Should India have a Uniform Civil Code?
India has had a long history of personal laws. Till 1935, the Muslims in India followed different rules according to their practice. Khoja Muslims and Kutchi Memons are examples of this. The Kutchi Memons worshipped Hindu Gods and Ali is their tenth avatar instead of Kalki. They had the inheritance laws as per Hindus and also the marriage laws as per Hindus. When a common Muslim Personal law was formed, there were many minority creeds of Muslims who had to accept these laws though they differed from their practices. The Hindu laws, too were different in different parts of the country. However, they have undergone a turbulent change, courtesy, geographically united India. Child marriages were banned, Sati was banned, widow re-marriage was encouraged, divorce was introduced, and inheritance laws were amended. “Narabali” or human sacrifice, which was considered a religious practice of Hindus, was also banned.
When India attained independence and the issue of Uniform Civil Code (UCC) arose, much was debated at the Indian Parliament in 1948. While the founding father of our constitution and Chairman of the Constitution Draft Committee, Dr. B.R. Ambedkar, supported by eminent nationalists like Gopal Swamy Iyenger, Anantasayam Iyengar, KM Munshiji, Alladi Krishnaswamy Iyer and others favored the implementation of the Uniform Civil Code; it was strongly opposed by Muslim fundamentalists like Poker Saheb and members from other religions. On 23rd November 1948 a Muslim member, in Parliament, gave an open challenge that India would never be the same again if it tried to bring in Uniform Civil code and interfere with Muslim personal law. Earlier, the Congress had given an assurance that it would allow Muslims to practice Islamic personal Law and the architects of the Constitution, therefore, found a compromise by including the enactment of a Uniform Civil Code under the Directive Principles of State Policy in Article - 44. Distinguished members like Shri Minoo Masani, Smt. Hansa Mehta and Rajkumari Amrit Kaur put in a note of dissent saying that one of the factors that has kept India back from advancing to nationhood has been existence of personal laws, based on religion, which keep the Nation divided into watertight compartments in many aspects of life. They were strongly in favour of the view that Uniform Civil Code should be guaranteed to the Indian people within a period of five to ten years. But even after sixty-one years, because of perverse secularism and perverted communalism, Uniform Civil Code has not come into being.
Uniform Civil Code and the Indian Constitution
No one in our country, our political leaders or individuals, have ever concentrated their efforts towards defining the Uniform Civil Code. All we know is that some common law covering issues relating to marriage, succession and property is called Uniform Civil Code but what these laws would be is anyone’s guess. Now, what does our Constitution say about Uniform Civil Code? In article 44, our constitution clearly specifies the UCC: "The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India". The constitution is thus, very clear that unless a uniform civil code is followed, integration cannot be imbibed. However, the fact is that it is only a “directives principle” laid down in the constitution and as Article 37 of the Constitution itself makes clear, the directive principles “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. This shows that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory. Hence, the debate on having a uniform civil code for India still continues. The demand for a uniform civil code essentially means having one set of laws that will apply to all citizens of India irrespective of their religion. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.
In the late 1980’s, an old and penurious woman, Shah Bano had knocked on the courts for justice after she felt she was wronged in the way her husband divorced her. She demanded alimony from her husband, who had abandoned her for another woman. According to Muslim law, Shah Bano was entitled to three months' maintenance after over 40 years of marriage. Years later the Supreme Court heard the matter and upheld her right to maintenance. While doing so, the court also referred to the need to enact a uniform civil code. An open and shut case, it should seem, but for the Bench's reference to the need for enacting a Uniform Civil Code since after all it was part of the Directive Principles enshrined in the Constitution which the nation was duty-bound to implement -- in due course. This seemingly innocuous event was a crucial moment in the nation's history. It sparked off a huge protest among Muslim leaders who accused the judiciary of interfering in their personal laws. Upset by what they felt was the judiciary's interference in their personal law in deciding the Shahbano case; the Muslim orthodoxy -- in the persona of Z A Ansari and Syed Shahabuddin -- convened what they knew best: street-level power. As the muezzin gave the call of Islam in danger, the masses thronged the streets. In the face of a communal revolt, the Congress government brought legislation overturning the Supreme Court verdict. The BJP seized on the moment and launched its campaign for a UCC.
Yet, in July 2003, another innocuous case came before the Supreme Court of India, seeking to strike down Section 118 of the Indian Succession Act which prevents Christians from willing property for charitable and religious purposes, and the Bench has again while regretting the government's inability to enact a Uniform Civil Code, struck down the Section declaring it to be unconstitutional.
Thus, as seen above, the apex court has on several instances directed the government to realise the directive principle enshrined in our Constitution and the urgency to do so can be inferred from the same. The question therefore arises: “Will religious orthodoxy and the lumpen once again join hands to scuttle what is a progressive and essential measure, after painting it as an attack on established religion?”
