, we should rely on our judgment. The implication, of course, is that if there is another spike in infections and death, that will be the public’s fault for not exercising adequate levels of personal responsibility.
Here is a revival of the ideals of High Thatcherism, except applied to a pandemic. Back in the 1980s, what were once known as social problems requiring collective solutions – such as unemployment and poverty – became redefined as individual failings. “Nowadays there really is no primary poverty left in this country,” declared Margaret Thatcher herself. “In western countries we are left with the problems which aren’t poverty. All right, there may be poverty because people don’t know how to budget, don’t know how to spend their earnings, but now you are left with the really hard fundamental character – personality defect.”
If you were poor, it became an increasingly popularised attitude that it was because you were feckless, workshy, stupid and lazy. Thanks to the former Tory minister Norman Tebbit, “get on your bike” became a national cliche: it was more convenient, of course, for the government to pretend that mass unemployment was caused by a lack of effort, graft and can-do determination, rather than monetarist economics that ravaged entire industries.
What the dogma of “personal responsibility” does is erase the inequalities that scar, disfigure and ultimately define society. It pretends that we are all equally free, that our autonomy over our lives and circumstances are the same; that a middle-class professional working from home with access to a car can make the same choices as a cleaner expected to work halfway across a city.
The estimated 60,000 people who have so far died in this national calamity were not wrested from their families because the public failed to be responsible, and neither will the deaths to come in the weeks ahead. Any uptick in infections won’t be down to someone standing one metre rather than two away from their parent in a park. It won’t be down to people inviting neighbours round for forbidden cups of tea in their kitchens, instead of paying poverty wages to cleaners to wash away their dirt.
The explanation will instead be straightforward: the government relaxed a lockdown to force disproportionately working-class people into potentially unsafe environments at the behest of employers who have prioritised economic interests over human life. Another aggravating factor will be the abandonment of clear instructions in favour of confusion. It may well be this is a deliberate strategy, to claim that the government was perfectly clear, but the public let the team down by not showing enough “good, solid British common sense”. Whatever happens, the attempt to shift blame for the most disastrous government failure since appeasement on to the public must not succeed. This is on them: they did this, and we must not let them forget it.
On the 4th of November, 1948, Dr. B.R. Ambedkar rose to address the Constituent Assembly, and proudly stated that “the... Constitution has adopted the individual as its unit”. On Tuesday, this constitutional vision, under siege for much of India’s journey as a democratic republic, came within a whisker of destruction at the hands of the Supreme Court. But when all the dust had cleared in Courtroom No. 1, it finally became evident that Chief Justice J.S. Khehar had been able to enlist only one other judge, out of a Bench of five, to support his novel proposition that the religious freedom under the Indian Constitution protected not just individual faith, but whole systems of “personal law”, spanning marriage, succession, and so on. This view would not only have immunised instantaneous triple talaq (talaq-e-biddat) from constitutional scrutiny, but would also — in the Chief Justice’s own words — have ensured that “it is not open for a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”.
Had the Chief Justice managed to persuade one other judge to sign on to his judgment, we would have found ourselves living under a Constitution that sanctions the complete submergence of the individual to the claims of her religious community. A reminder, perhaps, of how even the most basic constitutional values, often taken for granted, hang by nothing more than the most fragile of threads. But if the relegation of the Chief Justice’s argument to a legally irrelevant dissenting opinion narrowly averted disaster, the separate opinions of three judges invalidating the practice of talaq-e-biddat gave us something to cheer about — but not much. By a majority decision, instantaneous triple talaq is now invalid, a significant victory that is the result of many decades of struggle by the Muslim women’s movement for gender justice. That is something that must be welcomed. However, the value of a Supreme Court judgment lies not only in what it decides, but also in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation. In that sense, the triple talaq verdict is a disappointment, because even the majority opinions proceeded along narrow pathways, and avoided addressing some crucial constitutional questions.
The majority
Justice Rohinton F. Nariman, writing for himself and Justice U.U. Lalit, held that the 1937 Muslim Personal Law (Shariat) Application Act had codified all Muslim personal law, including the practice of triple talaq. This brought it within the bounds of the Constitution. He then held that because talaq-e-biddat allowed unchecked power to Muslim husbands to divorce their wives, without any scope for reconciliation, it was “arbitrary”, and failed the test of Article 14 (equality before law) of the Constitution. The practice, therefore, was unconstitutional.
