As the center pushes for a Uniform Civil Code, it triggers a storm of protests and conflicting opinions on the timing and intent. It is a complex issue involving an incendiary mix of politics, religion, gender equality, pluralism and secularism
By Dilip Bobb
History is witness to the never-ending conflict between Church and State, the ultimate “clash of civilizations”. The concept that religious morality should be separate from secular law lies at the heart of this battle, now joined in India thanks to Shayara Bano, a 35-year-old sociology postgraduate from Uttarakhand, who was verbally divorced in 2015 by her husband.
Shayara challenged the constitutional validity of personal law regarding divorce, in particular triple talaq, in the Supreme Court, opening the floodgates to what is arguably the most contentious and complex issue of our time—a Uniform Civil Code (UCC) which overrides personal and religious laws. The contentious part is not so much the battle for gender equality as it is to do with the perception that there is a BJP government at the center and a Uniform Civil Code affects Muslims the most.
Muslim Personal Law, based partially on Sharia law, permits unilateral divorce and polygamy. Not surprisingly, the Shayara Bano v Union of India case has become political dynamite with the focus on identity politics. It has raised apocalyptic visions of an all-powerful demon state intimidating religious minorities who, in turn, are trying to make out that they are only trying to protect their cultural ethos. The truth lies somewhere in between.
The debate is not new. What is new is that the BJP government was the first political party to make it an election issue and the forceful manner in which it is now pushing for the UCC is what has raised questions and eyebrows. The government’s reaction to the Shayara Bano case was in the form of an exhaustive 7,944-word affidavit it filed in the Supreme Court. “On potentially the most contentious and significant legal matter of our times, the government affidavit has restricted itself to solely a legal and constitutional point of view,” according to Madhavi Divan, the lawyer who drafted it.
That defence was largely nullified by the fact that the Law Commission, earlier this month, shot off an ill-timed questionnaire to various stakeholders “in order to begin a healthy conversation on the viability of the UCC.” Many of the questions are relevant and well-intentioned. On triple talaq, for instance, the questionnaire asks whether it should be banned or amended. Says Justice RB Mishra, former acting chief justice, Himachal High Court: “All should be equal under the law. The laws should not impose restrictions on women. This is the right move.”
Perhaps, but it’s the timing that is suspect; on the eve of crucial state elections and considering that one of the main planks the BJP had fought the 2014 Lok Sabha elections on was the introduction of a Uniform Civil Code.
Indeed, if the NDA government’s actions were suspect, it was to be expected. No government so far has dared to take the UCC bull by the horns. The Congress was accused of “minority appeasement” but even the BJP-led NDA with Atal Bihari Vajpayee as prime minister steered clear of the issue. Now, with the Law Commission getting into the act, the battle has been joined. The All Indian Muslim Personal Law Board (AIMPLB) has announced it will boycott the questionnaire amid charges of legislative over-reach and political parties have predictably joined the fray. Adding fuel to the fire was the hype and hysteria generated by some television news channels over the issue.
The political fallout was along expected lines. The BJP says it was purely concerned with gender equality, with Union Minister Venkaiah Naidu declaring: “The issues are gender justice, non-discrimination and dignity of women.” The Left took the line that there was an urgent need for reforms in personal laws and that a Uniform Civil Code would be a threat to national integration. The Congress, predictably, called the UCC proposal “an impossible dream” while Mulayam Singh, supreme leader of the Samajwadi party, which has a large Muslim vote bank, asserted: “The issue of uniform civil code should be left to religious leaders.”
Other opposition parties like JD (U) accused the BJP-led central government of trying to polarize the people ahead of assembly polls in several states, while leader of the Majlis Ittehadul Muslimeen (MIM) Asaduddin Owaisi declared that bringing the UCC would “kill the diversity and plurality of India”.
The sharpest focus, however, is on the AIMPLB which has appropriated the role of the voice of Indian Muslims and the protection of Muslim personal law in India. Its representative, Kamal Farooqi, made the organization’s stand clear when he said: “This will mean direct interference of the government in religious affairs as Sharia religious law is based on the Quran and Hadith, and its jurisprudence is strong as far as Islam is concerned. It will be against the constitutional right to religious freedom.”
There lies the rub. India has separate sets of personal laws for each religion and demand for overhauling these codes date back decades. While Hindu law reform began in the 1950s and continues, activists have long argued that Muslim personal law remained mostly unchanged. In fact, a growing number of Muslim women, better educated, more aware and vociferous about their rights, have had enough of patriarchy. They are coming forward to challenge such laws, in particular polygamy, triple talaq and nikah halala under which a women who wishes to remarry her former husband must first consummate a nikah with another male. Zakia Soman of the Bharatiya Muslim Mahila Andolan, a social organization and one of the petitioners in Bano’s case, stated: “The minute you start talking about a UCC, everyone gets worked up and the question of gender justice gets derailed. We are going to continue fighting for the abolition of triple talaq and ensure women’s rights based on Quranic principles.”
Adds Aishwarya Bhati, former secretary, Supreme Court Bar Association: “Religious gurus spread the wrong message under their propaganda. The rights under Article 25 to 28 (rights of religion) are secured fully. If we can have one country, one tax, why can’t we have one law for all? The debate of the Uniform Civil Code has become a tool to oppress women.”
