Articles regarding Uniform Civil Code
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Commission on Policy, Governance and Public Witness, NCCI
October 18, 2016
Deciding issues of personal law
The Supreme Court can and must make a pronouncement on the widely excoriated practice of triple talaq
Wajahat Habibullah, a retired civil servant, has served as Chief Information Commissioner and Chairperson of the National Commission for Minorities.
Thirteen years ago, Justice V.R. Krishna Iyer, pleaded in a piece titled ‘Unifying personal laws’ in The Hindu (September 6, 2003): “My powerful plea is that the personal laws may be reformed from within, without a quantum leap into a common code. Remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics.” The issue described as ‘triple talaq’ has unnecessarily been confused with the issue of a uniform civil code, thus thrusting India’s minority Muslim community into the defensive. But this dilemma is essentially a question of whether the Supreme Court can pronounce on an issue of personal law. It is my case that it not only can, but must.
Ruling in the Shah Bano case
The last time that Supreme Court sought to rule in a matter concerning personal law was in 1985 resulting in what has come to be known as the Shah Bano amendment. Shah Bano was married to Mohammed Ahmad Khan, an affluent and well-known advocate of Indore, Madhya Pradesh, in 1932. The couple had five children but after 14 years of marriage Khan took a younger second wife. For a time he lived with both, but when Shah Bano was 62, she was thrown out together with her five children. In April 1978, Khan even stopped giving her the paltry Rs.200 per month that is said to have been promised.
With no means to support herself and her children, Shah Bano petitioned a local court in Indore against her husband citing Section 125 of the Code of Criminal Procedure (CrPC), asking for maintenance of Rs.500 for herself and her children. Khan’s response: in November 1978 he pronounced an irrevocable talaq (divorce), taking the defence that hence Shah Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her except as prescribed under the Islamic law, which was her mehr, promised on marriage, Rs.5,400 in all. While courts at different levels directed payment of different sums, all a mere pittance, holding that Section 125 of the CrPC applies to Muslims, in 1980 Khan took the matter in appeal before the Supreme Court claiming that Shah Bano was no more his responsibility because he had a second marriage, which was permissible under Islamic law.
The Supreme Court of India — in a two-judge Bench of Justices Murtaza Fazal Ali and A. Varadarajan who first heard the matter — held in light of the earlier decisions of the court that Section 125 of the CrPC did indeed apply to Muslims, referred Khan’s appeal to a larger Bench. Some Muslim quasi-religious bodies, namely the All India Muslim Personal Law Board (AIMPLB) and Jamiat Ulema-e-Hind, joined the case as intervener.
The matter was then heard by a five-judge Bench chaired by Chief Justice Y.V. Chandrachud and comprising Justices Ranganath Mishra, D.A. Desai, O. Chinnappa Reddy and E.S. Venkataramiah. In a unanimous decision of April 23, 1985 in Mohammed Ahmed Khan v. Shah Bano Begum and Ors. (1985 SCR (3) 844), the Supreme Court dismissed Khan’s appeal and confirmed the judgment of the high court. It held unequivocally that “there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself”. There was no doubt, held the apex court, that the Koran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Besides, Section 125 of the CrPC applies to all regardless of caste or creed. So Shah Bano had the right to be given maintenance money, similar to alimony. The court also went on to discuss the desirability of bringing a uniform civil code in India, holding that a common civil code would help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.
The clergy backlash
This judgment was vigorously criticised by the Muslim clergy. I was at the time a Director in the Prime Minister’s Office (PMO), dealing with matters concerning the minorities. I found on my table a slew of petitions and letters criticising the judgment and seeking government intervention to overturn a ruling which in their view irreparably compromised Muslim Personal Law. The principal spokesmen for the clergy were Obaidullah Khan Azmi and Syed Kazi, founding members since 1973 of the AIMPLB, which was set up to safeguard Muslim Personal Law was enacted. But on my table were letters, petitions, and memoranda from organisations of Muslim clerics from across the country.
The source of Muslim Personal Law in India is the Muslim Personal Law (Shariat) Application Act, 1937, a law that is a colonial anachronism enacted to win over the Muslim clergy from what was, thanks to the legacy of the war of 1857, a Muslim population largely hostile to the British. As acknowledged in the Statement of Objects and Reasons of the Act, it was in fact moved by the Jamiat Ulema-e-Hind, described in the Act as the “greatest Moslem religious body”.
In my note on the file, I had pointed out that the representations received were primarily from the clergy and seemed to arise from an apprehension that the ascendancy granted to them by the 1937 Act in matters concerning social relations amongst Muslims was under threat. And indeed the law does state in Section 2 that in matters concerning “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 mubaraat, maintenance, dower, guardianship, gifts, trusts 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”. But I advised that the apex court had arrived at its decision after due reference to the provisions of the Koran. The government must respect the supreme character of that court and even if the arguments of the clergy in the matter are well founded, it is for the court to judge on their application, not the government and not the clergy. I suggested that a reply go to each of the petitions advising that the petitioners seek a review by the Supreme Court. The most that the government might do in this regard is to agree not to contest the review.
