By Hamda Akhtarul Arfeen
Uniform Civil Code (UCC) is mentioned in Article 44 of the Indian Constitution under the Directive Principles of State Policy (DPSP). The issue of Uniform Civil Code has been ignited by the question of the legality of Triple Talaq under Muslim Personal Law.
The Britishers framed the personal laws of India because they feared opposition from religious communities. This provision was added in the Directive Principle by the drafters of the Constitution because they felt ‘a need for same may arise in the future’. Leaders of Congress and All India Muslim Personal Board oppose the application of UCC in the country whereas the leaders of Bharatiya Janata Party (BJP) and Leftist support its application. A common family law, however, is applied in Goa.
History
Uniform Civil Code was one of the major issues debated during the writing of the Constitution, with arguments on both sides. However, unable to arrive at a result, a Directive Principle was struck regarding this in the Constitution.
With freedom in the country, the Constitution Draft Committee was formed. In the sub-committee for Fundamental Rights, the idea of a Common Civil Code was mooted. The seed was brought from Section 94 of the Canadian Constitution which made provisions for formation of a uniform set of civil laws and procedural laws in that country.
The insistence by some of the members, like K.M. Munshi, M.R. Masani, Hansa Mehta and Rajkumari Amrit Kaur, for inclusion of the idea of Uniform Civil Code as a fundamental right was more a fanatic appeal against the Muslim community than a rational desire of the citizens as a whole. The trauma left by the gory Partition made some otherwise sober Hindu leaders bitter against the Muslim community. An indirect attempt to invade the personal laws of Muslims in the garb of a Uniform Civil Code became their minimum programme.
The Sub-Committee rejected the proposal for making Uniform Civil Code a Fundamental Right. Fortunately, by then the framers of the Constitution contrived a device to include controversial and practically unenforceable subjects under the caption ‘Directive Principles of State Policy’.
But several members of the Constituent Assembly disagreed intensely with the compromise and argued that one of the factors that had kept India back from advancing to nationhood was the existence of personal laws based on religion which kept the nation divided into watertight compartments in many aspects of life.
Mohamad Ismail, a Member of the Constituent Assembly from Madras, opined that it would be “tantamount to interference with the way of life of those people who have been observing these laws for generations and ages”. Naziruddin Ahmad of West Bengal argued that it was not just Muslims — “each religious community has certain religious laws, certain civil laws inseparably connected with religious beliefs and practices”.
The Britishers understood the importance of religion in the life of Indians; that is the reason they preferred doing the tedious job of drafting personal laws rather than forcing them to follow a uniform code. The preservation of various cultures and their practices was a very huge factor for the success of India’s Independence.
The aspect that India would be a Democratic and Secular nation where people would be governed by their own set of personal laws was an important reason for people to choose India over its neighbouring country. Though Nehru and Ambedkar favoured the application of Uniform Civil Code, they were of the opinion that ‘the time is not right’.
But is India ready for a Uniform Civil Code now? Is the time right? Will the diversity of India survive under a common code?
Judicial Attitude over the Years
The judiciary has faced issues where the question of the need for application of UCC has arisen. But the judiciary never explicitly said about the application of UCC, but rather has ‘thrown the ball in the court of legislation’. Legislation has always maintained a dead silence about the issue until recently, when the issue of Triple Talaq was faced by the judiciary.
In Sarla Mudgal v. Union of India and others, it was observed: “Article 44 is based upon the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession, and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27.”
The personal law of Hindus relating to marriage, succession and like have all a sacramental origin, in the same manner as in the case of Muslims or Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of national unity and integration, while some other communities would not, though the Constitution enjoins establishment of a “Common Civil Code” for the whole of India.
The Shah Bano case raised the issue whether a Muslim woman is entitled to claim maintenance under Section 125 Cr.P.C. It was held that Muslim women are entitled to claim maintenance under Section 125 Cr.P.C. This is a secular provision and the benefit is available to every citizen irrespective of caste or religion.
It was further held that although Muslim law limits the husband’s liability to provide for maintenance of a divorced wife to the period of Iddat, it does not countenance the situation envisaged by Section 125 of the Code of Criminal Procedure. The Court held that it would be incorrect and unjust to extend the above principle of Muslim law to a case in which the divorced wife is unable to maintain herself.
After the judgment of Shah Bano case there was some unrest in the Muslim community. In consequence, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed which states that the husband is liable to pay maintenance to the wife during iddat.
Challenges of UCC
A Uniform Civil Code, if made, must be essentially uniform in its features. How far would we be able to frame a Civil Code for the whole country in near uniformity with minimal exceptions, given our cultural diversity so diverse and expansive?
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. The patent absurdity of these suggestions arises not from the ideas themselves, but from the fact, recognized 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.
