I know invoking the phrase ‘Uniform Civil Code’ is going to get passions riled up right away. There will be people with mental images of a united India, striding on a tiger towards a glorious sunset/ sunrise. There will be those who imagine a powerful state shoving a cruel provision down the throats of unwilling minorities.
Let us let go of those mental images for a bit. I understand that it is not very easy to detach oneself from one’s ideology, but let us try for the next ten-fifteen minutes to think of the Uniform Civil Code as a common set of personal laws governing all persons in India.
My post will attempt to analyze this demand by talking about what its defenders and detractors say, and possibly suggesting a solution to the impasse that we have reached over this issue. One of the peculiarities of this impasse is that while the Uniform Civil Code affects all communities, the debate is centered around Muslim Personal Law.
An explanation of this can be given by the fact that the post-partition period was fraught with sentiments that ran high, and shortly after this, attempts began to codify personal laws. While Hindu Personal Law was ultimately codified, it was not an easy affair. When the Hindu Code Bill was initially proposed, it was first opposed by the President of the Country at the time. Subsequently due to the heated debates that followed,and the President’s threat to resign, even Jawaharlal Nehru withdrew his support to the bill. This impelled a disillusioned Dr Ambedkar to resign.
Be that as it may, the Congress came back to power and Hindu Personal Law was codified. However, due to the injury the psyche of the nation had received during the partition, and due to the fact that the Prime Minister believed that the majority has a certain moral responsibility towards respecting the sensibilities of the minority, Muslim Law did not undergo the widespread reform that it does require.
Whether the attitude of Pandit Nehru was correct or not, I shall leave to historians and political scientists to decide. It is not the job of a mere blogger. But I shall say this, his actions were open to misinterpretation, and were promptly given the tag of minority appeasement. As a result of this, the issue of the Uniform Civil Code, which was actually an issue of fair and equitable personal law, became hijacked by the Hindu Right, as an issue of national integration and minority appeasement. (the word hijacked here only means that the tone and proponents of the discourse shifted, it is not meant to cause any offense to any community). (For further details on this process of the Hindu Right taking over the Uniform Civil Code discourse read ‘Subversive Sites: Ratna Kapur and Brenda Cossman (Sage Publications)’.
However, there are two things I need to clarify first:
a) Muslim Personal Law is not the only personal law with inequitable provisions or a gender bias. The Parsi Personal Law also has several ambiguities due to which girls who marry non-Parsis, or girl children born of a Parsi and Non-Parsi union have to suffer. Bringing reform in Christian personal law was also an uphill task, which is being accomplished bit by bit.
b) Most persons think that when we talk of Muslim Personal Law in India, we talk of Sharia Law. I am ashamed to admit that this is a mistake even I have made in the past. However, NO Muslim personal law in India, is NOT Sharia Law. It is what is called Anglo-Mohameddan Law. This is the body of law that came into existence as a result of judgments in British Courts in India, given by non-Muslim, British, and sometimes even Muslim judges who consulted the Hidayah, written by Mirghayani, a Hanafi scholar.Sometimes they also consulted some Maulavi before delivering the judgment.
When people defend Muslim Personal Law, it is this law that they are talking of, not Sharia Law. For further details read Ashgar Ali Engineer in this wonderful article: http://www.csss-isla.com/arch%2025.htm
Now to delve into the Uniform Civil Code issue.
The Defenders of the Uniform Civil Code:
1) It can remove human rights abuses inherent in certain provisions of personal law, particularly relating to the rights of women.
This is perhaps the most important aspect of the demand for a Uniform Civil Code, since critics of Muslim Personal Law particularly cite triple talaq and polygamy as the worst features of the personal law.They further argue that not having a Uniform Civil Code amounts to discrimination between Hindu Women and women of Minority Communities.
2) Unity of the nation
This is perhaps the most problematic aspect of the demand for a Uniform Civil Code. It assumes that the communal strife the nation faces can be removed by making people practice the same personal law. However, there is no evidence to suggest that this will happen, just as there is no evidence to suggest that imposing a common language on the nation ensures people will be more united. To extend the analogy further, people of Bihar and Uttar Pradhesh both speak Hindi, but I am yet to see any special unity between them.
Of course, there is no way for me to say that it WON’T create a sense of unity among different communities, but that is neither here nor there.