Roots of government intervention
It seemed awhile that this advice had been accepted, although no response was received to my suggestion that the PMO politely decline the request to intervene. Then one day as I entered Prime Minister Rajiv Gandhi’s chamber, I found M.J. Akbar sitting across his table. Rajiv smiled cheerily, “Come in, come in Wajahat, You are one of us.”
I found this greeting odd but was to discover the reason soon enough. Mr. Akbar had convinced Rajiv that if the government were not to contest the Shah Bano judgment, it would appear to the Muslim community that the Prime Minister did not regard them as his own. In what he perceived as the defence of their religious rights, Rajiv would show himself worthy of the support that the community had always placed in his family. This was the argument that Mr. Akbar developed in a Doordarshan debate with then-Minister Arif Mohammed Khan, in which Mr. Khan had argued that the Koranic provision or lack of it for maintenance was neither a compulsion nor closed to interpretation. But Mr. Akbar, more westernised, had argued that the Muslims needed the reassurance that only an amendment could bring.
A setback for Muslim women
The Muslim Women (Protection of Rights on Divorce) Act was adopted in May 1986 and nullified the Supreme Court’s judgment in the Shah Bano case. The Statement of Objects and Reasons of this Act clarifies that when a Muslim divorced woman is unable to support herself after the iddat period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Wakf Board to pay the maintenance. The ‘liability’ of the husband to pay maintenance was thus restricted to the period of the iddat only.
The consequences of this Act are open to debate. Yet the message that it brings home is that the application of the usual law, as enunciated by the Supreme Court, would have been of greater benefit and extended to the Muslim woman the rights granted to other Indians. Worse, the Act generated a conflict of interest between the two principal religious communities of India, fostering hostility against each other and the government.
In today’s vitiated communal environment it would be best if the apex court were to take on the responsibility of interpreting the law in light of the widely excoriated practice of triple talaq, which in the view of many practising Muslims is not the law.
July 16, 2016
Why not a Common Civil Code for all?
A set of laws to govern personal matters of all citizens irrespective of religion is the cornerstone of true secularism. It would help end gender discrimination on religious grounds and strengthen the secular fabric
- Venkaiah Naidu is Minister for Urban Development & Information and Broadcasting, Government of India
The recent progressive decisions of the Shani Shingnapur and Trimbakeshwar temple trusts to allow entry of women in the wake of a series of protests constitute a welcome development in what has been a long march towards gender equality. They also served to rekindle a countrywide debate on ending widespread gender discrimination, especially on religious grounds. It is a matter of concern that close to seven decades after Independence, women continue to battle discrimination in matters of religion even as they march shoulder-to-shoulder with men in various fields.
Perhaps, the time has come for us to take a close, hard look at the Goa Family Law and see if it could be emulated in the rest of the country. The Portuguese Civil Code of 1867 was continued in Goa after its liberation, and it should be the model for other States. The progressive law provides for equal division of income and property regardless of gender between husband and wife and also between children. It is also applicable in the Union Territories of Dadra and Nagar Haveli and Daman and Diu.
Importance of a Common Code
A Common Civil Code that would put in place a set of laws to govern personal matters of all citizens irrespective of religion is perhaps the need of the hour. It is, in fact, the cornerstone of true secularism. Such a progressive reform would not only help end discrimination against women on religious grounds but also strengthen the secular fabric of the country and promote unity. However, it can be implemented only when there is wide acceptance from all religious communities after discussing all the pros and cons as no decision, however reformatory, could be thrust on the people without their acceptance. All misgivings would have to be squarely addressed for progress to be achieved on this count.
In fact, Article 44 of the Constitution declares that the state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. During the debate in the Constituent Assembly, Dr. B.R. Ambedkar, while supporting the need to frame a Uniform Civil Code, expressed the hope that its application might be purely voluntary. He also said: “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequities, discriminations and other things which conflict with our fundamental rights.” Babasaheb’s pragmatic words are of great relevance to the Indian social context today.
While there is a criminal code which is applicable to all people irrespective of religion, caste, tribe and domicile in the country, there is no similar code when dealing with respect to divorce and succession which are governed by Personal Laws. The Uniform Civil Code seeks to administer the same set of secular civil laws to govern all people.
Repeated judicial reminders
In 1985, the Supreme Court ruled in favour of Shah Bano, who had moved the apex court seeking maintenance under Section 125 of the Code of Criminal Procedure after her husband divorced her. The then Chief Justice, Y.V. Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. The Court directed Parliament to frame a Uniform Civil Code.
