Efforts towards Uniform Civil Code-an historical account

Prof. Dr. Vasanti Rasam

Dept. of Political Science,
Shivaji University, Kolhapur.

_____________________________________________________________
It has been an established fact that it is through the personal laws, may that be of Hindu,
Muslim, Christians or Parses, women subordination, exploitation, exclusion, denial of equal
socio-economic-political rights has been maintained through Patriarchal structures and social
system based on their respective personal laws. Even after sixty two years of independence and
the coming of women’s liberation movement, India still is caught in the vicious social set up
enrooted in the patriarchal domain and practicing sex inequality particularly based on personal
laws. In fact it could be pointed out that Art.37 declares that though the provision contained in
Art.44 are not enforceable in or by any court as the provisions therein laid by fundamental rights,’
yet the principles there in laid down are never the less fundamental in the governance of the
country and it shall be the duty of the State to apply these principles in making laws.
Art.44 of the Indian Constitution has been a matter to be seriously addressed in the
context of the cases challenging sex inequality and especially in case of personal laws. The Indian
courts which we mean ‘a systematic collection of status body of law, so arranged as to avoid
inconsistency and over rapping, has been in existence since ancient times through Manusmriti or
codes put forth by Yajnavalky, Brihaspati, Narada, Parashara etc. Even the British after
consolidating their position, concentrated upon codification through the Charter Act of’1833. The
first Law Commission under Ford Macaulay’s Chairmanship was set up, which drafted a number
of codes like Indian Penal Code, Civil Procedure Code, Indian Limitation Act, which were passed
later on.
In fact, there was a profound misunderstanding of the pre-colonial system that led the
British to believe that religious and scriptural tradition was the basis of all custom, morality, and
jurisprudence. Thereby since 1770s the British concentrated on codifying Hindu and Islamic laws
and administering these in court with the aid of pundits and maulavis i.e. Hindu and Muslim
scholars and priests. Hence precisely Uniform civil code aroused as a debate between the Hindu-
Muslim religious communities. The codification was a great task which involved selection,
appropriation and renovation of scriptural texts which were large in number and at many
instances, contradictory in nature. The religious scholars – pundits and maulavis tried to have the
caste and class implications on these laws. Hence the debate for the Uniform civil code basically
relates to the contest between the Hindu and Muslim Communities. The codified family law was
designated in 1860-61 as the domain of personal law which was drawn from religious principles
and was kept away from the secular, civil and criminal legal system that was based on English
Law and developed by British in India. (Lata Mani 1989„Contentious Traditions:The debate on
Sati in Colonial India Women and Law in Colonial India: A Social History Nair 1996Kali for
Women in collaboration with the National Law School of India University, 1996 ) Thus patriarchy
was brought in a new form through the new laws based on religious scripture and to maintain
patriarchy, control over property and labor were established through religion, community and
custom, all three of which could be manipulated at many levels (Sen 1996, 1999b).
While personal laws were being codified by the East India Company, the argument that
the laws were based on Indian Religions custom and practice helped the British to be familiar with
the Indians. While on the other hand as religion formed the basis of the laws, communities that
were predefined by religious affiliation, are reflected in the political system through separate
electorates. Although this provision did not exist after independence, yet through the
constitutional provisions and fundamental rights, the rights of minorities to practice their religions
were protected. Personal laws became the ground of religious difference, and Indian state’s

1
commitment to minority rights which ultimately led to political identity of the community and an
effective ground for communal mobilization.

