Debating India


At The Civil Lines Crossroads

Monday 28 July 2003, by BHAUMIK*Saba Naqvi , JOSHI*Poornima

The code would be ideal, but in these vitiated times, the country is far from ready.

"The time is not ripe for it," Pandit Jawaharlal Nehru had said about a Uniform Civil Code (UCC) in the mid-50s. The wounds of Partition were still fresh when India’s first PM uttered these words. Sadly, half a century later, even those progressive voices who support the reform of religious laws to give minority women more rights believe the communal situation in India is still not conducive.

Even those who had strongly opposed the retrograde Muslim Women’s Act in 1986 that overturned the landmark Shah Bano judgement (granting maintenance to abandoned Muslim wives), say there is a big difference between 1986 and July 23, 2003, when the Supreme Court again "suggested" that Parliament frame a common code for the country as "it will help the cause of national integration".

Many progressive thinkers now say that in the post-Gujarat context, first minorities must be assured their lives and properties are safe before they can be "integrated". Former Union minister Arif Mohammad Khan, who had quit the Congress in protest against its decision to overturn the Shah Bano judgement, now says: "The same people who have pushed the country into the 14th century by demolishing mosques and launching a pogrom against all minorities say they want Muslims and Christians to embrace modern laws like a Uniform Civil Code. It’s complete hypocrisy, the minorities can’t trust them."

The issue of good faith is also raised by political scientist Zoya Hassan: "Look at the political context today. The BJP is in power at the Centre trying to push its Hindutva agenda. Muslims have got no justice after Gujarat. And there is a worldwide witch-hunt against the community after 9/11. The political situation is not at all conducive...particularly, as those who advocate a uniform code hardly want Muslims in the national mainstream."

Father Dominique Emmanuel of the Catholic Bishops Conference of India echoes these views: "We are not averse to any progressive legislation but it has to take into account the current socio-political situation and the sentiments of everyone involved." There is need for reform but it should come from within the community, says Haseena Khan of the Mumbai-based Awaaz-e-Niswaan, which works among Muslim women." Come to Gujarat and see the shattered women whose children have been murdered before their eyes. Meet the rape victims who have lost everything and got no justice. First, give the community security, then talk to us about our religious laws. There can be no reform in the age of the BJP which is anti-Muslim and anti-women," she says.

The SC’s observations also caught the political class unawares. As BJP party general secretary Pramod Mahajan said: "We are happy the court endorsed our stand. But there’s not much we can do if the nda allies and Congress don’t support us on this." Indeed, the BJP faces a serious problem. On the one hand, the RSS, VHP and party hardliners would like a campaign on this issue. Yet the compulsions of realpolitik force the party to waffle. As with Ayodhya, it is one step forward and two back on the uniform civil code too.

The only saving grace for the BJP is that the Congress hardly has a clean slate on this issue. Aware that its controversial backing for the Muslim Women’s Act had been a major catalyst for the emergence of Hindutva forces on the national scene, the Congress reacted cautiously. "We believe nothing can be done at this stage," said spokesperson Jaipal Reddy.

Legal experts are of the view that the concept itself is much misunderstood. According to former chairman of the National Minorities Commission, Tahir Mahmood, one has to understand the spirit of the Constitution to properly understand the nuances of UCC.

"Please note the difference between a Uniform Civil Code and a Common Civil Code.The Constitution nowhere says that there should be a ’common’ civil code. What the Directive Principles suggests is that there should be uniformity in civil laws. The Directive Principles are to direct the State towards evolving uniformity in civil laws. There is nothing that suggests that there should be a common civil code for all," Mahmood says.

The Directive Principle of State Policy contained in Article 44 of the Constitution asks the State to "endeavour to secure a uniform civil code for the citizens throughout the territory of India". Despite the Constitution envisaging uniformity, Parliament has enacted four Hindu law statutes that clearly provide that if a Hindu converts to another religion, it would result in the loss of all family rights relating to guardianship, adoption, maintenance etc. This is completely at variance with the Muslim and Christian personal laws.

"The new Hindu personal law of 1955-’56 is neither uniform nor free from religion-based and sex-based discriminations. The current civil laws nowhere suggest a uniformity. The State has not adhered to the uniformity pattern for the last 40 years in the area of civil laws. And now, suddenly, we want to evolve a Uniform Civil Code?," asks Mahmood.

He feels the problem is also that the Hindu laws have been codified by Parliament, the Muslim ones have not. So the fear among minorities is that the codified Hindu laws could be imposed on them. "Would any Hindu like it if Muslim laws of marriage are imposed on them? It’s a complicated subject, not one that should be discussed by ill-informed politicians on public platforms," Mahmood adds.

The reality is that in a diverse country like India, Parliament has over the years allowed diverse laws so that the fundamental rights of practising separate religions and cultural practices are ensured. There are separate laws for Christian marriages and the Parsis have separate matrimonial courts.

Civil rights activists and legal experts like Prashant Bhushan clearly maintain that such a progressive law is welcome, but add that a suitable atmosphere must be created in which all sections feel secure enough to sit together and cull out the most progressive of their personal laws.

Meanwhile, the All India Muslim Personal Law Board (AIMPLB) is cautious in its comments. "The SC hasn’t passed any order that directs Parliament to enact such a code. The judges have given their personal opinion. It is for Parliament to debate this issue...ensure that the religious freedom guaranteed to one and all in the Constitution is protected," says Maulana Sajjad Nomani, board spokesperson.

In a perfect world, implementing a Uniform Civil Code would be the ideal thing to do. Sadly, the many imperfections and cross-currents in contemporary India hinder this goal.

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