There is no question that such laws are regressive and archaic but successive governments have refused to intervene in order to appeal to crucial vote banks, or to preserve them. The history of the UCC since its birth in Article 44 of the constitution has been governed by vote bank politics. In 1986, the Supreme Court of India decided in favor of a Muslim woman, granting her maintenance after she was divorced by her husband. The Rajiv Gandhi government panicked, fearing loss of its Muslim vote bank and hastily introduced a bill that virtually nullified the judgment. The woman’s name was Shah Bano.
Now, another divorced Muslim woman, Shayara Bano, has revived the UCC debate and, with crucial state elections nearing, it has the potential to snowball into a major controversy.
The opposition has accused the BJP of trying to solidify its Hindu vote bank on the eve of state elections in UP, a charge that it will find difficult to counter considering its own record with women’s rights is suspect and it faces a huge trust deficit with minorities. Then there are the constitutional speed-breakers. Imposing the Uniform Civil Code would require the amendment of not just Article 370 that grants special status to Jammu and Kashmir, but also the north-eastern states.
Under Articles 371A and 371G, parliamentary law cannot impose on customary practices unless the legislatures of Nagaland and Mizoram vote their approval. Similarly, the Sixth Schedule grants law-making power involving customs and family law to the regional and district councils in tribal areas of Assam, Meghalaya, Tripura and Mizoram. The key issue is that the UCC comes under the Directive Principles of the Constitution. Says Pushpendra Singh, additional advocate general, Rajasthan: “Directive principles, though not enforceable, is a direction given to the government by the constitution. If we want a reformative society, it is necessary to give special status to women.”
Moreover, even the Hindu Code is not binding on all Hindus. Some aspects of marriage laws and adoption are left to custom while the Hindu Undivided Family concept has its own tax laws and (male-oriented) rules regarding inheritance and management of properties. Similarly, there are regional variations to do with marriage and succession rights in Tamil Nadu and Kerala which will need to be amended and negotiated. Goa is the only state (see box) to have a Uniform Civil Code but it contains separate provisions for followers of different religions.
On an All-India basis, every community follows different rules when it comes to an issue like divorce. For Christians, a petition for dissolution of marriage by mutual consent can be filed only after a judicial separation of two years. Under the Special Marriage Act, the Hindu Marriage Act and the Parsi Marriage and Divorce Act, it is one year. Bishop Yuhanon Mar Demetrios, Metropolitan of the Kerala-based Malankara Orthodox Syrian Church, told India Legal that as far as Christians are concerned, if the UCC leads to an equitable, just and egalitarian society, they would go along with it. “Constitutional rights should be protected. It is a good idea to have one law but we need to see the finer details of it. As far as Christian marriage laws are concerned, the UCC won’t affect us as much as other communities. The Indian Christian Marriage Act serves us well.”
The crux of the issue lies in the fact that a majority of personal or religious laws, regardless of communities, are skewed against women. The most glaring example of that lies in the khap panchayats, the quasi-judicial bodies that pronounce harsh punishments, including honor killings and banishment, based on age-old customs and traditions which are extremely regressive, even medieval. In Haryana, western Uttar Pradesh and parts of Rajasthan, their decisions are binding on the villages they sit in judgment over. The Supreme Court had declared them as illegal but despite that, the present government of Haryana states that they serve a “useful social purpose” and they will not be banned.
Then there is the ongoing controversy over the Jain community and their fasting rituals which led to the death of a teenage girl last month. No government has dared to interfere in what is a cruel and life-threatening personal law. Such striking anomalies across the board in Indian society would suggest that a Uniform Civil Code is the answer. Yet, among the more enlightened members of society, the idea of all personal laws conforming to a single and largely abstract level of uniformity is, equally, difficult to support.
Congress leader Veerappa Moily while stating that “in a country of this nature, implementation of Uniform Civil Code is next to impossible”, pointed out that close to 300 personal laws exist in India covering various communities, caste and regions. Some of these extend to adivasis and tribals. Women from the Oran and Ho communities of Jharkhand have challenged the constitutionality of the Chotanagpur Land Tenancy Act, which limited the right to cultivate jungle land to male descendants. The Supreme Court upheld the constitutionality of the Act but held that female heirs of the last male tenant could hold and use the land as long as they were dependent on it for their livelihood. It was a compromise solution that left tribal laws unchanged.
So is there a way out of this tangled web? As of now, there is no model draft and with the current suspicion about the BJP’s intentions, many fear it will be a Hindu law packaged as bringing about gender-sensitive social reforms. Former Prime Minister AB Vajpayee, during his tenure, declared that any new UCC would comprise the best elements in all personal laws.
Constitutional experts agree that the best way forward is to encourage various communities to reform their own personal laws. In today’s age, it is disgraceful and abhorrent that practices such as triple talaq and polygamy can exist when most Islamic countries, including Pakistan, have banned such practices.
That also applies to many laws relating to marriage and inheritance for Hindus which discriminate against women. Says Pushpendra Singh: “We urgently need a number of reforms for women and we can’t take the back-foot just because it is related to any religion. We have seen a Uniform Civil Code being successfully implemented in Goa. We can do it for the rest of the country too.”
The UCC is, however, an emotive, even adversarial issue and legal experts agree that any implantation will require incremental steps and discussions with stakeholders before it can be begin its legislative journey. With state elections looming, any attempt to fast-track the process will face an uncivil reaction.
Lead Picture: Muslim women hold placards in support of the All India Muslim Personal Law Board during a signature campaign in Ahmedabad. Photo: UNI