Efforts towards reform

Against this brief background of establishment of deep rooted patriarchy it would be
definitely fruitful to understand the efforts made towards the codification of Personal Laws in the
pre-independence period especially since 1820 with the writing of James Mill on History of India
in 1817, in which he considered that the condition of women in a society is an index of that
society’s place in civilization. In one fell swoop, “women”, “modernity” and “nation” became
essential and inseparable elements in a connected discourse of civilization (D.Chakrabarty 1994).
During the British rule the atrocities practiced against Indian women became a confirmation of the
rulers’ modernity and the moral ground on which their ‘Civilizing’ mission could be launched. As
outsiders they could claim the role of protector of Indian women, interceding on their behalf
against brutal patriarchal practices (Sinha 1995). The atrocities that were based on customs of
India included the ‘Sati’ system i.e. burning widows alive on the funeral pyres of their dead
husbands, ascetic widowhood female infanticide, child marriages, etc. which were in fact barbaric
traditional practices against women. Such practices were largely related to the upper caste of the
Indian society. It was against this kind of barbaric traditional practices based on religion that was
criticized by the urban elite and upper caste men of the Indian society. This led to the emergence
of social reform movement during 1820s to 1850s. Women atrocities were the foremost important
issue on the agenda of the social reform movement. For reformers, women’s emancipation was a
prerequisite to national regeneration and an index of national achievement in the connected
discourse of civilization, progress, modernity, and nationalism (Sen 1993). The reform movement
confirmed two most important trends – one concerned with bringing in legislative measures and
interventions with a wider programme of female emancipation. This led to establishment of
organization like the Brahmo Samaj, Prarthana Samaj, Arya Samaj and the Theosophical Society,
etc. challenging the women subjected rituals and social restrictions. The second trend was
concerned to create a ‘new women’ through education. This led to educate women and eventually
draw them into the public sphere through employment, political participation and leadership.
Although through the above reform movement women who struggled to get educated and
achieve a place in public life, did so at the cost of social ridicule, ostracism, and harassment. The
liberal section of the Indian society i.e. the new elite demanded legal and administration initiative
from the colonial state for their reforms, while the conservative Indian opinion resisted the
intervention into traditional social relations. This led to two groups who were trying to in fact
define tradition and Indian’ ness and consequently led to the evolution of the domestic and the
public domain. The early nationalist opposed colonial interventions in gender relations on the
grounds that these were anti-traditional and therefore, anti-national. It was only the “new women”
who were belonging to the upper caste and elite class who began to speak in the 1880s questioned
their subordination through writings, criticizing the Brahminical patriarchy. Besides there was also
an effort to gain equality through forming associations and participation in politics. Here we need
to mention the efforts of Saraladevi Choudharani who initiated formation of Bharat Stree
Mahamandal in Allahabad in 1910. But before Saraladevi several women groups in associations
which were initiated by men included Bharat Ashram (Bengal) formed by Keshab Chander Sen,
Arya Mahila Samaj (Bombay) formed by Pandita Ramabai and Justice Ranade, Bharat Mahila
Parishad as a part of National social conference and Anjuman-e-Khawatin-e-Islam (The Muslim
Women’s Association) in Punjab, established by Amir-un-Nisa. As these women initiated
associations on one hand, they were also inspiring women towards access to education and
entering into public life the also impose traditional gender roles and values. This led to organize
women-only association in the early years of 20 th century. The limitations of these associations
who were addressing women issues were mostly city-based, small, limited and dispersed

2
concentrating on livelihood solutions such as sewing and embroidery, handicrafts like weaving
and pottery which were traditional and gender based.
National level associations of women emerged in the earlier spurt of nationalist
movement. The ‘Women’s Indian Association’ was launched 1917 and claimed to represent
women of all races, cultures, and religions. But in fact it remained highly limited in class and
caste composition and failed to spread outside the Madras presidency. The National council of
Indian women was established in 1925 which was set up as a national branch of the International
Council for Women led by elite and upper class women at Bombay. These women considered
charity as the main purpose and objective of the council. This association led by elite women
failed to address the basic grassroots’ women issues. The All-India women’s Conference was
established in 1927 in alliance with the Indian National Congress. In fact this organization was
most successful in achieving representation of women at national level and tackling women issues
particularly the long standing child marriage and the age of consent issues. Women’s organization
actively organized in support of the Sarda Bill because from the beginning they had identified
child marriage as a major impediment to women’s progress that ‘crushed… [Women’s]
individuality and denied them opportunities for education and development of mind and body’
(Akilabai, quoted in Forbes 1996-87). The Muslim community was against these measures, while
the Muslim women members of the Women’s Indian Association submitted a special petition, as
follows –
“We speak also on behalf of the Muslim women of India assert that it is only a small
section of Mussalman men who have been approaching your Excellency and demanding
exemption from the Act. This Act affects girls and women far more than it affects men and we
deny their right to speak on our behalf (WIA, Appendix, Report 1930-31), Muslim Ladies Defend
Sarda Act)” This led to the passage of the Child Marriage Restraint Act which also applicable to
Muslims community.
It was only upto 1930s that women established their hegemony through which they
represented at national and international issues and seemed to evolve an equal partnership in the
nation to be. But this hegemony was not to stay for long because as the freedom movement
gathered momentum, priorities changed and as Geraldine Forbes argues a new kind of feminine
political role was fashioned in the course of the national freedom movement. By 1940s; All India
Women’s Organization was windswept within the nationalist movement, as also due to the
growing communalism that led to partition, war and famine. Besides the All Indian Women’s
Organization was too Hindu, too middleclass, and too urban, to adequately represent the Indian
women of all levels. Even the left women’s organization were not able to lead to significant mass
mobilization of women gender issues although they did significant relief work during famine, war
and partition. After independence large all-India women’s organization became institutionalized
and tuned to be welfarist and the upper and middle class women seemed to be the beneficiaries of
the new Nation-State system. The National Federation of Indian Women was established in 1954
by the Communist Party, peasant and working class women were also active in the nation
building and the like kind of small organizations which were trying to makes space for themselves
existed.
While on the other hand the British Government initially promulgated the Indian penal
code in 1860, a secular code of criminal law (without considering the Indian cultural base,
ignoring the Indian caste system or religions diversity) establishing the principle of equality
before law, to maintain law and order. Further we have Laws of Contract, Transfer of Property,
Sale of Goods, Evidence Act (1872) Partnership Act, Civil Procedure (1908) crimes (1882) and
Criminal Procedures which are commonly applied to all, across the country contravening religious
and customary practices. But regarding the personal laws, the Britishers left it to the purview of
the concerned religious communities; deliberately keeping the various religions based personal
laws segregated as a British State Policy, maintaining the separate feudal religious establishments.
The Nehru report in 1928, which was in fact considered to be a draft of the Constitution of Free

