A uniform civil code cannot and should not be enacted at one go
In 1986, when I was travelling by bus from Aligarh to Moradabad, we stopped at a dhaba. An old man sitting there was reading loudly from an Urdu newspaper. “If the uniform civil code is enacted, then Muslims will not be allowed to bury their dead and they will be forced to burn them just like Hindus,” he said. I was shocked at hearing this, but it is true that most Muslims still do not know what the uniform civil code really means. The Bharatiya Janata Party’s victory has revived the age-old debate.
There are well-defined positions on the uniform civil code. Human rights advocates, feminists and Sangh Parivar supporters favour it while Muslim fundamentalists simply oppose it. No one is willing to look at the problem rationally. Muslim backwardness is often attributed to the religion’s personal law. Most Hindus continue to be backward and earn just Rs.20 per day in spite of reforms in Hindu law. Several Muslim countries have made radical changes in Muslim law but they are still quite backward. So how will enactment of the uniform civil code help in improving the community’s backward status? It will not lead to employment generation or economic growth.Not related to development
Generally, three arguments are put forth in favour of enacting a uniform civil code: that it will lead to national integration and draw minorities into the mainstream, encourage communal harmony and work towards improving the status of women. While these arguments concede that the minorities are not in the national mainstream, terms such as ‘national integration’ and ‘mainstream’ are vague.
Moreover, no one can say with certainty that communal riots take place because Hindus perform satpadi and Muslims nikah or that Hindus have one law of divorce while minorities have another. Similarly personal law has no relationship whatsoever with the development or backwardness of any community.
The point which is often missed in this debate is that we have already reformed Hindu law. Has it resulted in the upliftment of Hindu women? How many Hindu women get a share in property? The amount of land actually inherited by Hindu women is only a small fraction of the amount of land they are entitled to under the reformed Hindu law. Even when women inherit land, it is invariably less than an equal share. Women are likely to get more land as widows than as daughters. Even though women want to inherit land, they prefer to inherit land from their husbands rather than from their parents, in order to avoid offending the harmonious relationship with their family. Taking advantage of the reduced registration fee and stamp duty, men purchase land in the name of their wife or daughter-in-law, but retain the title documents and control the land. Normative changes in law certainly do not bring about necessary social reform.
Further, the directive principles are positive obligations of the state. Why then has no government prepared any blueprint of a uniform civil code? Did not even the BJP under Atal Bihari Vajpayee abandon it just to stay in power? In the absence of a blueprint, ignorance over the matter is being misused by fundamentalists to state that a uniform civil code will lead to uniform ceremonies such as rites of death. Present day Hindu law should not and cannot become the uniform civil code. If the new BJP government takes up this issue soon, the much-needed conducive environment for the enactment of a code can never be created; only an emotional outcry will be heard from different quarters.
It is also disgusting to note that while the directive principle of a uniform civil code is emphasised, no one speaks of the non-implementation of other directive principles that are far more important : the right to work, living wages, avoiding the concentration of wealth in the hands of a few, protection of monuments, etc. Amending a community’s personal law with a view to bringing about changes for its betterment is one thing, but to tinker with the enactment for the sole purpose of introducing ‘uniformity’ is another issue altogether. The former may be an act of reform, but the latter is an arbitrary action that may attract disapproval.Accepting a uniform civil code
The Muslim law has been reformed in several countries. Then why have Muslims opposed reforms in India? The answer lies in the ‘minority psyche’ of Indian Muslims, which is tied to the question of their identity. Let them be convinced that a uniform civil code has nothing to do with their distinctive identity, let them develop faith in the new government, let them have a fair and equitable share in the power structure of the state and let culprits of communal violence not be rewarded with ministerial berths. Accepting a uniform civil code would then become far easier. Muslims in India should also realise that in spite of uniform family laws in the West, Islam is growing at a very fast pace. Thus, a uniform civil code is not a great threat to the religion as it is perceived by many.
It is also disturbing to note that no one ever points out that many Hindus take advantage of their own personal law under the Hindu joint family system, causing losses worth millions of rupees to the income tax department. Will the BJP take the first step of withdrawing this benefit?
The enactment of a uniform civil code will disrupt communal harmony. The better course would be to bring about piecemeal reforms. There are already several reforms that go against personal laws. The British introduced a number of changes in Muslim Law: slavery was abolished, the loss of civil rights on apostasy was abrogated, Islamic Criminal Law was abolished and replaced with the Indian Penal Code, a comprehensive Evidence Act was enacted which made the Islamic law of evidence obsolete, etc. A uniform civil code cannot and should not be enacted at one go.
(Faizan Mustafa is vice-chancellor of NALSAR University of Law, Hyderabad, and former registrar, Aligarh Muslim University.)