Uniform Civil Code to national reform
Sunanda K Datta-Ray
The right thing can sometimes be done for the wrong reason. Sometimes, too, the least offensive of several bad options must be chosen. India faces both dilemmas in ensuring that its 200 million Muslims enjoy the full fruits of modernity and national progress without surrendering their distinctive identity.
But politics also intervenes, and it's not difficult to discern why the BJP opposes the “triple talaq” procedure (whereby a couple is considered divorced under Muslim personal law or Sharia if a husband utters the word talaq, or divorce, to his wife three times) and favours a uniform civil code. However, just because it might consolidate Hindu votes behind the ruling party is not sufficient reason to denounce an objective that inspired most of the founding fathers of the republic and is explicitly mentioned in Article 44 of the Constitution.
The more serious objection, as Veerappa Moily, the former Law Minister and Congress leader explained, is that it will be “next to impossible” to implement in a country where between 200 and 300 personal laws cover various communities. It might necessitate amending not just Article 370 that grants special status to Jammu and Kashmir, Article 371A (for Nagaland) and Article 371G (for Mizoram) unless these areas are excluded from the code's purview. It would be a blow against federalism since personal law would have to be removed from the Constitution's concurrent list so that parliament enjoys the exclusive power to make laws on them.
The problem of adjustment is not unique to India. France is fiercely debating whether or not certain Islamic practices are compatible with the values of the French republic. An opinion survey by France's Institut Montaigne shows that 14 per cent of French Muslim women won't be treated by a male doctor, 29 per cent think the Sharia more important than government-enacted laws, 40 per cent believe employers should pay heed to the religious observances of employees, another 40 per cent believes in polygamy, 44 per cent won't swim in a mixed-sex pool, and 60 per cent support Muslim girls wearing the hijab in school.
Some Muslims are urging Britain to censor its cultural heritage. They want their own family courts and a holiday on Friday. In deference to their views, the heir to the throne, Prince Charles, has suggested that the monarch's “Defender of the Faith” title should be changed to “Defender of Faiths.”
Matters came to a head in this country in 1985 when Rajiv Gandhi – acting for exactly the same electoral reasons as Narendra Modi today – supported legislation seemingly to nullify the Supreme Court's judgment declaring that Muslim women were also entitled to maintenance under Section 125 of the Code of Criminal Procedure. As a result, G.M. Banatwala's private member's Shariat Bill became the Centre's Muslim Women (Protection of Rights on Divorce) Act.
This time, too, the Centre can claim to be responding to Muslim demands. It filed an affidavit before the Supreme Court on October 7 arguing against the practice of triple talaq after the Bharatiya Muslim Mahila Andolan and other Muslim women's organisations objected to it. The Law Commission then circulated a questionnaire to seek public opinion on a uniform civil code, which the All India Muslim Personal Law Board announced it would boycott. It accused New Delhi of trying to impose a “single ideology” on everyone.
Asaduddin Owaisi of the Majlis Ittehadul Muslimeen says enforcing a uniform civil code “will kill the diversity and plurality” of India. He believes that Dalit and Tribal customs and traditions are different from those of Hindus, but the government is targeting only Muslims. Against that, it must be said that there are pernicious features in many religions, many of which have been abandoned under official and societal pressure. The bulk of Hindus no longer practice sati. Child marriage has been virtually stamped out. Inter-caste marriage is much commoner. The dowry system has lost its crippling hold. Widow remarriage is no longer taboo.
It seems inexplicable that in the nearly 70 years since a uniform civil code was first mooted in the Constituent Assembly, no one has circulated a single cogent draft showing what it would actually entail. This is not just a minor detail or technicality. A uniform civil code would have to remove all trace of religion and custom in personal laws and hold all Indians, irrespective of whether they are Hindu, Muslim, Sikh, Jain, Christian, Buddhist, Jew or animist, to a neutral standard. On the other hand, it could simply redefine the word “Hindu” in the Hindu Code to include all other major religions, thereby extending Hindu law to all communities and making it the uniform national norm.
Both proposals meet the key requirement of being all-encompassing, that is, they deal with all aspects of personal law. However, there are many variations between the two. Proponents of a uniform civil code must be more sensitive to the possibilities and implications of choosing either or something in between. There are also loopholes and legal sleight of hand.
For instance, Section 3 of the final version of the Act on which Rajiv Gandhi and the Muslim Personal Law Board leaders agreed mentions a “reasonable and fair provision to be made and paid within the period of iddat” which roughly corresponds to 90 days. As the former Congressman, Mr Arif Mohamed Khan, at once realised when Ashoke Sen, the Union Law Minister, showed him the draft before placing it in Parliament, this overturned the MPLB's demand. The MPLB's “entire campaign had been that the Muslim husband's liability of maintaining his divorced wife was confined to the period of iddat, not beyond … This had been overturned by Section 3 of the Act, as it said the amount was to be fixed and paid within the iddat period, not for it. This meant the court could now decide on the amount to meet the future requirements of the divorced wife.”
Actually, this did happen in the Danial Latifi case when the Supreme Court creatively interpreted the Act and upheld the Shah Bano case verdict. Since then, maintenance has been granted to Muslim divorcees beyond the iddat period. But this wasn't widely appreciated then by the MPLB or Muslim clergy, and Sen apparently requested Mr Khan not to breathe a word of it.
It's often through such aberrations that lasting good is achieved. After all, the enactments that have to some extent changed Hindu practice were also passed over a period of time, and often after much agonising, discussion and debate in societal forums. They were part of the process of reform, of which the Brahmo Samaj of Raja Rammohan Roy and Acharya Keshub Chandra Sen, was in many ways the spearhead. Piecemeal reform is the most that can be expected while the authorities help to initiate a nationwide debate among Indian Muslims to decide how they can best live down the slurs of the Sachar Committee's findings.