3
India, advocated for uniform law in free India for matters pertaining to marriage. The existence of
different religious based personal laws was in fact looked upon as being consistent with the
egalitarian philosophy of our new national charter.
One of the important steps towards the Uniform Civil Code which has been largely
ignored was the motion of Hindu Code Bill by Dr.Babasaheb Ambedkar. The defeat of the motion
had led to Dr.Ambedkar’s resignation as a Law Minister. Dr.Babasaheb Ambedkar insisted on the
codification of Hindu laws as he felt that the right to citizenship is not limited to economic and
political equality but in fact, in a secular framework, as defined in our Constitution as the
inequalities amongst the citizens based on caste continues to be entrenched in the religious life of
Hindu majority. Hence he felt that our Constitution does not deal with religious life of the citizens,
but in fact by providing right to profess any religion, it has made space for preservation and
reproduction of inequalities among citizens. Dr.Ambedkar’s foresight is in fact praiseworthy as he
felt that codification of Hindu laws would set the ball rolling as precedence for the movement
towards a secular uniform civil code.
The opposition to this Bill from the orthodox forces was based on question of caste and
gender and fear of destructing traditional family system. The defenders of the brahminical Hindu
social order cried against the reform of Hindu personal laws protesting that the Muslims should be
forced adopt of Uniform Civil Code. Dr.Ambedkar was strongly against this, he gave the highest
priority to the reform and codification of Hindu personal laws which affected the majority of
citizens, then, as now. Hindu fundamentalists tried to present the Uniform Civil Code as a
necessity for the modernization of the Muslim community. While to Dr.Ambedkar instead of
relegating religious life to private sphere like marriage, divorce succession, inheritance, with the
codification of Hindu law, there would have been recognition that certain principles of social
reform are to be applied to the private sphere as well. Dr.Ambedkar argued that unless the Hindu
community adopted a code that included a cohesive set of principles of reducing caste and gender
based inequalities in personal law, it had no right to insist on imposing a Uniform Civil Code on
Muslims. Hence the whole debate over the Hindu Code Bill in the Lok Sabha in 1947 points out
that the arguments made by Dr.Ambedkar are still very much relevant even today, especially those
debates related to the caste system in which subjugation of women is central to the system. The
Bill as a whole, as put forth by Dr. Ambedkar was not passed, as it was seen as a direct challenge
to the patriarchal and caste based Hindu order. But by passing it in pieces separately and not as a
whole as put forth by Dr. Ambedkar, no threat was felt. Hence, the Hindu Code was part by part
passed by the Lok Sabha in mid 1950’s in the form of Hindu Marriage Bill, Hindu Succession
Bill, Hindu Minority and Guardianship and Hindu Adoption and Maintenance Bill.
The reason for having concentrated on reforming Hindu personal law first was the
immediate political context but the opponents of the Hindu Code Bill argued that it was unfair to
target one community for reform and that a Uniform Civil Code was the only legitimate
instrument of reform. While issues of national integration dominated the debate on the Hindu
Code Bill its implications for gender relations within the family attracted attention. The
communist movement attempted to revive the Uniform Civil Code within the framework of
gender politics but women’s right was related to the concerns of national integrity, modernity and
progress. Thus personal laws and Uniform Civil Code became the primary basis of a
constitutional and a structural opposition between the fundamental rights of minorities and of
women. This was settled in favor of religion by the judiciary in the early years of independence.
The judgments became precedent which led to pitting women’s rights against community rights,
giving precedence to the latter. In various judgments given by the Supreme Court as well as the
lower court during 1950’s never the less had pointed out that the State should make efforts
towards Uniform Civil Code especially related to the issues of anomalies in the Muslim legal
system.
Another reason for the Hindu Code Bill (HCB) not being accepted was that the
codification was not done on the ground of the sacred texts, but on the modern grounds of