In the Sarla Mudgal v. Union of India (1995) case, the Supreme Court had observed: “Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said, ‘I do not think that at the present moment the time is ripe in India for me to try to push it through’. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80 per cent of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of Uniform Civil Code for all citizens.”
In the John Vallamattom v. Union of India case in 2003, Chief Justice V.N. Khare had observed: “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country.”
In fact, the Supreme Court in October 2015 said there was total confusion due to various Personal Laws and sought to know if the government was willing to implement a Uniform Civil Code. It observed: “What happened to it? Why don’t you (the government) frame and implement it?” However, the apex court later declined to direct Parliament to bring in a Uniform Civil Code while allowing a PIL filed in this regard to be withdrawn.
A secular project at heart
Several eminent people, representing diverse fields, have put forth different arguments against the introduction of a Common Civil Code. The most common refrain has been that even the British did not try to codify Personal Laws based on religion and any attempt to bring in a common codification of laws would be tantamount to the state’s interference in religious affairs, particularly of the minorities. Nothing can be farther from truth. It would be apt to remember the words of Mahatma Gandhi, who once said: “We should get out of the miasma of religious majorities and minorities.” That, in reality, would be the precise endeavour of such a unified code. If one were to be wedded to rigid and bigoted views, why should there be any statutes and changes in them in sync with the times? As a society evolves, it enacts laws which protect and safeguard the rights and interests of all its citizens.
Contrary to a sustained campaign of misinformation, the whole concept of a Common Civil Code is not aimed against any particular religion or its customs, but to prevent oppression in the name of religion. It would naturally be based on internationally accepted principles of jurisprudence and would go a long way in providing a sense of security to people of various religious denominations.
Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan, in a letter to Prime Minister Narendra Modi in November 2015, observed: “From the Shah Bano case in 1985 till date, Muslim women have never been heard in matters concerning their lives thanks to the politics in our country. Certain orthodox and patriarchal males have… stonewalled any attempt towards reform in Muslim personal law. In the process, Muslim women have been denied their Quranic rights as well as their rights as equal Indian citizens. Almost all Muslim countries the world over, such as Morocco, Tunisia, Turkey, Egypt, Jordan and even Bangladesh and Pakistan in our neighbourhood, have codified personal laws governing marriage and family matters… Indian Muslims are denied this opportunity. As a result, we see instances of triple talaq and polygamy in our society.” They further stated that they had just published national research findings “with a primary sample of 4710 Muslim women across 10 states. An overwhelming 92.1% women want a total ban on oral/unilateral divorce and 91.7% are opposed to polygamy. 83.3% women said that codification of Muslim family law will help Muslim women get justice”.
It was also mentioned that BMMA had prepared a draft Muslim Family Law based on Koranic tenets concerning the age of marriage, mehr, talaq, polygamy, maintenance, custody of children etc. The important provisions of this draft law include a minimum marriage age of 18 for girls and 21 for boys and that the consent of both parties must be obtained without force or fraud, minimum mehr to be equivalent of one full annual income of the groom to be paid at the time of nikah. Further, it said that Talaq-e-Ahsan should be adopted as the method of divorce requiring mandatory arbitration over a 90-day period, oral unilateral divorce to be declared illegal, polygamy to be declared illegal, daughters to get equal share as sons through hiba or gift deed or will, compulsory registration of marriages, and the qazi to be held accountable for violations during talaq, polygamy and other such matters.
From Shah Bano to Shayara Bano, who recently filed a PIL in the Supreme Court, the focus has been on gender-friendly reforms of Personal Laws. With changing times, the need has arisen for having a Common Civil Code for all citizens, irrespective of religion, ensuring that their fundamental and constitutional rights are protected. Nobody need have qualms on this count. While emphasising that the foundations of secularism would only get further strengthened by introducing a Common Civil Code, I would like to recall the words of Mahatma Gandhi: “I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side-by-side with one another.”
With the government seeking the opinion of the Law Commission to examine all aspects pertaining to Uniform Civil Code, the time has come for an enlightened debate in the country to arrive at a consensus at the earliest.
July 15, 2016
It isn’t about women
The talk of a Uniform Civil Code has nothing to do with gender justice. It has entirely to do with a Hindu nationalist agenda to ‘discipline’ Muslims
Nivedita Menon, a feminist scholar, is a professor at Jawaharlal Nehru University, New Delhi.
For nearly eight decades, the women’s movement has discussed and debated the desirability and feasibility of a Uniform Civil Code, and has ended up posing a simple question — what is the value of uniformity? Is it for the “integrity of the nation” that uniformity in laws is required, as some judicial pronouncements have suggested? If so, who exactly is the beneficiary? Which sections of people benefit from “integrity of the nation”, that abstract entity which is not exactly at the top of your mind as your husband throws you out on the street?