3) All ‘civilized’ countries have it.
The problem I have with this argument is that the circumstances of those ‘Civilized’ nations are not the same as ours. They are much smaller, have much less diversity, and do not have a horrific partition as historical baggage. Also there are been negative consequences in countries which have tried to impose cultural norms on unwilling minorities: e.g. Women threatening to immolate themselves in Turkey due to a ban on headscarves. A similar move from France also received stiff opposition from women.
Anyway, the Indian context is different, and what has worked for other countries, may not work for us.
4) The Constitution says it.
Well yes, the Constitution does say we ought to try to bring about a Uniform Civil Code, in the DIRECTIVE PRINCIPLES OF STATE POLICY. This section contains a lot of provisions that we have not been able to implement, and some which we have abandoned due to changing times (such as prohibition).
So if in this day and age, we find that a Uniform Civil Code is not a good idea, we can move away from it and try to work out other solutions.
But now let us examine the other side of the fence.
The Detractors of the Uniform Civil Code.
1) Amounts to disrespecting personal law/ religious beliefs of a community
Right, so let me say this right away.
Human Rights > Religious beliefs
You simply can not violate the rights of women and call it your religious beliefs.
It is disputed whether the religion actually promotes these beliefs
Polygamy is not really encouraged by Islam, it is permitted in certain conditions. Infact (refer to Mr Ashgar Ali Engineers essay above) it is believed that the Prophet reduced the number of wives that men could marry, quite a radical step for that time. Similarly, the triple talaq (said in quick succession) is also not encouraged by religion.
2)It will create a sense of alienation among the minorities.
Well, frankly speaking a majority of the members of the Muslim community are not opposed to reform. Mr Engineer found that
“some prominent Ulama from Deoband, Lucknow and Aligarh, to our pleasant surprise, favoured abolition of triple divorce and they were critical of Muslim Personal law Board on its insistence to retain it.”
Perhaps the problem is not so much with the Muslim Community, but with certain voices in it, who claim to have the right to represent the whole community. What these voices forget is that Muslim Women are fifty percent of the population, and their voices count too, while making decisions on the state of personal law.
3) The Hindu Right’s advocacy of the issue has now made it an excuse for cultural aggression.
There might be some merit in this, particularly since the manner in which the Hindu Right has driven the discourse behind the UCC, combining it with other highly contentious issues such as the temple at Ayodhya, the consumption of cow meat, teaching history in the ‘right’ perspective, makes any debate on it an extremely charged one, with neither side willing to concede an inch, for fear of getting the short end of the stick.
Is there a way out?
Yes there is. But the way out involves something that people on neither side of the debate are willing to do. COMPROMISE.
Given the bitterness over the UCC, it seems to be very difficult that it can be enacted without widespread bitterness in sections of the Muslim community. One does not know how widespread this section or the bitterness will be, but it may be better to look at the two other alternatives before us:
a) Why not an OPTIONAL CIVIL CODE
I know what I am proposing is radical, hard to imagine and we will need the best legal minds of the country to work on it before it can be a reality. But what if we can create an Optional Secular Civil Code that persons can chose to get registered under and be governed by. This way we give room to men and women of all communities choosing to opt out of outdated provisions of their personal law, and be governed by the Optional Civil Code. While the Special Marriage Act does this to a certain extent, by allowing people to opt out of their personal law relating to marriage, an Optional Civil Code would have comprehensive provisions regarding marriage, inheritance, adoption, guardianship all in one place.
Given the emotional baggage attached to the UCC, the Optional Civil Code, if framed well, can give us a fresh start as a society. It will also let Muslim Women (and women of other communities) opt out of their personal law, instead of having to wait for that law to change.
b) Reform of personal law at a fast pace
Things need to change with personal law, and yes there has to be a certain degree of uniformity. But this result can be achieved by a fast paced reform of personal law of communities,in tandem. By doing this, the human rights violations in the personal laws can be fixed, while keeping the identity and practices of a community alive.
Either of these suggestions, to be implemented, need not only political will but tact and sensitivity. We can stick with outdated practices, or shove our conception of modernity down unwilling throats, but none of these will be a real victory for our polity.
I would love to hear from you, dear reader, what you think we need to do..