Under the Preamble to the Constitution of India the people of India have solemnly resolved to secure all its citizens, besides, social, economic and political justice; equality of status and opportunity, assuring the dignity of the individual and the unity and integrity of the nation. Article 14 (as a fundamental right) guarantees equality before the laws and equal protection of laws. Under the Article 15 it is guaranteed that the State shall not discriminate against any citizen on grounds of religion, caste, sex etc. Article 13 provides that all laws in force in the territory of India before the commencement of the constitution, so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency be void. And Article 44 of the Directive Principles of State Policy provides that the State shall endeavour or secure for the citizens a Uniform Civil Code throughout the territory of the country. In view of the above provisions the questions arise as to whether a Mohammedan woman married or divorced who is a citizen of India gets equality of status and dignity, treated equally before the laws and not discriminated only on the ground of sex, under the Muslim Personal Law (Shariat) Application Act, 1937 and whether the same is not inconsistent with the fundamental rights guaranteed under the Constitution and not void under Article 13 of the Constitution? If so, how long should the country wait to enact a Uniform Civil Code to secure and protect all that and the unity and the integrity of the nation?
Need for a Uniform Civil Code
The need for uniform civil code has been felt for more than a century. The country has already suffered a lot in the absence of a uniform code for all. It is rather a pity that the longest and most elaborately written constitution in the history of mankind, the Indian constitution is responsible for creation of erosion in society. The society has been fragmented in the name of religions, sects and sex. Even at present, in India, there are different laws governing rights related to personal matters or laws like marriage, divorce, maintenance, adoption and inheritance for different communities. The laws governing inheritance or divorce among Hindus are thus, very different from those pertaining to Muslims or Christians and so on. In India, most family law is determined by the religion of the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. Muslim law is based on the Shariat; in all other communities, laws are codified by an Act of the Indian parliament. There are other sets of laws to deal with criminal and civil cases, such as the Criminal Procedure Code (CrPC) and the Indian penal code. The multifarious castes and creeds and their sets of beliefs or practices are bewilderingly confusing and nowhere is a scenario like in India, of various personal laws jostling together, allowed.
Does India need the Uniform Civil Code? Of course, it does. Even Italy has one, as do the rest of the developed world. It is high time that India had a uniform law dealing with marriage, divorce, succession, inheritance and maintenance. But, it must be realized that the scenario in India is extremely complex. India has a long history of personal laws and it cannot be given up easily. Unless a broad consensus is drawn among different communities, the Uniform Civil Code can’t do much good to the country. The reality in India is much more complex than Western societies which have been totally secularised. The need is to work on the existing laws in such a way that they don’t go against any particular faith or religion.
A Uniform Civil Code administers the same set of secular civil laws to govern different people belonging to different religions and regions. This supersedes the right of citizens to be governed under different personal laws based on their religion or ethnicity. The common areas covered by a civil code include:
# Personal Status
# Rights related to acquisition and administration of property
# Marriage, divorce and adoption
Uniform Civil Code will in the long run ensure Equality. While other personal laws have undergone reform, the Muslim law has not. It perhaps makes little sense to allow Muslims, for example, to marry more than once, but prosecute Hindus or Christians for doing the same. Therefore, there is the demand for a uniform civil code for all religions.
Also, UCC will help to promote Gender equality. Several liberals and women’s groups have argued that the uniform civil code gives women more rights.
However, the opponents of UCC argue that this law is poking into their religious practices. They feel that this code will affect the religious freedom of minorities. One fails to understand how abiding the law of land can go against religious principles! The claim that the sentiments of the minorities are not considered while implementing a common law is thus beyond comprehension. UCC does not insist people from one religion to start practicing rituals of other religions. All it says is, with changing living styles along with the time, there should be a Uniform Civil code irrespective of all religions as far s social ethics are concerned.
The crusade for the implementation of the Uniform Civil Code and homogenizing the personal laws is justified and should receive the support of all progressive thinking Indians, not because of any bias, but because it is the need of the hour. But it needs to come on the heels of a political consensus and that is what needs to be evolved. It is rightly believed that the Uniform Civil Code is necessary to effect an integration of India by bringing all communities into a common platform which at present is governed by personal laws which do not form the essence of any religion. India as a nation will not be truly secular unless uniformity is established in the form of rational non-religious codified laws.
Politics apart, the case for a Uniform Civil Code - which will cover the entire gamut of laws governing rights relating to property, marriage, divorce, maintenance, adoption and inheritance - has been most argued on behalf of women. There is universal agreement that personal laws, regardless of the community, are skewed against women. In the long sittings of the Constituent Assembly, it seems none had a notion about the injustice that was being done to women in the name of religion as also to the majority community by retaining certain customs among the minority communities and by giving them certain privileges. A uniform code provides equal rights to men and women. The absence of a uniform code is thus responsible for one calamitous vicissitude in the nation — the subjugation of women in almost all the faiths.