Or are uniform laws meant to ensure justice for women in marriage and inheritance? In that case, a Uniform Civil Code would simply put together the best gender-just practices from all Personal Laws. So yes, polygamy and arbitrary divorce would be outlawed (a feature derived from Hindu Personal Law). But conversely, as feminist legal activist Flavia Agnes has often pointed out, a Uniform Civil Code would require the abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to Hindus, and all citizens of India would have to be governed by the largely gender-just Indian Succession Act, 1925, currently applicable only to Christians and Parsis.
A stick to beat Muslims with
Muslim Personal Law is already modern in this sense, since it has since the 1930s enshrined individual rights to property, unlike Hindu law, in which the family’s natural condition is assumed to be “joint”. In the decades of the 1930s and 1940s, contrary to later discourses about Muslim law being backward, it was Hindu laws that were considered “backward” and needing to be brought into the modern world of individual property rights.
Again, since the Muslim marriage as contract protects women better in case of divorce than the Hindu marriage as sacrament, all marriages would have to be civil contracts. Mehr, in Muslim Personal Law, paid by the husband’s family to the wife upon marriage, is the exclusive property of the wife and it is hers upon divorce, offering her protection a Hindu woman do not have. So, the Uniform Civil Code would make the practice of mehr compulsory for all while abolishing dowry.
The patent absurdity of these suggestions arises not from the ideas themselves, but from the fact, recognised by everybody, that the talk of a “Uniform Civil Code” has nothing to do at all with gender justice. It has entirely to do with a Hindu nationalist agenda, and is right up there with the beef ban and the temple in Ayodhya. A Uniform Civil Code is meant to discipline Muslims, teach them (if they didn’t know it already) that they are second-class citizens, and that they live at the mercy of “the national race” (the Hindus), as M.S. Golwalkar decreed.
The real issue of gender justice
So let us pose the question differently — who suffers in the absence of a Uniform Civil Code? Is it Muslim women, victims of polygamy and triple talaq, as Hindutvavadi wisdom has it? But for decades, feminist legal practice has successfully used both the Protection of Women from Domestic Violence Act, 2005 — that is available to all Indian citizens regardless of religious identity — as well as the Muslim Women (Protection of Rights on Divorce) Act, 1986, to deal with polygamy and triple talaq, and to obtain maintenance, child custody and rights to matrimonial home for countless Muslim women. In addition, feminist legal activists have used the landmark Shamim Ara v. State of U.P. (2002) ruling to buttress their claim that arbitrary triple talaq is invalid.
Moreover, polygamy is not exclusive to Muslims. Hindu men are polygamous too, except that because polygamy is legally banned in Hindu law, subsequent wives have no legal standing and no protection under the law. Under Sharia law, on the contrary, subsequent wives have rights and husbands have obligations towards them. If gender justice is the value we espouse, rather than monogamy per se, we would be thinking about how to protect “wives” in the patriarchal institution of marriage. “Wives” are produced through the institution of compulsory heterosexual marriage, the basis of which is the sexual division of labour. This institution is sustained by the productive and reproductive labour of women, and almost all women are exclusively trained to be wives alone.
Thus, when a marriage fails to fulfil its patriarchal promise of security in return for that labour, all that most women are left with is the capacity for unskilled labour. Or they remain trapped in marriage with children to provide for, while men marry again, legally or otherwise, producing still more dependent, exploited wives and children for whom they take no responsibility. If gender justice is the point of legal reforms, the centrality and power of the compulsory heterosexual, patriarchal marriage, and the damage it can do to women, is what must be mitigated. This would mean recognising the reality of multiple “wives” as a common practice across communities, and the protection of the rights of all women in such relationships.
In this sense, recent Supreme Court rulings that have granted rights to second wives in Hindu marriages dilute the legal standing of monogamy for Hindus but empower women.
A survey conducted by the Bharatiya Muslim Mahila Andolan, a significant voice in the debate, found that more than 90 per cent of Muslim women in India want a ban on “triple talaq” and polygamy in Muslim Personal Law. That is, the demand is made within the framework of codifying Muslim Personal Law, not in favour of a Uniform Civil Code, partly because there is no clarity on what a uniform code would look like, but also because the demand comes from clearly Hindutvavadi quarters which have shown that both women and minorities are expendable for them.
Lessons from the Goa experience
The only example of a uniform code in India is the Portuguese Civil Procedure Code (1939) of Goa, which is neither ‘uniform’ nor gender-just. Marriage laws differ for Catholics and people of other faiths, and if a marriage is solemnised in church, then Church law applies, permitting, for example, arbitrary annulment at the behest of one of the parties. The “customs and usages” of the Hindus of Goa are recognised, including “limited” polygamy for Hindus.
