SASTRA University’s School of Law kickstarted a debate on the need or otherwise of a Uniform Civil Code (UCC) in the country by holding a panel discussion with former Chief Election Commissioner (CEC) S.Y. Quraishi, Senior Advocate Sajan Poovayya, Member of Parliament (MP) Manish Tewari, and advocate J. Sai Deepak in Chennai on Saturday.
Speaking at the event organised as part of the sixth edition of ‘Lawgical Connect’ at the University’s Chennai campus, Mr. Quraishi said: “Most of this debate, on which every child in the country seems to be an expert, is based on ignorance.” He was of the view that a national debate was taking place on a non-issue without there being even a draft UCC.
He said a majority of the people in the country had no clue about what civil rights were and yet wanting a UCC only on the basis of a shallow understanding of preventing Muslims from indulging in polygamy. “Polygamy in Islam by itself is a myth,” he said and pointed out that only one verse in the Quran refers to such practices.
The former CEC stated that most people read only half the verse which permits a Muslim to have four wives and conveniently ignore the other half that imposes a condition that all of them should be treated equally. He also said the holy Quran insisted upon marrying from among widows in order to ensure their safety.
“Allah says treat the widows and orphans equitably, be just to them, be fair to them, do not misappropriate their property, and ideally, you should marry two, three or four from among them. The words ‘from among them’ is important,” Mr. Quraishi said and highlighted that male deaths due to tribal warfare were common in the 5th Century.
Not many Muslims in the present era follow polygamy. So far, only one study had been conducted in 1975 on the status of the women in the country, and it found polygamy to be practised in all communities. “Maximum polygamy was among the tribals (15.24%) followed by the Buddhists, then the Jains, then the Hindus (5.8%), and the least was among Muslims (5.7%),” he said.
“I am a Muslim but I am not polygamous, though people may think I have many wives hidden in my house. Muslims are the least polygamous. Unfortunately, they think it is a right given by their religion, and so they are willing to die for this right which they do not even practice. So, I tell them that if you do not practice polygamy then why don’t you ask for its abolition?” he added.
Mr. Quraishi said there was a similar misconception over triple Talaq. While the Quran says it could be pronounced only over three menstrual cycles in order to provide time for reconciliation and that the Talaq uttered once or twice would become void if a man cohabits with the woman in the interregnum, some people illegally end up pronouncing triple talaq in one go, he said.
He said reforms in any religion should come from within the community and not imposed from outside because otherwise it would always be misunderstood and resisted. He denounced the “politics” behind the UCC and the “crocodile tears” being shed on the status of Muslim women when mob lynching, rape, and other such crimes were taking place brazenly across the country.
“I perform Nikkah, you undertake Pherahs (circumambulation around the fire during marriage). I get buried, you get cremated. How does it affect either of us? These are based on personal laws. How does it divide the country?” he asked and stated that the 21st Law Commission had categorically stated that the UCC is neither necessary nor desirable at this stage.
‘An egalitarian regulatory system’
In his remarks, Mr. Poovayya said the debate about the UCC was often misconceived and unfortunately turned into a discourse between Hindus and Muslims or the majority versus minority. He said polygamy and bigamy were not even an issue when it comes to discussing about the UCC.
“The issue is how do we bring in an egalitarian regulatory system in this country where every individual will have his/her own dignity protected and predicate his/her own life on the pedestal of that dignity. How do we make sure that women get equal treatment irrespective of religion? The only way we can do that is to have the UCC,” he said.
He pointed out that Article 25 of the Constitution gives a right not only to practice a religion but also to profess and propagate it “but the minute the manifestation of such faith touches another individual, it is the secular activity that comes into play. You can’t say that the secular activity of a Hindu is different from the secular activity of a Muslim or a Christian. That is anathema.”
Mr. Poovayya went on to state: “The treatment I give to my daughter is not a religious activity. The treatment I give to my wife is not a religious activity. The treatment, which fortunately or unfortunately, that a Muslim man gives to his second wife is not a secular activity, and the Constitution has every reason to control that activity because that is why we formed ourselves into a constitutional democracy.”
The Senior Advocate wondered why should a human being be a second wife to a person. “Will you tolerate if the second wife had another husband? Therefore, the debate is for deliberating what should be there in the UCC. The intelligentsia in India is coming forward to debate even before it is drafted,” he said.
Stating that he belongs to Kodava community whose ancestry could be traced back to the pagans of the Middle East, he said, his ancestors came to India during the period of Alexander the Great and made this country their own. He said the Kodavas do not circumambulate around the fire for marriage, instead they light a lamp and the elders in the family solemnise the marriage between the two individuals even in absentia.
“I was at my home in a different town and my wife was at her home in a different town when our marriage took place. This customary practice is recognised to be a formal marriage under the Hindu Marriage Act. Therefore, the UCC is not about unifying customary practices and rituals. It is beyond that. It is a scenario where it says once you are married, you will have equal treatment in terms of your spouse, children, succession, and all secular activities that impacts the society,” Mr. Poovayya concluded.
‘Voluntary and not imposed’
Mr. Tewari recalled Lawgical Connect’s second edition in 2015 to have been conducted on the UCC and the topic is being repeated once again in 2023. He commenced his remarks with the prelude: “Reagitating the UCC goes to show how this ghost, which even after nine years of trying to slay it, still continues to have a life of its own.”
