The minorities in India have failed to understand the true significance of the uniform civil code and they have been encouraged to oppose it by vested political parties who have created a simulated insecurity in them regarding their religious identity, constitutional experts told The Sunday Guardian. Experts said the uniform civil code is needed to end gender discrimination stemming from the misuse of personal laws, but while much of the Muslim world has either discarded or denounced the right to triple taalq and polygamy among Muslim men, Muslims in India perceive UCC as a tool to undermine their religion, because of a disinformation campaign done by those who practise “vote bank politics”.
“The creation of insecurity in Muslims has been the national agenda of several political parties and there is a vested interest in sustaining it. In the existing scenario of competitive politics, with a communal dimension being rampantly practised in India, any consensus on the UCC seems to be a complete mirage,” Aman Lekhi, Supreme Court lawyer, told this correspondent.
At a time when the BJP-led NDA government at the Centre has referred the matter to the Law Commission, Lekhi said there is an urgent need to explain to the minorities that UCC has been envisaged to liberate women from subjugation brought about by personal laws, and that it is not a threat to one’s religious identity, as the clergy often suggests. “The greatest good is not dependent on the subjective satisfaction of the leadership of a community. The problem is that those who are in power are afraid of losing elections and those who are aspiring for power are waiting for a person to make a mistake on that count. As a result, the leadership has been taking options which are safe and the UCC has slipped to the back burner,” Lekhi said.
Experts said that in matters of criminal laws and procedural laws, India does not have separate laws for the minorities as they have become acclimatised with that and do not feel threatened. But in the case of personal laws, “scepticism has been engendered”.
Plight of women
K.T. Tulsi, well-known Supreme Court lawyer, said the lack of uniform civil code is giving way to discrimination. “If Constitution is the supreme law of the land, then how come women are not accorded the same rights in the matter of marriage and divorce as men? Discrimination on any count cannot be permitted,” Tulsi told The Sunday Guardian, endorsing UCC. He lamented that while one-sided divorce has been banned in most part of the Muslim world, India lags behind as the political leadership in the last six decades has not prepared the minorities for reform.
“The Sharia or the Shura 65 in Quran itself does not permit triple talaq. It prescribes in Shura 65, verse 1, the waiting period of six months. It requires witnesses, and therefore, divorces by the telephone are not permitted in Islam,” Tulsi pointed out, while maintaining that there is a large scale exploitation of women due to a flawed understanding of the personal laws. Notably, in the Muslim world, such misinterpretation of the personal laws has not gone unnoticed.
The triple talaq has been made illegal in Pakistan since 1961. Second marriage has been banned in Indonesia, Malaysia, and Brunei. Second marriage is discouraged in Iran, Iraq, Syria and Bangladesh. Husbands and wives are guaranteed equal rights in Turkey and Iran, which also follow the Sharia.
But in India, Tulsi said, Muslims are holding back their own brethren because there is comparatively less education, less prosperity, and their illiteracy is being exploited by their religious leaders.
“The Muslim clergy will have to fall in line. They cannot ignore the move towards equality,” Tulsi maintained, while citing the A.S. Praveen Akhtar case as an illustration of how personal laws are being used as a vehicle for exploitation. “In A.S. Praveen Akhtar’s case, the Bombay HC had quashed Section 2 of the Muslim Personal Law Board as unconstitutional. In this case, the Muslim husband had demanded dowry, and had given talaq to his wife on her failure to be able to provide that. But the HC said this is illegal,” Tulsi recounted.
But senior Delhi High Court advocate Rebecca John differs. She is of the opinion that the Centre is trying to “shoot (the uniform civil code) from the shoulders of women”. “The government of the day almost wishes the public to believe that the only reason they are bringing in the uniform civil code is to ensure there is gender equality. I don’t want a code where one community imposes its will over another community ostensibly on the ground that the other community has laws which are anti-women,” she said, adding that as a feminist she would like to see the abolition of triple talaq and all other laws where women are subjugated to a second class citizen.
John told this correspondent that the whole approach has become adversarial. “While it may be possible to bring out a basic code, which is beneficial to all concerned and a dialogue towards that must proceed, I have problems when you maintain the status quo as far as the majority community’s family structure is concerned,” Rebecca contended. She pointed out that the Hindu undivided family gets tax breaks, tax benefits, even though there is no reason why such provisions for tax concessions should survive in modern India.
“Will the concept of the Hindu undivided family be allowed to go in the UCC? You cannot ask communities to conform to a standard if the majority community itself does not wish to conform to that standard,” she argued.
Some scholars contend that Article 25 mandates that the state and its institutions should not interfere in matters of religion, including in relation to the various personal laws, and hence, a uniform civil code will essentially mean violation of the spirit of this Article. But Tulsi disagrees. “They can propagate and practice their religion. But they cannot treat their women in a manner by which the latter is deprived of the right of equality or the right to live with dignity which is guaranteed by the Constitution of India. The UCC won’t violate Article 25,” he told this newspaper.
Ambedkar advocated UCC
It is significant to mention that during the debates in the Constituent Assembly, B.R. Ambedkar had strongly advocated doing away with all personal laws.
“I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights,” he had said. His recommendations were, however, opposed tooth and nail by the traditionalists belonging to both Hindu and Muslim communities, and all that he could secure was a mere mention of UCC in the non-binding Directive Principles of State Policy.
The opposition from the Hindu conservatives to the Hindu Code Bill was gradually overcome, paving the way for reformation in laws guiding marriage, divorce, adoption and inheritance among other practices. Lekhi said the Hindu opposition was overcome as Hindus as a community are more receptive to change. “The problem with the Abrahamic religions is that they being religions of the book, there is the perception that what is prescribed in the book has to be followed and anything which is contrary is to be avoided,” Lekhi said, trying to explain the mindset which is against UCC. He added that “the purpose of governance is to change mindset, which is in some way averse to improving the situation”.
Significantly, in response to Ambedkar’s recommendations, the Muslim Personal Law Board had said at the time that they were examining the recommendations and will come back with a response. But they never did, thus denying women of the community the right of maintenance, the right of life with dignity.
Tread with caution
Lekhi said Muslim scepticism regarding UCC is further cemented by such people or groups who offer the flawed argument that reform is needed in order to unify the country. “UCC is usually couched in the expression of it being necessary for unity. We don’t need UCC to unify the country; we are sufficiently integrated. UCC needs to be made mandatory because of the equality aspect,” Lekhi said, while advising the government to tread with caution. “This is an emotive issue. In my opinion, it is better to proceed incrementally, dealing with target areas which require immediate attention. UCC is a correct thing to do, but what is done as a correct thing should be perceived as a correct thing, too,” he said.