The positive aspect of Goa’s Civil Code is the Community Property Law, which guarantees each spouse 50 per cent of all assets owned and due to be inherited at the time of marriage. However, this provision can be sidestepped in practice, given the power relations in a marriage, and studies show that it has not made any impact on the incidence of domestic violence.
Clearly, if gender justice is not prioritised, both uniformity as well as its dilution can reinforce patriarchy and majoritarianism.
The woman at the centre of this recent round of debate on the Uniform Civil Code is Shayara Bano, who received talaq by post. Her lawyer, instead of using any of the three recourses available discussed above — the Protection of Women from Domestic Violence Act, 2005, the Muslim Women (Protection of Rights on Divorce) Act, 1986, or the citation of the Shamim Ara v. State of U.P. (2002) judgment — decided to file a Public Interest Litigation in the Supreme Court challenging triple talaq on the grounds of violation of Fundamental Rights. Ms. Bano is now in the media spotlight, spiritedly criticising patriarchy in the Muslim community.
Revealingly, a recent interview with her in a national newspaper concluded with a startling question — “What about the ‘Bharat Mata ki Jai’ slogan controversy?” Ms. Bano replies, “I feel all Muslims should say Bharat Maa ki Jai.”
Does the question seem irrelevant in the context of Ms. Bano’s fight for personal justice? What does compulsory chanting of “Bharat Mata ki Jai” have to do with a woman fighting patriarchy?
But the question does not seem irrelevant at all; it seems to be at the heart of the interview. This alone should alert us to what the demand for a Uniform Civil Code is actually about.
July 18, 2016
On a Uniform Civil Code
Nivedita Menon’s article on a Uniform Civil Code (“It isn’t about women”, July 15), states that “since the Muslim marriage as contract protects women better in case of divorce than the Hindu marriage as a sacrament, all marriages would have to be civil contracts….” This is not only fallacious but also factually incorrect. A UCC need not necessarily mean the selection of one practice that would be enforced upon all Indians, which is the foundational assumption of this article. In Hindu law, courts have laid down that different local traditions and customs would be respected, even if it results in a departure from the letter of the law. What the UCC would actually be — assuming that such a code is even a possibility at this stage — is a set of standard principles bringing about certain reforms to all branches of personal law collectively. A brief look at efforts to introduce reforms to personal law show that Hindu law has been reformed the most since Independence and not because of a lack of effort on the part of parliamentarians in bringing about reforms in other branches of personal law. This has been explained by Prof. Faizan Mustafa as a “minority psyche” created by events such as Ayodhya and Shah Bano. Therefore, the writer’s assertion that one form of marriage is “better” for the woman and hence applicable to all other marriages is preposterous.
Second, while Muslim marriage is widely understood to be a contract, with a small number of scholars saying that it attains religious value by virtue of being discussed in detail in the Koran, it has not proved to be better for the woman, at least in the Indian context. A perfect example of this would be the Shayara Bano case.
Devarsh Saraf, Hyderabad
I was astonished and perturbed to read Nivedita Menon’s article. I wonder how she states that the purpose of implementing a UCC is to teach a lesson to Muslims. I am afraid that statements like these only show her leanings and prejudices against the BJP. What has the present government done? It has only requested the Law Commission to study and report on the possibility of a UCC. In a secular country with multiple religious practices, this becomes all the more important since administration should be separated from religious practices. Religious personal laws completely negate this and are therefore anachronic to the secular state. It is another matter how the UCC should be, whether it is helpful to the cause of women and whether it will make religious groups lose the advantage they enjoy.
H.S. Gopala Krishna Murthy, Bengaluru
Nivedita Menon is right when she says that talk of a UCC has nothing to do with gender justice, but more about a Hindu nationalist agenda. Though Mr. Venkaiah Naidu has denied this in his article, “Why not a Common Civil Code for all?” (July 16), his arguments sound hollow. This does not mean that Muslims do not want any changes to be made. Muslim women in particular look forward to changes but within the confines of the Muslim Personal Law. It does not mean that they are opposed to Sharia laws or that they dispute religious injunctions. The matter is more social and economic than religious.
In economically backward Muslim families, there are countless instances of men who neither pronounce single or triple talaq nor just walk out of a marriage with impunity. The poor woman still bears the tag of being his wife, though deprived of every right of a wife. Right-wing activists and even some Muslim women activists end up being confused about these emerging voices demanding changes in Muslim Personal Law with a false perception that it is a demand for enforcing a Common Civil Code.