4
rationality and the social needs. The HCB did not in fact conform to the precept of Manu or Yagna
Valkya and was a radical departure from the traditional-patriarchal Hindu culture and practices, a
path breaking effort made by Dr.Babasaheb Ambedkar. It is rather surprising that a Bill which
recognized intrinsic relation between caste and patriarchy in Indian society and laid down a
juridical base for the future political movements to extend the scope of the rights of women, was
not being referred to, in the recent debates on the uniform civil code. The ground based argument
of Hindu Code Bill that rule of caste endogamy leads to control over the women’s sexual behavior
and all social behavior, in which the religious authorities have social effects especially in relation
to caste and gender seems to have been deliberately ignored then and even now. Thus linking
patriarchy and caste was an important issue involved then and is still relevant now, to which
Dr.Ambedkar was sensitive to, through out his efforts through the Hindu Code Bill.
The turning point came in 1970s with the influence of ‘new feminism’ that came in
through developed western countries led to the international year and then decade of women in
1971 with a focus on development rather then welfare of the women. The report of the Committee
on the Status of Women (1974) pointed out towards the gender disparities widening in almost all
the spheres of life, like employment, health, education and political participation. The women’s
organizations in the post independence period were more local tightly knit with focused agendas
like Progressive Organization of Women, Shahada movement in the Dhulia district, Shramik
Sanghtana, Self-Employed Women’s Association, United Women’s Anti-Price Rise Front, Nav
Nirman, Bodhgaya Movement, Chipko Movement, Mathura rape case, Communist Women
National Organizations, etc. Later on the feminist movement developed to be nationalist in scope
with mass connections in the second phase of the movement where issues like Mathura Rape Case
led to a countrywide protest similarly dowry death cases and a domestic violence led to a wider
movement for the amendment of laws. From the mid-to late 1980s women’s groups concentrated
on providing services to individual women to enable them to gain advantages already given in
law. It was experienced that without political will or women’s empowerment and ability to claim
and assert legal rights, laws would subsist on paper only.
As seen above the Muslim women were largely excluded from the national level
as well as local level associations for reasons of their own customs as well as being neglected
approach of the women associations and organization towards the specific Muslim women issues
arousing from their personal laws. Hence an effort towards Islamic feminist movement in India,
dedicated to the goal of achieving gender equity under Muslim Personal law could be traced.
Peculiarly, in justifying their demands, these women activists refer neither to the Indian
Constitution nor to the universalistic human rights principles that guide secular feminists
campaigning for passage of a gender neutral Uniform Civil Code of personal law, but rather to the
authority of the Quran which they claim, grants Muslim women numerous rights that in practice
are routinely denied them. They accuse the male ulema of foisting patriarchal interpretations of
the Quran on the unlettered Muslim. (Salvia Vatuk, Islamic Feminism in India, 2007) Growing
number of Muslim women in India have been publicly calling for reform of Muslim Personal Law
(MPL), justifying their demands for gender equity with religious arguments, referring to the
authority of the Quran rather than to the Indian Constitution or to the universalistic principles of
human rights that have long guided Indian secular feminists in their campaigns for a gender
neutral Uniform Civil Code (UCC) of personal law. These women are part of a trend observable
all over the Muslim world, in which ‘a new breed of Muslim women scholar-activists’ is seriously
and critically studying the foundational texts of their religion, challenging conventional histories
and canonical texts … pointing to the openness of the Quran and Sunna to ijtihad … looking at
the context in which the Quran was revealed … (and) applying this understanding to the present
so as to question the ways in which Islamic knowledge has been produced. (Moghadam,-2007)
Still further, there has been a lot of debate and discussion as to whether we could call the Muslim
women’s struggle for their rights to be Muslim feminist movement as they, as discussed above,
limit their demands and reforms to be within the Quranic authority. Muslim feminist movement

5
in India is not yet an organized ‘social movement’, in the strict sense of that term. It is being
pursued by a rather amorphous assortment of individuals and groups, all engaged in avid
discussion and debate about the negative impact of MPL on women but only loosely organized in
terms of action. (M.Moghadam-1994) Though most work quite independently or in small
groups, they are well aware of one another and meet and exchange ideas. The formation of
an All-India Muslim Women’s Personal Law Board (AIMWPLB) in 2007 drew national and
even some international media attention. (Tarannum Manjul, -2005] The organization was
conceived by a small group of prominent women who had gathered in Lucknow for a
wedding. They cited as the motive for their action the failure of the mainly male All-India
Muslim Personal Law Board (AIMPLB) which is a self-appointed body established in 1973
‘to protect the Muslim Personal Law in India’.