One reason why personalized laws based on religion is not favoured is because religious laws tend to be highly gender biased. Most major religions developed, over time, a bias towards women - treating them as somewhat inferior. In Christianity, Eve was meant to be the root cause of all evil. In Hinduism, Sati was practiced in some communities for ages till the British formally put a stop to it. The practice of dowry and the ill treatment of widows continue till today in many regions. In Islam, the staunchest Muslims don’t let women travel alone, wear something revealing or go to work. These are just a few examples of the deep underlying biases that lie within faiths. Such practices are justified via religious texts or customs that simply “must not be broken”. It has taken generations of rebellion to inculcate any change within these religions. Also, religious laws cannot be viewed objectively. They are created from sentiments regarding what is correct according to conceptions of God. Thus to alter such a law one also has to change perceptions regarding core religious fundamentals. As a result, true progress in terms of equality can be hindered by many years.
Let us take a look into the case of Imrana – a 28 years old woman, and the mother of five children. On June 6, 2005, Imrana, was raped by her 69 year-old father in-law Ali Mohammad. Soon after she was raped, a local Muslim panchayat (council of elders) asked her to treat her husband Nur Ilahi as her son and declared their marriage null and void! Can any law of the land justify this?
The fact that such a verdict could take place in India in the year 2005 is insulting to our legal system. Had she been a Hindu or Christian, such a verdict would not have occurred, further highlighting the inequality of the situation. In India, secularism has come to mean “non-intervening in the matter of religion.” This needs to be relooked and debated as there cannot be any discrimination in the guise of secularism.
The freedom to adopt any religion is enshrined in the Constitution. It seems quite an innocent and logical right. But from it springs the natural corollary of preaching and propagating a religion. In an educated society, it has no serious bearings but, in an illiterate and uneducated society, it has very grave consequences, especially when the whole game is politicized. The politicization results in appeasing the minority by giving them certain rights ultimately to catch their votes or to gain their sympathy. Secular India has upheld the freedom of religion at the cost of national unity. The interpretation of laws, in the absence of a uniform code for all religious communities debars other religious communities from becoming a party to the case in the court in which an appeal is made to restrain the religious heads from harassing the members of that community. A friend, an organization, even a brother is not accepted a party against injustice if he/she/it does not belong to that faith. The absence of a common code has thus, deprived the people of having a common cause and is responsible for the subjugation of reformers in the name of religion in the biggest so-called secular nation.
Furthermore, the perception that a uniform civil code would change only Muslim personal law is wrong, and probably came about because the Rashtriya Swayamsevak Sangh (RSS) is the only political party that actively supports it. Orthodox practices in Hindu personal law or Christian personal law will also have to undergo changes. For instance, the law pertaining to succession among Hindus is unequal in the way it treats men and women. The concept of the “Hindu undivided family”, with respect to succession, would be changed under a Uniform Civil Code. Christian personal law does not allow the succession of wealth to charitable organizations. Under a Uniform Civil Code, this law may very well be altered. This also explains why historically changes in personal law have been resisted not just by one community, but by the ruling orthodoxy in all of them.
Moreover, many Islamic countries have codified and reformed Muslim personal Law to check its misuse. Muslim countries like Egypt, Turkey and even Pakistan have reformed their laws. Terence Farias, in his chapter The Development of Islamic Law points out that the 1961 Muslim Family Law Ordinance of Pakistan "makes it obligatory for a man who desires to take a second wife to obtain a written permission from a government appointed Arbitration Council." The interesting point regarding Pakistan is that until 1947 both India and Pakistan had governed Muslims under the Shariat Act of 1937. However, by 1961 Pakistan, a Muslim country had actually reformed its Muslim Law more than India had and this remains true today. There is no reason why India should continue with vastly discriminatory personal laws. In fact, the reforms meted out in Tunisia and Turkey helped abolish Polygamy. Polygamy has also been either banned or severely restricted in Syria, Egypt, Turkey, Morocco, Iran and even in Pakistan. Besides Muslims who live in U.S.A., Australia, U.K. and other parts of Europe readily accepted the civil laws applicable uniformly to all citizens in the respective countries but do not feel insecure on that account. So, then, why, in India should there be such a feeling? Iran, South Yemen, and Singapore all reformed their Muslim laws in the 1970s, although Iran appears to have backslid in this respect. In the end the argument is quite clear.
If Muslim countries can reform Muslim Personal Law, and if western democracies have fully secular systems, then why are Indian Muslims living under laws passed in the 1930s?
The real social opposition each time has come from the Muslim community that sees any attempt to bring a UCC as an attack on its religious rights. The debate in India seems to have gone the way of the secularists in this respect and the recent rulings by the Supreme Court calling for a Uniform Code has not witnessed the protests and alarms that took place following the Shah Bano case in 1985. It is quite possible that the Muslim community sees a Uniform code as a fait accompli after almost 60 years of Indian independence. The matter is far more political than legal. Every time the issue has come up there have been angry words from both sides of the debate.
Religious fundamentalism must go, social and economic justice must be made available to the Muslim women and other women and their dignity and quality be ensured, basic human rights guaranteed and there should be an end to exploitation of Muslim women.
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