Justice Nariman’s reasoning, while technically faultless, avoided the elephant in the room that had been ever-present since the hearing began. Under our constitutional jurisprudence, codified personal law — that is, personal law that has been given a statutory form, such as the Hindu Marriage Act — is subject to the Constitution. However, uncodified personal law is exempted from constitutional scrutiny. In other words, the moment the state legislates on personal law practices, its actions can be tested under the Constitution, but if the state fails to act, then those very practices — which, for all relevant purposes, are recognised and enforced by courts as law — need not conform to the Constitution. This anomalous position, which had first been advanced by the Bombay High Court in a 1952 decision called Narasu Appa Mali, and has never seriously been challenged after that, has the effect of creating islands of “personal law” free from constitutional norms of equality, non-discrimination, and liberty.
By holding that the 1937 Act codified all Muslim personal law, Justice Nariman obviated the need for reconsidering this longstanding position, even as he doubted its correctness in a brief, illuminating paragraph. As a matter of constitutional adjudication and judicial discipline, he was undoubtedly right to do so. However, it is impossible to shake off the feeling that the court missed an excellent opportunity to review, and correct, one of its longstanding judicial errors. It seems trite to say that in our polity, there should not exist any constitutional black holes. The basic unit of the Constitution, as Ambedkar said, is the individual, and to privilege state-sanctioned community norms over individual rights negates that vision entirely.
In a separate opinion — which turned out to be the “swing vote” in this case — Justice Kurian Joseph did not go even that far. He simply held that talaq-e-biddat found no mention in the Koran, and was no part of Muslim personal law. Effectively, he decided the case on the ground that talaq-e-biddat was un-Islamic, instead of unconstitutional — begging the question whether secular courts should be adjudicating such questions in the first place. If Justice Nariman’s opinion was narrow and technical, Justice Joseph’s was narrow and theological. Therefore, in a case that involved, at its heart, issues of the intersection between personal law, the Constitution, and gender discrimination, there is no majority view on any of these topics.
The dissent
This brings us back to the dissent. Not only did the dissenting opinion privilege community claims over individual constitutional rights, it also conflated the freedom of religion with personal law, thereby advancing a position where religion could become the arbiter of individuals’ civil status and civil rights. Here again, it had been Ambedkar, extraordinarily prescient, who had warned the Constituent Assembly on the 2nd of December, 1948: “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death... if personal law is to be saved, I am sure... that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extent beyond beliefs and rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”
Ultimately, what separates religious norms and personal law systems — and this includes all religions — from the laws of a democratic republic is the simple issue of consent. This is why the Chief Justice’s conflation of religious freedom and personal law was so profoundly misguided: because, in essence, he took a constitutional provision that had been designed to protect an individual, in her faith, from state interference, and extended it to protect a personal law system that claims authority from scriptures — scriptures whose norms are applied to individuals who had no say in creating them, and who have no say in modifying or rejecting them. The Muslim women challenging triple talaq invoked the Constitution because there was no equivalent within their personal law system; the Chief Justice would have denied not only them that possibility, but would have denied to every other individual, who felt oppressed and unequally treated by her religious community, for all time — and told them, as he did in this case: “Go to Parliament, but the Constitution has nothing for you.”
At the very least, the Majority judgments did not close that window. For that, we must say: two cheers to the Supreme Court.
Whenever Muslim women approach the judiciary in a quest for justice, Muslim orthodoxy rallies against the abolition of Personal Laws. Their rhetoric of ‘identity under attack’ resumes. Clearly, Indian Muslims have moved beyond the politics of identity; choosing to express themselves through contributions to science, architecture, law, medicine, film, theatre, music, literature and other fields.
Debates over the validity of pronouncing talaq, divorce, three times in one go or over three months offer no solutions. Both methods find permissibility in schools of Islamic fiqh, jurisprudence. Unilateral divorce allows men to commit grave injustices by stripping women of honour and dignity, inalienable rights both in Islam and the Indian Constitution. It is unwise to expect reform from the community whose religious leaders have historically treated women as subjects and not equals.
Islamic law is a human endeavour that evolved over centuries with multiple schools holding diverse opinion. The principles of Islamic jurisprudence are weighing the benefit and harm of legal rulings in societies that jurists live in. Barring the foundational five pillars of Islam, nothing in Islamic law is definitive. Salafis and Wahhabis reject classical Islamic jurisprudence and philosophy. Their myopic literalist interpretations of Islam cause gross violations of human rights.
Sharia has always been flexible in adapting to changing times and situations. Umar, the second Caliph of Islam and companion of Prophet Muhammad, dropped sharia punishments for theft when famine struck Arabia. He realised people were stealing to survive. The eighth century Imam Shafie, founder of Shafie jurisprudence, changed many of his fatwas on migrating from Iraq to Egypt. Had sharia lacked movement, Islam would not thrive in India.
Islam is dynamic, understood and practised in a variety of ways in different cultures. Patriarchy remains deaf to the Quran’s call for equality, justice and compassion that extends to all humanity. Excluding women from leadership, patriarchy is blind to the Quran celebrating the wise consultative rule of Queen Sheba and her diplomatic engagement with Solomon.