A Uniform Civil Code is meant to discipline Muslims, teach them, if they did not 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.
Foremost trouble for putting into practice the UCC is the country’s multiplicity of religious laws, which not only differ section-wise, but by community, caste and region-wise.
Women’s rights groups have said that UCC is based on their rights and security, irrespective of its politicization. Indian nationalism is founded on the tag line ‘Unity in Diversity’. The warp and weft of our secular fabric is the harmonious existence of a massive amount of religions, languages, cultures and ethos.
It is quite natural that the imposition of a Civil Code would be called a raid on the personal laws of citizens when personal law has its roots in religion and religious practices. Any attempt at unification of personal laws can have the potential of eruptions in the social and political arena and the exercise of codification would be laborious; there are chances that it might hinder the religious freedom guaranteed by Article 25 of the Constitution of India.
Imposing the Uniform Civil Code would require amendment of not just Article 370 that grants special status to Jammu and Kashmir, Article 371A for Nagaland and Article 371G for Mizoram, but also a renegotiation of the agreements and treaties which saw the insertion of these Articles.
Likewise, personal law would have to be taken out of the Concurrent List and exclusive power given to Parliament to make laws so that States cannot make any variations to them.
The Indian diversity is not limited to religion. The Hindu Code, for instance, which codifies Hindu personal law, does not make it uniform for all Hindus. Crucial aspects such as the validity of marriage and decisions on adoption are left to custom. Likewise, regional variations in custom, such as succession rights in Tamil Nadu and Kerala, are not disturbed.
Even Islamic law is not a monolith and followers of different schools and sub-sects have their own individual customs and practices which are different from each other. There is no precedent in India to show that the abolition of heterodox, diverse customs and practices related to personal law will necessarily have positive results.
Flavia Agnes, a prominent legal scholar and director of the Majlis Legal Centre, said: “The enforcement of a UCC cannot be viewed in a simplistic manner as outlawing ‘polygamy and triple talaq’ among the Muslims. The issue is far more complex and would require a detailed analysis of the gaps in the existing laws of all communities, from the perspectives of women’s empowerment.”
The NDA’s stance on the conservative practice of triple talaq lends itself to scrutiny. So does the Law Commission’s public outreach on the Uniform Civil Code (UCC). In politics, intent is as important as the objective. Then comes the way a political move is timed — and by whom?
Irrespective of its progressive intra-community dimension, the triple talaq-UCC discourse is viewed as regressive by Muslims in Kashmir and elsewhere. They suspect not just the intent but also the timing of the debate that has found official resonance after the surgical strikes and before polls in Uttar Pradesh and Punjab.
Dr. Subrata Mukherjee, former professor of political science in Delhi University, said: “The NDA’s silent on disparities in the Hindu society but cites constitutional provisions to reform Muslims. The intention is political, not social; the objective electoral.”
Joseph Dias, general secretary of Catholic Secular Forum, is strongly opposing UCC, as he feels it is a political move. Dias told Mumbai Mirror: “The State cannot encroach upon the religious freedom given by the Indian Constitution. If necessary, we can amend the present codified laws but there is no need of a new law.”
A large section of Hindu society practices different religious ethos in different places. So it is for the government to decide whether it is trying to create anarchy or is really interested in serving the people. When the Constitution was framed, it was agreed that unless the Uniform Civil Code has the consensus of all the people, it would never be implemented. It would not be forced. Even Dr. Babasaheb Ambedkar said so.
How will we amicably organize uncountable cultures without causing at least a scratch on religious freedom, leave alone an intrusion?
Conclusion
It is possible to view these demands as being negative and the product of a majoritarian impulse, rather than positive. The main fear that people are feeling in relation to this debate is that no one knows the face of the uniform code that could govern them. Muslim communities fear that they will be given a Hindu code in the face of Uniform Civil Code.
Alternatively, the Special Marriage Act, 1954 can be amended to include various aspects of personal law to be applied to persons opting for secular marriage under the Act. The government has done very little to popularize it.
The government has to focus on codifying the Muslim personal law so as to protect women from atrocities. The codification of Muslim law will dilute the debate for the application of UCC and will protect the fundamental rights of the minorities. Reformation and codification is the need of the hour and not Uniform Civil Code.
Clearly, if gender justice is not prioritized, both uniformity as well as its dilution can strengthen patriarchy and majoritarianism. It has to be a step-by-step approach which will work better for culturally diverse Indian communities.
Legal pluralism is one of the aspects of our diverse society. For being secular, homogeneity in personal law is not the requirement. The openness to and tolerance of all cultures, races and creeds would constitute a Secular Republic. ‘Unilateral Civil Code’ instead of a ‘Unanimously Accepted Civil Code’ may result in unrest among citizens.