6
 ‘Despite prattling about working for the rights of the women, the men-dominated boards
took no account of the voice of women (Manjul, ‘Four Law Boards’-2005) Women’s Personal
Law Board assembled 35 women, representing the major sects and schools of Islamic
jurisprudence and including a few Hindus. The AIMWPLB was greeted by condemnation and
derision from members of the AIMPLB, who denied its legitimacy and questioned the women’s
scholarly credentials and political motives. The AIMPLB was already becoming increasingly
sensitive to charges from both within and outside of the community – of failing to address
women’s problems. It had begun to pay more attention to such issues at its annual meetings. In
2000 the Board was enlarged and the number of slots reserved for ‘lady members’ was increased
from 15 seats (10%) were reserved for women to 25. But women still represent only 12% of its
membership. Even if they voted as a bloc they could not seriously influence the outcome of the
Board’s deliberations. Some observers complain that these women do little to promote women’s
causes in any case, either because they genuinely share the conservative outlook of the male
majority or because they are simply too scared to speak out against [the Board’s] patently
patriarchal biases … They fear that if they do, they might be accused of dividing the community
or challenging the authority of the mullahs. (Yoginder Sikand, ‘Interview: Hasnath Mansur, 2005)
In all fairness, it should be noted that several of these women have taken strong pro-
woman positions during the Board’s deliberations in recent years. Begun Naseem Iqtedar Ali, the
sole woman on the Executive Committee, even after much effort was not successful to insert a
provision for ‘delegated divorce’. But so far they have little to show for their efforts. Neither the
women behind the Lucknow initiative nor other women’s rights activists are asking that MPL be
abolished or secularized, nor do most of them favour passage of a Uniform Civil Code. By and
large they identify themselves as devout Muslims and many affirm their willingness to be
governed entirely by Muslim law in the realm of family relations. But they resist being told by the
AIMPLB or any other male clerical organization what that law consists of. They insist that MPL is
not ‘a true reflection of the intention of the Quran’. (Yoginder Sikand- ‘Interview with Suraiya
Tabassum’ 2004.) They consider the text to be supportive of the principle of gender equality but
claim that over the centuries it has been subjected to highly ‘patriarchal’ readings, leading to
women being deprived of many of their God-given rights. As one activist explained: ‘According
to most people’s understanding of Islam, all of the rights belong to men, all of the duties to
women!’(Yoginder Sikand Interview, Noorjahan Begum, January 3, 2006) And another told me:
There are so many rights given to women in the Quran that are not found in the books of
any other religion. But the religious authorities mislead people, they misuse their position … The
‘ulema’ are an almost entirely male group. They give everything a patriarchal interpretation …
interpreting the texts to suit their own interests. (Yoginder Sikand Interview, Neelofar Akhtar,
November 30, 2005). Muslim women’s rights activists assert their right to read the Quran for
themselves and interpret it in a woman-friendly way. They point to God’s command that all
believers read and study the Holy Book, using their own reasoning abilities to understand it, rather
than relying on intermediaries: The Quran clearly says that there is no clergy. So the ‘ulama’ have
no right to tell me anything. Their job is to tell women to read the Quran, not to tell women what
the Quran says! (Yoginder Sikand Interview, Hasnath Mansur, November 25, 2005)
Thus insisting on going back to the foundational Islamic text for guidance, Muslim women are
reclaiming the right to ijtihad that the Sunni establishment maintains was foreclosed many
centuries ago. These women also reject the notion, so often put forward by clerics to justify
their opposition to state-initiated legal reform, that MPL is divinely given and therefore
inalterable. They point out that MPL was created during the colonial period. Though based
on Islamic law (shariat), it has been modified by judicial precedent and by several legislative
enactments that in each case, e.g. the Wakf Validating Act 1913, Shariat Application Act
1937, Dissolution of Muslim Marriages Act 1939 (DMMA) and Muslim Women (Protection
of Rights on Divorce) Act 1986 (MWA) have been modified forms so that any further
changes to benefit women are not acceptable today in the name of intervention.