He told the audience that the religious partition of India in 1947 was not the handiwork of one individual Mohamed Ali Jinnah as was being projected by some and that the two nation theory was endorsed by many, including the Jan Sangh leaders and even by Savarkar in his address to the Hindu Mahasabha in 1937.
“Out of the religious partition of India, there were born three separate things. An Islamic Pakistan and two conflicting visions of India. One vision that believed that notwithstanding the religious partition, India should be a pluralistic, inclusive, democratic nation... and another of a Hindu India,” he said.
A majority of the members, 94.6% to be precise, of the Constituent Assembly were Hindus by faith. “Therefore, we had a Constituent Assembly which was dominated by people of a particular faith after a religious partition, which convulsed the soul of the nation, but what they engrafted was the vision of a pluralistic and inclusive India,” Mr. Tewari pointed out.
Therefore, the Constitution is not a legal document, it is a political document which embodies the hopes and aspirations of an entire nation which was looking at a new tomorrow. “Between June 1947 and November 26, 1949, is when some of the finest minds met not to eradicate the monuments built by the British but to design a document for posterity and in their wisdom, they drafted the Constitution which in parts is declaratory in character and non-binding.”
Though the chapter on Directive Principles of State Policy in the Constitution had as many as 18 Articles, touching upon issues of seminal importance, it was ironic that the discussion was only about Article 44 dealing with the UCC, Mr. Tewari lamented.
“I often wonder why Article 44 has become the dog whistle of the State policy? And interestingly, if you read the words of Article 44 it says the State shall endeavour to secure for the citizens a UCC throughout the territory of India. The words are ‘the State shall endeavour,’ it is not that the State shall enforce,” he highlighted.
Referring to Constituent Assembly debates, he said B.R. Ambedkar too while defending Article 44 of the Constitution had made it abundantly clear that the acceptance of the UCC should be voluntary and not imposed.
“When we structured a scheme to integrate Nagaland into India, we made an explicit constitutional declaration that Naga personal laws will not be touched. We did the same with Sikkim, and we did with the same with Mizoram in 1986. We gave protection to their personal laws because those were based on customs and were of extreme importance to them,” Mr. Tewari added.
Clarifying that no one was opposed to reform in personal laws, he said even the Congress government, during his tenure as a Union Minister, had brought in laws for protection of women against domestic violence, to ensure equal rights in inheritance to women, and providing for maintenance to parents and senior citizens.
“Therefore, if the government thinks a particular practice needs to be reformed, then the State should have the conviction of courage of standing up and articulating that rather than hide behind the fig leaf of a UCC,” he said.
‘Hypocrisy in political discourse’
Mr. Deepak said the UCC was one of those rare subjects on which panellists surprisingly question the need for and the relevance of secularism and suddenly show concern for Hindu rights and customs by contending that if the UCC was implemented, it would not be just the minorities but also the majority that would be affected.
“The importance of the UCC is not what it does, it is actually going to bring out the innate and inherent hypocrisy in Indian political discourse,” he stressed.
He went on to state: “Assume for a moment that the government had come up with a draft UCC and asked for opinions, then it would have been told, you came up with a draft behind closed doors, you didn’t even consult the community. And if you initiate a conversation without a draft, they ask: Where is the draft? What are we exactly talking about? Why are we shooting arrows in the dark? So, this is a Catch 22 situation.”
If there had been a draft, the government would have been accused of imposition, fascism and dictatorship. “When there is no draft, they say no intelligible discussion can happen. I leave it to the audience and your reasonableness to draw your own conclusions on what is the nature of the debate going on here. We cannot win a debate here because one community has told itself that I am a perpetual victim under all circumstances. It has convinced itself of this,” Mr. Deepak added.
Making it clear that he does not believe that personal laws were secular, he said: “I don’t wish to start with the argument that personal laws have nothing to do with faith. Granted that personal laws have basis in faith, does it mean that the State does not have the right of reform. Even if a particular relationship is of a religious character, does it mean the State does not have the right to reform? That is the simple question.”
British intervention with the Hindu laws began in 1776 under the Gentoo laws and went on till the 1940s when Ambedkar and the Rao Committee put together the codification of the Hindu laws in 1941. There was resounding opposition to the codification and yet it was gradually implemented by Jawaharlal Nehru between 1955 and 1961, he said.
“The language of majoritarianism, that is now being used, was never used in the context of a Hindu Code Bill that was pushed against the community’s interest. You see that’s how it works. It is not the issue that changes. It is who the subject of the issue is. Then, everything conveniently changes, the logic will change,” Mr. Deepak said.
He also contended that the Indian Muslims, a majority of them being converts, had been following Hindu laws until the Shariat Act of 1937 was enacted due to persistent nudging by Jinnah.
“Now, those who defend the Shariat Act of 1937 find themselves in the august company of Mohamed Ali Jinnah... Those who are fighting for repeal of the Shariat Act are fighting for the revival of the entity called Indian Islam because we are basically saying you lived by these customs for centuries till 1937. So, who is batting for plurality? who is batting for Indianisation? and who is batting for national unity? I leave it to the audience,” Mr. Deepak said.
K. Kannan, former judge of Punjab and Haryana High Court, moderated the discussion.