Prime Minister Narendra Modi has been pushing for a Uniform Civil Code (UCC) and is blaming the Opposition for trying to “instigate” Muslims on the issue. In 2017, the Supreme Court struck down triple talaq as illegal. In a society that aims to be egalitarian, laws that are discriminatory to various sections of society have to be amended progressively.
Personal laws that cover marriage, divorce, succession, inheritance, adoption, alimony and maintenance are a pernicious legacy of the British Raj. The sooner they are done away with, the better it is for the people. As Law Minister, B.R. Ambedkar, supported by Prime Minister Jawaharlal Nehru, had recommended enacting a UCC, but favoured it being voluntary. He faced resistance for the idea. Since then, successive governments have failed to provide a UCC that is consistent with India’s commitment to being a democratic, secular and socialist Republic. They have succumbed to the vested interests of large sections of patriarchal Hindu society and of Muslim groups who want to follow Sharia law.
Today, it is ironical that the right wing Bharatiya Janata Party (BJP) is advocating a UCC, while the purportedly liberal, socialist, and secular Congress and Left are opposed to it. Many regional parties have opposed the idea, while some such as the Aam Aadmi Party and the Shiv Sena (Uddhav Balasaheb Thackeray) have maintained silence on it. Muslim organisations are divided: while the All India Muslim Personal Law Board has criticised the proposal, the Jamaat-e-Islami Hind has said a UCC could affect all Indians.
All these parties are hypocritical. While the BJP hailed the Supreme Court’s triple talaq verdict, it opposed the Sabarimala judgment saying the Court cannot interfere with religious traditions. The Congress said there was no need for the Muslim Women (Protection of Rights on Marriage) Act, which criminalises triple talaq, as the practice had already been declared null and void by the court, whereas in 1986, Prime Minister Rajiv Gandhi got enacted the Muslim Women (Protection of Rights on Divorce) Act to nullify the Court’s Shah Bano ruling. During the discussions on Sabarimala, the Congress supported Hindu fundamentalists who wanted a ban on women’s entry into the temple.
The Supreme Court has made it clear that it is for Parliament to enact laws and related rules for implementing a UCC as mentioned in Article 44 of the Constitution, and urged the government in 2015 to do this. Though suggestions for a UCC have been brought up in Parliament in the past, differences reportedly existed between the BJP and the RSS.
Once upon a time, Sati and child marriage were prevalent in India. Sati was abolished due to the efforts of reformers such as Raja Ram Mohan Roy. There are still cases of dowry and child marriage though these practices have no legal sanction.
Hindus do not have uniform customs and practices. There are myriad castes and sub-castes with their own beliefs and systems for marriage and remarriage for men and women. Even inheritance of property rights is not equally applied to men and women. In many parts of the country, a woman whose husband has died cannot remarry, while a man whose wife has died can. In some communities, he marries the unmarried sister of his late wife. Regressive practices such as “honour” killings and the horrific “love jihad” laws in some BJP-ruled States continue. Women bear the brunt of many of these practices. It is the same case among Muslims and their sub-sects, and other minority faiths. The Supreme Court order of 2014 declaring that Muslim Shariat courts have no legal sanction drew a sharp reaction from some Muslim clerics who tried to defend their right to practise their religion, including the issue of fatwas, under the constitutional guarantee of religious freedom. The case pertained to a woman who was raped by her father-in-law. Following the incident, the village panchayat passed a fatwa asking her to treat him as her husband. The Dar-ul-Uloom declared that she had become ineligible to live with her husband. This was endorsed by the All-India Muslim Personal Law Board. One of the bizarre arguments offered was that it was a punishment for the father-in-law to live and maintain the girl whom he had raped.
Equal under the law
In mature democracies of the West, the law guarantees citizens the freedom to practise their own religion in their private lives, but a common civil and criminal code is applicable to all citizens and immigrants, irrespective of caste, creed, colour, or gender. The justice system and civil codes in all these countries evolved over 200 years. It should be no one’s case to foist the civil code applicable to Hindus on Muslims or other minorities. Khap panchayats are as detrimental to women and society’s progress as fatwas or Shariat courts. Every citizen must come under a common civil and penal code so that all are equal under the law. A nation must protect its women and give them total freedom and equal opportunities as men. The government would do well to take the initiative and distance itself from its own party hawks and associated hard-line outfits to depoliticise the issue, and under the guidance of the Supreme Court, take the best from the democratic world and the country’s own laws and pass a well-thought-out UCC in Parliament so that it becomes law in every State without exception. Only then will society be truly developed, modern and civilised.
Captain G.R. Gopinath is a soldier, farmer and founder of Air Deccan