7
 .
Thus Muslim Women’s NGO’s made its appearance in 1980’s while Muslims are
dominating, they also involve men and women from all other religions considering antithetical to
their purpose of promoting gender equity to make sectarian distinction. The most important
organizations that needs to be mentioned here are the Aawaaz-e-Niswaan (AeN) a Mumbai based
organization established in 1987 as a voice of women, Muslim Women’s Network, and the most
successful one, the ‘All India Muslim women’s Rights Network- AIWRN-1999,established by
leaders of Women Research and Action Group – WRAG and AeN. The latest that was established
in 2007, was the Delhi based Bharatiya Muslim Mahila Andolan (BMMA ) The BMMA has been
addressing not only the women issues but also the endemic poverty and illiteracy amongst
Muslims as a whole. It does not see women issues in isolation but from a wider angle including
the whole Muslim community itself. It has been questioning the role of State in the sphere of
education, employment and economic upliftment of Muslims. The fact that these NGO’s came
into being in times of heightened communal unrest – reinforce their commitment to ‘communal
harmony’. Thus summarizing the reasons of the need for the separate Muslim women’s movement
we may see that the following are the reasons;
1. The main stream / so called secular Indian Women’s Liberation Movement, in the post
Independence period did not seriously take up issues related to Muslim women. They feel
to be excluded from the mainstream women’s movement. The experience of the Muslims
of Gujarat in the wake of the 2002 genocide has given a valuable lesson that Muslims
have to stand up on their own for justice for themselves. Multiple exclusion in the
mainstream movement, just as dalit/adivasi women, Muslim women had been failed in
getting real representation in the discourse. Hence they decided to fight out for
themselves- ‘Jiski Ladai – uski Aguvai’ (She shall lead whose struggle it is!)
2. The activists have also objected to the fact that when it comes to discussing Muslims,
only people with certain specific identity – males incidentally, particularly conservative
ulema are projected as representatives of the community .It was thereby felt that since
women were excluded from discourses or denied their representation in discourses, there
was a need for a separate voice for Muslim women.
3. It has been considered that the male Muslim Leadership -religious & political, has failed
not just the Muslim women – but Muslims as a whole. Muslims remain silent on pressing
issues of Muslim women not only on issues related to outdate and patriarchal
understanding of family law but also on matters like Muslim Women’s education and
economical empowerment.
4. The role of AIMPLB and its conservative approach which reflected in the Muslim women
Protection Act-1986, its highly objectionable Model nikhanama, AIMPLB rejecting the
model nikhanama put forth by Muslim women organizations, its approach towards
Polygamy, Khul, Mehr and Talaq, and similar such issues has led the Muslim women to
speak for themselves.
5. The plight of Muslim women and Muslims in general and the enormous danger of
Hindutva fascism – needs intervention
6. Against the communal tensions of recent – it is felt that issues of Muslim women were
being side tracked in the atmosphere of heightened Muslims security and identity.
7. The politics of marginalization of the Muslim community in general and Muslim women
in particular in order to maintain their vote banks and consequently the political power

Debate on Uniform Civil Code

The most important arguments made by the Muslims who are against the Uniform Civil
Code is related to the secularism as guaranteed by Art.25 which gives a citizen of India, a right to
religion, to profess and practice their respective religions and there by the Muslims should be