- Tahsin Ahmed, Bengaluru
July 13, 2016
Now is not the moment
A Uniform Civil Code, if brought in now, will be perceived as an apology for hegemony of Hindu laws over the personal laws applicable to Muslims and Christians — and justifiably so
K. Kannan is a former judge of the Punjab and Haryana High Court.
It is reported that the Union Law Minister has requested the Law Commission to examine the feasibility of ushering in a Uniform Civil Code. In all the debate about the Code, there is an assumption that it will pave way for national integration. The imperatives are traced to the constitutional provision of Article 44 that exhorts it as among the Directive Principles of State Policy.
There are several provisions in the Constitution which are transitory, such as the number of years of provision for reservation of seats for representation in the Parliament and the Legislative Assemblies (Article 334), the time frame when Hindi will substitute English as the lingua franca for official purposes (Article 343), and the special status to Jammu and Kashmir (Article 370). The withdrawal of special status to Kashmir in the present atmosphere will be an invitation to anarchy; reserved constituencies are absolutely essential for several more years to assure adequate political space for the Scheduled Castes/Scheduled Tribes; Hindi has still very little currency in the southern States.
The Uniform Civil Code, if brought in now, will be perceived as an apology for hegemony of the Hindu laws over the personal laws applicable to Muslims and Christians, and justifiably so. To B.R. Ambedkar at the time of initiating the dialogue and finalising the draft of the Constitution, it was the obvious choice, for he saw no merit in the role of religion in its application to personal laws. The truth is that personal laws are what we confront in our personal lives from birth to death, viz. laws of marriage, maintenance, adoption, custody, guardianship of children and succession. Religion is the first affinity at birth and it is carried through at one’s will through the laws that we recognise as personal to him/her. If we withdraw the personal laws by force, we trench upon the most intimate emotion of an individual. The argument often offered is that every other country does not have different personal laws, so why have it? Ask this question instead: we have different personal laws, how does it denigrate our national solidity? Any talk on Uniform Civil Code must come at such a time and in such a way that we have gradually moved towards assimilation of the very best from each of the personal law systems that exist.
Judicial interpretations as a tool
There is no one personal law which is complete and just in itself. What we cannot achieve through forced legislation, we are slowly achieving by seamless transition through secular laws. For instance, opposition to a private bill for uniform adoption law was thrown out by loud protests in Parliament some years ago. The apprehension of the Muslim community was that concepts alien to its socio-religious practices will march one after another if change in legislation is permitted in one field. It was a prospect of suffering forced indignity that was the cause for the opposition. The opposition by Christians was no less vociferous. When adoption was made possible through the Juvenile Justice Act, the Bombay and Madras High Courts adopted dynamic interpretations to hold that adoption under the Act will be applicable to Christians as well. Soon enough the Supreme Court ruled that Muslims could also adopt under the Act. Not a whimper of protest from any community!
Guardianship laws for Hindus and Muslims carry a bias towards the father as the natural guardian to a minor child. Judicial pronouncements on the paramount welfare consideration of the child and the decision in the Githa Hariharan case have largely straightened the slant and recognised the pre-eminent importance of a mother as a guardian irrespective of the age of the child, even beyond five or seven years of age. Where there have been seeming inequities in the application of laws for provision for maintenance being restricted only for the period of iddat for divorced Muslim women and the ease of dissolution of marriage through pronouncement of talaq, they have changed largely due to judicial pronouncements. Now under the law of the land, a divorced Muslim woman is entitled to provision for maintenance for a lifetime or until she is remarried, which shall be made within the period of iddat (Danial Latifi v. Union of India, 2001) — a long distance travelled from the attempt to annul the effect of the Supreme Court judgment in Shah Bano’s case by the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986; talaq shall not be valid unless preceded by an effort at rapprochement and strict rules of evidence about the pronouncement itself (Shamim Ara v. State of U.P., 2002). These judgments have blunted the injustice against whimsical acts of husbands.
Comparing personal laws
Look at the sheer superiority of some of the laws of one community over another. Take the law of succession. Under the Hindu Succession Act, the mother is a Class I heir and the father has no place in the presence of the widow and children. Under the Indian Succession Act, applicable to Christians, in the absence of lineal descendents, the father is an heir along with the widow and not the mother. Do you think that the law is unfair to the father in one case and to the mother in the other? Look at the Muslim law. Both the father and mother are primary heirs. Again, the grant of absolute right to property by succession to a female was not accepted for Hindus till 1956 when Section 14 assured such a right. This provision is the most abused provision by several machinations through pleas of oral partition, oral release, ouster and other things, by the male members of a Hindu family. This provision has probably generated the maximum litigation, the cause being the unwillingness of the Hindu patriarchy to cede to a female member an equal right in the property. Muslim law recognised full right to a woman since the days of Prophet Muhammad, several centuries before the whole of the modern West accorded to a woman property rights.