Patriarchy fails to recognise the Quran honouring women as recipients of wahy, Divine Revelation; as experienced by Moses’s mother and Mariam, or Mary. Some famous early and medieval commentators of the Quran, such as Imam Hajar Asqalani and Imam Qurtubi, include Mary amongst the prophets.
The Islam of Prophet Muhammad disappeared within 40 years of his death with powerful and oppressive patriarchal tribes regaining power. The poor, women and slaves embraced by Islam were again marginalised. Islam’s paradigm shift in empowering women and slaves had created great difficulties for the Prophet. He sought political counsel from women, welcomed them in his mosque; encouraged women like Haqibatul Arab to deliver khutbahs, sermons. He appointed Umm Waraqa the Imam of her mosque, and sent a muezzin, one calling to prayer, from Medina to her village.
Some Islamic scholars, including the famous 9th century Imam Tabari, drew upon this precedent to proclaim it lawful for women to lead mixed gender prayers. American Muslim feminists are reclaiming this tradition despite the controversies it evokes.
Islam abrogated the concept of God as Father, saying, ‘Nothing is like Allah’. God transcends gender and is best understood as Noor, Compassionating and Illuminating Guidance. ‘He’, is used in the Quran and its translations because Arabic grammar is gender specific with no pronoun for the neuter gender. In most languages including Arabic, Persian and Urdu, the feminine is applied for ‘Zaat e Elahiya’, Divine Essence.
The word rahm, womb, is derived from God’s primary attributes Rahman and Rahim, Mercy and Compassion. Prophet Muhammad often likened God to a Mother who forgives her children. Traditional Arab poets addressed God in the feminine, literature that would probably be termed blasphemous today.
The Quran advocates equitable treatment of slaves and encourages freeing them, but does not specifically ban slavery. Responding to prevailing 7th century Arabian evils, Quran forbade the inheriting of women, female infanticide and abuse of slaves. Muslims across the world welcomed the abolition of slavery, believing it to be in accordance with Quranic guidance.
Islamic scholars have responded creatively with Quranic verses sanctioning armed struggles. Invoking the principle of ‘asbab e nuzul’, cause of revelation, they rightly limit this relevance to ‘just wars’ against oppression fought by the first Muslims. Instead of similar creative engagement with regard to oppressive canonised laws for women, patriarchy maintains the status quo. Women’s rights can no longer be defined by political Islam or Arab culture and histories.
In matters of inheritance and nafaqa, maintenance, Quran guarantees a minimum financial protection for women but does not cap the maximum. Offering more financial and emotional security to women can never conflict with Islam. Prophet Muhammad famously said, ‘None of you believes till you love for the other what you love for yourselves.’
Sharia law denies the right of punishment to individuals, leaving this responsibility to the state. Sharia endorses responsible citizenry, making it mandatory for Muslims to comply with laws of the lands they inhabit.
Traditionally, women pilgrims travelling to Mecca required to be accompanied by a mahram, husband or other male relatives with whom marriage is forbidden. Negotiating modern challenges, many Islamic scholars have ruled it permissible for women to travel alone. They declare the state as mahram, for in ensuring security, the laws of the state replace the role of the ‘protective bodies’. This principle should extend to the Indian state.
It is now so difficult to isolate a child’s contribution, why not go straight to the source – start testing the parents?
Co-authorship seems to be the order of the day. Photograph: PhotoAlto / Alamy/Alamy
Catherine Bennett in The Guardian
For as long as I can remember, I have been fascinated by the importance attached to personal statements, written to a formula, and not by the candidates alone, as part of applications to British universities. The longer it persists, the more farcical, unfair – and excruciating for students – this requirement becomes.
Every year, experts on the process refine their advice and share disdainful lists of cliches that should never be used to start a personal statement, such as: “For as long as I can remember I have been fascinated” (used 196 times in 2013), or: “Nursing is a profession I have always looked upon with” (178 times), thereby adding to the self-consciousness of students required to appeal, in around 700 fresh and original – yet thoughtful and relevant – words, to admissions tutors, some of whom admit they never glance at these exercises in supplication.
And why, anyway, the horror of cliches? They are not, most of these 600,000 or so young applicants, applying for BAs in Being Martin Amis, in a world where originality of expression is the key to worldly success. You need only read one of George Osborne’s op-ed contributions, or cast your mind back to the Labour leadership hustings, to appreciate that 17-year-olds are being held to far higher standards than middle-aged politicians.