8
allowed to have their personal law and practices based on their religion. The Uniform Civil Code
is seen as an intervention into their personal laws which is highly objectionable by the Muslim
community based on an argument made by the Muslim leaders who claim that the Shariat is
infallible and immutable which was raised by some Muslim members in the Constituent Assembly
of India, rejected out rightly by Dr.Ambedkar. The fact that the Shariat is not infallible or
immutable is evidenced by the patent fact that it has been discarded or modified in many respects
by various Muslim States. Even in India Quranic laws of crimes and evidence have been
supplanted as early as the 19th century by enacting the Penal Code and the Evidence Act. Besides
many of the prominent Muslim lawyers in India have also supported reform in the Muslim
personal law. “The hoax that the implementation of Art.44 would inflame the Muslims to disturb
communal harmony has been rightly met by nationalist Muslims” (Baharuddin in Aajkal -5-8-
1995) who points out that communal hatred would be perpetuated if Muslims are treated as a
separate entity in the Indian Nation – in secular matters. In fact Secularism is an anti-thesis to
Communalism and this led India towards national unity or at least it did not impede the progress
towards it. While many have argued that casteism is separatism and the goal of Socialism cannot
go along with sectarianism. Prof A.A.A. Faizi, the Muslim Philosopher in his writing entitled ‘A
Modern approach to Islam (1963) explaining the difference between law and religion says … laws
are impersonal and objective rules which the State shall apply to all citizens without exceptions.
Religion is based on personal experience…. It is a rule of conscience which is entirely man’s own
affair. Even going back to the British regime, popular Muslim jurists like Sir Syed Ahmed Khan
who was influenced by Mutazila philosophy, Ameer Ali’ Tayabjee and the like intelligentsia have
often opposed to the superstitions based on orthodoxy. Even Dr.A.A.Engineer has out rightly
commented very often in his speeches …that the issue is highly communalized and that nobody is
in a position to look at it rationally and objectively.
Those wishing the reform of the Muslim personal laws have also pointed out towards the
Muslim countries, which have made reforms in the personal law based on religion. Particularly
the Pakistan which have been governed Muslims under the Shariat Act of 1937 had actually
reformed its Muslim law. Besides Tunisia and Turkey has abolished Polygamy. Iran, South
Yemen, and Singapore have reformed their Muslim laws the question arises as to if Muslim
countries can reform Muslim personal law and if western democracies can have fully secular
systems, then why it is not possible in case of Indian Muslims. The Muslim intelligentsia like
Tahir Mahmood is in favour of either doing away with the personal law or reforming it. However,
vast majority of Muslims led by the Jumiat al-Ulama and other orthodox Muslim groups have
fought tooth and nail against any change to the personal law.
Another important argument against the Uniform Civil Code is that the Muslim being the
largest minority looks at the Uniform Civil Code as another challenge of majority communal force
imposing on them against a continuing background of violence and humiliation – all in the name
national integration. From amongst Hindutva forces, the Bharatiya Janata Party (BJP) is the most
sophisticated in its approach. Its Status Paper on the UCC brought out in 1995 tries to calm down
the fears of the minorities. “It is beyond comprehension how the common civil code is related to
the feeling of security or otherwise of Muslim community. The two are entirely unrelated to each
other… The BJP has all along whole heartedly supported the constitutional mandate of enacting a
common civil code for all citizens of India. It is of the view that it will not only pave the way for
national unity and integration, but will also remove ‘gender bias’ and promote Human Rights”.
(Status Paper, Mumbai, 1995)
But the doubt, rather one of serious nature in the mind of the Muslim minority would
allow them to simply separate the UCC from the overall motivations of a party which actively
participated in the demolition of the Babri Masjid in 1992 and the anti Muslim program in
Bombay and the mass rapes of Muslim women in Surat in Dec. 1992 and Jan.1993? Can the
Women’s Movement take the BJP’s sudden concern for removing ‘gender bias’ with any
seriousness when it has never had a record for upholding women’s rights or issues? Instead it has

9
chosen to lambaste feminists and feminism as western and irrelevant. (Murli Manohar Joshi,
Nov.1995, Asian Age) Can the Human Rights organizations believe that the BJP is interested in
promoting human rights when it tramples on those of minority communities through specious
arguments of patriotism and communal riots?
So a sudden concern for the plight of Muslim women by the rightist forces of India is
looked upon with ridicule by the Muslim masses. The BJP stand as well as the stand taken by
Sangh Parivar regarding the need for the Uniform Civil Code in the light of the backwardness of
the Muslim law has been also nullified with the argument that the Hindus personal law also has
many retrograde features which are exploitative of women. Particularly relating to Hindu
Adoption and Maintenance Act of 1956 and the Hindu Succession Act. Thus Hindu law is
considered to be much more iniquitous for women than the Muslim law and the Shariat law. The
Muslims argued that when the demand for Uniform Civil Code comes from the communalist
Hindus it arouses deep suspicions among the Muslim intelligentsia that what is being demanded is
a Hindu code. Thus it is very important for the Muslims that the Uniform Civil Code never comes
into existence, it is not mandatory on the Muslim community. Thus according to the Muslims
though the RSS-BJP-VHP triumvirate shows secularism as their only reason the Muslims
community sees it as nothing but a weapon in the Hindu Rights a quest for a Hindu State.
Thereby, it considered that the BJP and its allies have made common civil code a Hindutva agenda
and this is done not because it loves gender equality but only because it is opposed by minorities,
particularly Muslims. It was for this reason that all women’s organizations dropped the demand
for common code, as it became the Hindutva agenda. In a highly communally charged atmosphere
no minority community would welcome such a measure.
The history of India since independence has shown that communal violence has always
been there. Communal violence which would mainly mean violence between Hindus and Muslims
has been a part of the Indian fabric since independence, and communal tensions and conflicts have
only increased with the passage of time. The fact that the Hindus in India are a vast majority and
the Muslims are in the minority has only added fuel to antagonistic fire that these communities
feel towards each other. Hence the Muslims who are in the minority end up linking every move of
the Hindu community with some ulterior motive but they think will eventually consume them.
That their skepticism is system louder and their will to shove a Uniform Civil Code down the
throat of the minorities has only become stronger by the day. Thus the discrepancy between the
two religions regarding the importance of personal laws to their adherents would be of little matter
in public affairs were it not for the desire of the militant Hindu groups to employ it for political
purposes such as winning elections and for discrediting the Muslims for not being truly Indian…
Under this stimulus Muslim identification of themselves with Islam and the personal laws
accompanied it, has been greatly intensified.(Austin Granville-Religion, Personal law and Identity
in India)The Muslim community’s reaction to their position and condition in the Indian society as
against Hindu’s could also be looked upon as to be of defensive nature. Muslims feel that theirs is
a community which is constantly under pressure, supported for their cause in a very
superficial/artificial manner just for the sake of votes while their major interests are ignored and at
times even attacked.
The History of Indian Codification has continuously shown that some degree of conflict,
skepticism and resistance is inevitable. The idea of codification in a country like India which has
strong relationship with religion would be accepted with open arms and voluntarily is highly
unimaginable and unlikely. Because if you look at the efforts of codification in the mid 1950s
relating to the Hindu Personal Law through the Hindu Code Bill made on the platform of the
Indian Parliament by passing the Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and
Guardianship Bill, Hindu Adoption and Maintenance Bill, etc. were highly opposed from many
Hindu sections seen that it was a wrong policy. In fact the Hindu code was seen radical departure
from the traditional Hindu culture and practices. There by any demand for codification of personal
law of any religion is not going to be accepted openly. As this demand for codification was and is