Examine the law of testamentary succession. Many of the litigations in court are fallouts of heartburn over disinheritance of widows or preference of sons over daughters. It is the unrestricted power of disposition through will that causes many a contest to the dispositions. Muslim law does not allow a bequest to more than a one-third outside-the-line succession without the concurrence of natural heirs and up to a two-thirds share with the consent of natural heirs. In the law applied in Puducherry as well as in Goa, where the Code Civil was applicable, the principle of legitime or quotité disponible caused a fetter to unlimited disposition and reserved a share compulsorily to legal heirs outside the power of disposition. Notwithstanding these salutary provisions, let us assume that the Indian Succession Act imposes a fetter of disposition through will to one-third or two-thirds as the case may be in the manner that the Muslim law recognises. What will be the first reaction? You will hear murmurs of minority appeasement instead of recognising it objectively as the desirable goal of litigation reduction and equitable distribution. The Bombay High Court has opined Section 15 of the Hindu Succession Act, preferring parents-in-law as heirs through husband to parents as heirs to a deceased woman, to be unconstitutional and called to aid the more just provisions under the Indian Succession Act applicable to Christians.
Marriage as a contract under Muslim law is more secular than retention of the concept of the marital bond as a sacrament in the Hindu and Christian communities. The provisions for divorce by mutual consent that have been introduced in the Hindu Marriage Act or under the Divorce Act applicable to Christians are actually a movement towards the Muslim understanding of marriages. Do you think that allowing up to four wives for Muslims requires a change? Shall we in the same breath make illegal even consensual adult relationships outside marriage or concubinage as cognisable offences?
Gradual changes, the way forward
The dynamics of social transformation through the instrument of law from diverse civil code to uniformity shall be gradual and cannot happen in a day. We cannot perhaps set a time limit but India shall be stronger by its multi-cultural, multi-religious differences and our national identity would be more secure in its diverse form than through a forced homogeneity of all personal laws. That shall take place by borrowing freely from laws of each other, making gradual changes in each of the pieces of legislation, making judicial pronouncements that assure gender equality, and adopting expansive interpretations for broadening the outlook relating to marriage, maintenance, adoption and succession by specifically acknowledging the benefit that one community secures from the other. Take up reforms in each personal law through independent initiatives, and we will have created laws that are uniform over a period of time. On this issue, what is seemingly centrist is ultra-right and what could be perceived as conservative is the balanced centre.
July 14, 2016
Uniform Civil Code
With numerous communities in India, numerous personal laws will only add to the complexity of the legal system, and a uniform law appears to be the only satisfactory way out (“Now is not the moment”, July 13). This calls for a change in mindset but given the complexities in India, it cannot be done in the blink of an eye. The right step would be to allow judicial processes determine the fate of regressive personal laws rather than forcing a false assumption of national integration on the minorities.
Smiti Yadav, Mohali, Punjab
The time may not be ripe for India to absorb a Uniform Civil Code in its entirety nor will we get the perfect moment. It will have to be the result of gradual change that Indian society absorbs while interpreting in different ways its multicultural diversity. All communities in this country will be willing to contemplate a change gradually rather than being forced to do so abruptly. It was the case for the past several decades after Independence where we saw many changes in personal laws aligning with universal laws.
On paper, a Uniform Civil Code may be possible with time but one wonders whether it can happen in reality. When the suggestion of a uniform code was first mooted, society was, by and large, united with hardly any fissures. Over a period of time, personal notions and religious preferences have undergone dramatic changes. Conversions, both forced and willing, have been accepted very grudgingly. Each religion nurses grievances against the other. A uniform code may have to alter the very basics of existing personal laws, which may be the reason why we may never be able to make much headway.Girijavallabhan Nair T., Palakkad
- Lakshmanan,Tirupur, Tamil Nadu
Mumbai, 18 Oct., 2016
Let Govt. present Uniform Civil Code draft: Indian Muslim intellectuals and leaders
Noted Muslim intellectuals, political and social leaders of the Muslim community expressed their serious concern that the Union government is trying to introduce a Uniform civil code (UCC) through the back door. They warned people of the country that the Law Commission’s questionnaire is a useless exercise. They said if the government is really serious, it should come out with a draft of the proposed UCC so that various segments of society may make up their mind about it.
The community Muslim leaders cautioned that there are hundreds of personal laws in the country and as such a UCC is impossible and impractical. They said it is clearly an attempt to gain political mileage ahead of the UP elections and to polarise voters. Leaders said that the best way to nullify the Law Commission’s questionnaire is not to ignore it but to reply to it in the negative. Letters of rejection should be written to the Law Commission so that these responses are on its record.