If Osborne can begin a piece: “Britain is firmly on the road to recovery, thanks to the hard graft of working people”, and Cameron blither: “I’m so passionate”, and Corbyn believe that “Jeff wants to know” constitutes a compelling barb, why shouldn’t an aspiring nurse begin a personal statement with: “Nursing is a profession I have always looked upon with...”? It can only mean, in the nurse’s case, that in the event of a tiebreak between two equally qualified candidates, a more dashingly phrased as opposed to unvarnished expression of intent would be taken to indicate superior potential. How much British politics has to learn.
Now, to add to the pressure on our future accountants and chemists to demonstrate tenacity without tedium, vivacity without froth, research suggests that much of the advice given by schools to young statement writers is wrong.
Arriving just after the final deadline for this year’s Ucas submissions, a report for the Sutton Trust, written by Dr Steven Jones of Manchester University, may well cause consternation among candidates who have just put, for example, a declaration of commitment, carefully stripped of cliches, before proof of intellectual curiosity.
It was not unexpected, perhaps, that support with personal statements, routine in independent schools, should help students from comprehensives make more successful applications to highly selective universities. But Jones also discovered that some existing guidance may be counterproductive. “Admissions tutors,” he writes, “tend to value focused and sustained analysis of a specific topic of interest or case study rather than broad statements about a subject or attempts to make the statement more ‘personal’.”
He shows how one candidate’s expression of enthusiasm (“I am particularly interested in Victorian literature”), and explanation – “the social constraints and etiquette of the time are vividly portrayed, yet the novels of this period remain timeless” – was considered “bland” by an admissions tutor. “There is a much stronger way to put this tension.”
No doubt. Then again, the hapless candidate, who has, we note, commendably avoided the now deprecated word “passion”, is only aiming to please. It could be that the author is capable of stronger phraseology, on the febrile, emotionally explosive content of Victorian literature, but reluctant to go over the top, since she is applying for five different courses, in places offering conflicting advice on personal statements. Perhaps this application’s authors have been studying the university website, which holds up as exemplary the hardly less tepid: “Computing is a thought-provoking subject, covering a range of disciplines and has permeated every aspect of modern life.”
The writers might be focusing, instead, on transferable and relevant skills: “Your child can also mention how their current qualifications have broadened their knowledge,” the University of Bath tells parents. Except that qualifications speak for themselves. So don’t bother. Don’t mention sport. Try to be interesting, instead. OK, do mention sport. It’s character-building. Ditto the Duke of Edinburgh award, which has no conceivable connection with your passion for, sorry, interest in, medieval history. “This is your opportunity to sell yourself,” is Ucas’s charming summary of this exercise, one which appears to have few, if any, parallels outside the UK. So grab attention. But don’t be glib. Or a prat. “We want you to be different, but not TOO different,” one tutor told Which?, a whimsical preoccupation, perhaps, when English teenagers are ranked the world’s worst for literacy and not much better at maths.
But what is uniform, in all this advice, is the assumption that the statement is co-authored. The mothers who ask you: “Have you done yours yet?”, who urge early submission, to beat the crowds, and who go on websites to share about “personal statement hell”, are doing no more than comply with Ucas expectations, as they follow through on years of help with homework, securing work experience, renting violins. “Do ask people that you trust, like your teacher/adviser or parent/carer to read through what you have written and give you feedback,” Ucas says, advice that is unlikely to help tutors with the true state of applicant literacy.
Having never, mercifully, been invited to collaborate on a personal statement, I can’t be sure how tempting it is to tinker, redraft, maybe reword the thing, in line with Ucas hints and its stern warnings on plagiarism. Very, probably, when your child is effectively competing with adults, including dedicated coaches in independent schools, brilliant stay-at-home mothers and others willing to pay £150 for a shop-bought item, from, say, Oxbridge Personal Statements. Liberal instructions to parents – “Your child’s personal statement needs to create a strong impression” – confirm that its editing is, indeed, your duty.
While coursework is being phased out in GCSEs and A-levels, for reasons having to do with the lamentable shortage, in many homes, of parents qualified to write 3,000 words on Macbeth, personal statements continue to make parental competence, finances and cultural capital a factor in applications to universities whose graduates will dominate the professions. So long as inequality of access remains a theme in higher education, the survival of the personal statement, in its cheat-friendly, whole-family format, must vitiate all corrective projects.
Whatever happens to the Sutton Trust’s recommendations, that personal statements be demystified, perhaps reformed, its findings on admissions tutor preferences guarantee one thing: formal analytical passages, modelled on Dr Jones’s examples, will be all the rage in next year’s statements.
In fact, since adults are likely to supervise this development, it would save precious student time, time perhaps better devoted to numeracy and literacy, if the universities invited parents to submit the resulting creations to Ucas under their own names, with the child merely confirming it is the adult’s own, unaided work.
