The term Uniform Civil Code (‘the UCC’) denotes a small field of civil laws relating to marriage, succession, maintenance and adoption. However, given its intimate relationship between religious injunctions, practices and beliefs of communities, any discussion on streamlining these laws into a single codified secular legislation is fraught with risks and raucous contentions. Some see it as an imposition of majoritarian hegemony on the minority community (which currently follows its own personal laws) and others see it as an act of wanton destruction of traditional and religious identities. “Identities” which they say “were nurtured and preserved by the communities from time immemorial”.
This debate takes us to the question that goes into the heart of the matter. “Should traditional and religious practices howsoever controversial, regressive and archaic be accommodated at every cost or should the law makers strive to achieve the ambitious goal of our constitution being equality and fraternity for all?” It also takes us to the deeper question on nationhood itself i.e. “Should a national identity be a mere agglomeration of religious practices of various communities or can the nation have a distinct identity of its own which is secular, progressive and modern to which various communities make small sacrifices so that the nation’s constitutional mandate is achieved and a just and fair social order is established?”
Any answer to these questions is fraught with risks. The risk of status quo versus the risk of perceived state authoritarianism by members of the minority community. Some say it is for minority community to decide for itself what it really wants and uniform civil code must not be established. However, the framers of Indian Constitution were convinced that certain amount of modernization is required if the overarching goal of our constitution Equality and Fraternity for all especially to the women is to be achieved.
The Story of the Hindu Code Bills
Let’s consider for example another debate that happened in the late 1940s. The debate was on Hindu Code Bills. Jawaharlal Nehru, a popular mass leader was suddenly facing his deepest hour of crisis. His law minister Dr Ambedkar, had introduced the Hindu Code Bills in the Parliament. The Hindu Code Bills were arguably the most radical and the most egalitarian piece of legislation of its time. These set of legislations on marriage, succession and adoption sought to override the authority of various traditional practices and religious texts to bring radical social change in the society. For the first time the Hindu Code Bill sought to give the right of divorce to the Hindu Women.
Under Traditional Hindu law, marriage was a religious sacrament and by definition was an indissoluble union. Under the Hindu Code Bills, a woman would be free to divorce her husband at will and would suddenly become the master of her own destiny, the captain of her own fate. A radical social order was about to herald.
Dr Ambedkar had earlier observed “Political democracy without social democracy has no meaning” and in pursuit of this lofty ambition of gender equality, he decided to stake it all. These two great men (Nehru and Ambedkar) sought to irretrievably alter the social tapestry of a largely Hindu nation with a civilization that dated back to 5000 years.
However, this radical notion of equality did not go down well with many people. Large protests were held not only by the religious supremacist but also from the members of the congress party itself. Large rallies were held against the bills. Numerous organizations were formed. They lobbied to defeat the bills and massive amounts of literature were distributed stating that the Hindu Civilization was about to end forever. The critics argued that divorce by women was against Hinduism because to a Hindu the marriage is not a contract but a religious union. The protestors argued that if equal property rights were to be given to women, the Mitāk arā concept of a joint family would crumble and along with it would crumble the foundations of the Hindu society.
While the Hindu code bills was entirely defeated, Nehru in 1956 passed the Hindu Marriage Act and other legislations like Hindu Succession Act, thereby putting an end to the right of a Hindu man to have unlimited wives and also gave legal right of divorce and property rights to the Hindu Woman.
One may rightfully ask if the Hindu man can sacrifice the right to unlimited wives after 1955 and agree to share property with their wives in pursuit of a unified national identity and constitutional mandate, then perhaps the minority community can also consider accepting the Uniform Civil Code which ushers a new era of gender justice for women of the minority community.
And to those critics who claim that there would be large scale opposition to the code, it must be said that the minority community of today is far more participative in nation building exercise than was the Hindu community when Hindu Code Bills were to be passed.
Constitution and Gender Equality
The Constitution of India sought to give every man and woman of India equal human rights despite their living in a deeply patriarchal society. However to achieve this ambitious goal of our constitution, one must synchronize personal laws of major religions of the nation to create a common civil code for all Indian Citizens. It is with this intention, the makers added the clause in Article 44 of the Indian Constitution which states “the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”
The Hon’ble Supreme Court has repeatedly emphasized the need of UCC to settle the ambiguity which has arisen due to the different interpretations of various personal laws. For example, there are at least six schools of jurisprudence among Muslims, four among Sunnis and two among Shias. The Indian Muslim Personal Law is a convoluted amalgam of self-contradicting principles from different schools, but most particularly the Hanafi branch of Sunni legal belief.
The confusion caused by differing interpretations necessitates a common law. On this the Supreme Court had remarked that the personal law of Hindus such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians . The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of national unity and integration. It is only fair that the minority community also accept the same.
In the Muslim personal law, there is discrimination against the wife in three ways :
(1) A Muslim husband can get a divorce immediately without going to court by immediately pronouncing a triple Talaq, whereas the wife who seeks divorce has to go to court and file a petition which usually takes years to decide.
(2) The Muslim husband need not give any ground for divorce and he can divorce his wife merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it.
(3) A Muslim man can marry 4 wives, but a woman can, at a time, have only one husband. Today, polygamy is legally permitted to Muslim males. It may be noted that the Hindu male upto 1955 could have unlimited number of wives, whereas a woman could have only one husband. This law was altered by the Hindu Marriage Act, 1955, which provides for monogamy for both the sex.
Strategy for implementing the UCC
The most important question perhaps is how can we give effect to this constitutional mandate? One such strategy would be to have an ‘optional code’ meaning we frame a common code but make it optional for a period of time. Hence, instead of forcing one uniform law down the throats of people, we must give people a sufficient amount of time to appreciate the new law and when a substantial part of the masses accept it then it can be made compulsory. The second strategy would entail a gradual transformation to a more uniform law by ‘incremental changes’. This would require that uniformity be brought about by judicial decisions and simultaneous legislative amendments. The Supreme Court would first declare a law as unfair, unjust and unreasonable followed by an enactment of a more just and uniform law by the legislature. Therefore, there would be a gradual shift from diversified, unequal laws to a more unified comprehensive code a .k. a UCC.
The third and the most direct strategy would be to prepare a Draft UCC and open it for public and parliamentary scrutiny. One may note that these strategies are not mutually exclusive but should operate at tandem towards the same goal.
Let voices of the Moderates be heard
In his recent book ‘India’s Muslim Spring: Why is Nobody Talking about It?’ Author Hasan Suroor argues that since independence a “seismic” and “tectonic” shift has taken place in Indian Muslim community with an emergence of “liberal spring” among new generation Muslim. While, the elder generations of Muslim were “fundamentalist” and “emotional”, “intolerant” of freedom of speech, prioritized “cultural” and “identity” issues over substantive ones and had not so egalitarian view of women folk, the young Muslims in contrast are the opposite of their elders; they, are “tolerant”, “pragmatic”, “moderate”, “secular”, “cosmopolitan”, “optimistic” and “confident” and “forward-looking” as well as “nationalistic” despite their assertive Muslim identity. The popular narrative that Muslim community is represented by the orthodox needs to be challenged relegated to dustbins of history. The Shahi imam of Delhi, the Ulemas and moulanas with their fatwas are not representative of Indian Muslim of today just as the Hindu right does not represent the Hindu community. The new generation of Muslims is ready to rid the community of its insular and sectarian approach and they need to be directly consulted to usher a new era of UCC. And that will usher the desired change.