October 20, 2016
Uniform Civil Code a tool for BJP in Upcoming Elections
Sarwar Alam is based in Mumbai and can be reached at email@example.com
BJP, historically and strategically, is known for its communal tactics in elections. This party exhibits and validates its motto, times and again, that it is born and existing to ensure communal divide in united India. More than anything else, it bases its whole strategies and planks on communal and religious issues primarily and loudly. More often than not, they have succeeded in their advertent efforts, and that strengthens their belief of political success in India on the basis of communal and religious divide and discrimination. Nothing more requires to understand and describe the character of BJP than the fact of Rashtriya Swayamsevak Sangh (RSS) being their ideologue
Let alone history of Independent India which has remarkable communal milestones fabricated and achieved by BJP, this present tenure of theirs is full of conflagrated and boisterous communal events including man-slaughtering inter alia other boastful accomplishments. Since Mr. Modi occupied the office as PM, there have been series of events and incidents one after another, carried out by BJP directly or by their political offshoots, allies, and other hardcore Hindutva organizations. All communal parties and groups have raised their heads after BJP came in power as if they had been craving for this rule and India was no longer a secular and pluralistic country. The constitution seems irrelevant at many times and occasions in the present dispensation at the centre.
The series of events unfolded with Ghar-Wapsi and love Jihad followed by Beef row and slaughtering because of that, Ram Mandir, killings of Kalburgi, Dhabolkar, &Pansaare, suicide of Rohit Vemula, clamour and drama in JNU, Nationalism vs. Anti-nationalism, and now agenda of Uniform Civil Code. This government is exquisitely characterized and ornamented by such unruly and unwarranted furores. Each of these issues has been beautifully crafted and organized at some strategically important points of time. Like others, the agenda of Uniform Civil Code has been handpicked by BJP in view of upcoming assembly elections in UP, Uttarakhand, and Manipur. In Punjab, they have no chance of securing any respectable position. Mr. Modi and Mr. Shah have this outstanding and unique track record of exploiting any and every measures to win elections. And, therefore, given this quality, they are at the helm of power in Indian real politic. Gujarat is the most remarkable testimony of their skills of winning elections which culminated ultimately into putting them in top slots of power.
Despite several important and burning developmental and economic issues, the BJP government which came into power largely in the name of development of country chose instead to pick up communal, religious, and sentimental issues to instigate a section of Indian societies and fuel their communal frenzy in order to project and reaffirm their Hindutva image. Sans Hindutva image, BJP cuts a sorry figure with no developmental and progressive feathers in their cap. Same time the government knows its priority and expectation of people from them well, and therefore there have been smartly designed slogans like Swachh Bharat, Jan DhanYujna, Beti Bachao Beti Padhao, Digital India, etc. in between to push this fact of their accountability and discharge of responsibilities towards developmental expectation of Indian people in general. Although, their main agenda and prime strategy has been kindling the communal sentiment of their core voters by Hindutva cards.
Government has nothing commendable in terms of growth and development of country in last two years, so they needed this time again some powerful communal tool to consolidate Hindu votes in assembly elections of UP, Uttarakhand, and Manipur specifically. After losing Bihar, BJP doesn’t want to afford any sort of lapses which might result in electoral loss. In Bihar they failed mainly owing to non-consolidation of Hindu votes at large and the elections finally shaped into caste-orientation. If cast cards play prominence in UP this time, BJP will have to bite the dust which they know well. They require to turn the whole arena of these elections wherein votes should divide along religious lines, not castes. So, in order to consolidate Hindu votes they have discovered two very important and powerful tools—Surgical Strike and Uniform Civil Code.
Uniform Civil Code is the way to ensure the elimination of Muslim Personal Law, and this will reinforce the Hindutva image of BJP among their voters specifically and among Hindus in general. Muslim Personal Laws are codified under Shariat Application Act which came into force in 1937. The Shariat Application Act mandates aspect of Muslim social life such as marriage, divorce, inheritance, and family relations. These laws are neither hindrance to country’s growth nor are detrimental to Indian Constitution. But, why is BJP so interested in it? Because, they have to prove their being a Hindutva party. Muslim are specifically not having personal laws in India. There other laws for other communities like Hindu Succession Act of 1956, Parsi Marriage and Divorce Act of 1939, Hindu Marriage Act of 1955, etc. Freedom of Religion is part of Fundamental Rights which are guaranteed by the Constitution.
There are numerous more important issues to focus for the government. Recently India has ranked 97 out of 118 countries on the Global Hunger Index, and our PM doesn’t consider it significant and urgent enough to speak on, instead he is choosing to speak on Uniform Civil Code which doesn’t actually hamper India’s growth. Hopefully like Bihar, the voters of UP, Uttarakhand, and Manipur will understand the tact of BJP and disapprove of BJP’s communal and hatred planks in upcoming assembly elections.
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