10
been seen by the respective religious communities as interference and a subordination of its
sovereignty to interpret its own religion in its own way. Today with a deepening of democratic
processes each caste and community is becoming more conscious of its identity and today our
polity is mainly based on these identities. The politicians have been fighting elections mainly on
the basis of caste and communities and thus have aggravated feeling of identities. It can not be
denied in the existing situation that caste is being perpetuated through endogamy and operates
through a number of social and economic institutions and ensures domination of the upper castes
and preserves the subservience of the lower castes.
In such a situation, Democracy in a country like India having pluralist tradition lasting
over thousands of years cannot succeed without respecting pluralist ethos. The Indian tradition
was a tradition where people of different tradition and religions lived in peace and harmony.
Moreover the process of secularization in India is yet very slow and tortuous. Astonishingly today
in age of modernization new problems have erupted and orthodoxical-cultural and traditional
practices are gaining more importance then even before. It is felt that in many ways we are
regressive rather then progressive. The social reality needs to be taken account when we are
approaching towards reformation. A law needs to be socially rooted in order to make it acceptable.
Today the west has been looking towards the pluralist tradition as a post modernist phenomenon.
But the reality in India is much more complex than the west while we are trying to imitate the
west without understanding our own social realities and problems. Against this background if you
look at the realities of the Indian societies were there has been an outrageous violence against the
Muslims and the Christians by the Hindu right. The sequence of events that has increasingly
communalized deters the Muslims and Christians as well as the feminist who have been defending
a Uniform Civil Code including gender justice and secularism.. The Hindu- anti-minority bias, its
ideological position being conservative, its shocking and a politicized commitment to the gender
division of labor, its credentials to draft a Uniform Civil Code remain dubious. Never the less the
issue still has to be addressed because gender justice remains a desired horizon even if it is
contravention.
The basic concern regarding the Uniform Civil Code needs to be genuine concern for
gender justice and secularism. This needs to probe into the possibilities of achieving gender
justice, secularism, along with national integration and unity. There can be two ways to reach the
goal. One is legal uniformity and the other is legal pluralism. Large number of legal scholars,
Muslim as well as Hindu intelligentsia has been grappling with this question as to whether we
need to have legal uniformity or legal pluralism would be suitable.

References:

1. Engineer Asghar Ali, ‘Uniform Civil Code or Legal Pluralism’, Institute of Islamic Studies
and Centre for Study of Society and Secularism, 2003
2. Engineer Asghar Ali (1993) : Problems of Muslim women in India- an introduction, Bombay:
Institute of Islamic Studies.
3. Engineer Ali Asghar, ‘Indian Muslims and the Muslim Personal Law Board’, Secular
Perspective, Feb. 16-28, 2005
4. Engineer Asghar Ali – Institute of Islamic Studies & Centre for Study of Society and
Secularism – Uniform Civil Code or Legal Pluralism –August, 2003
5. Forbes, Geraldine H. Women in Modern India. New York, NY: Cambridge University Press,
1996.
6. Sen, and Nussbaum 1993 ... and in the private sphere (structured by religions ...
www.universitasforum.org/index.php/ojs/article/view/24/92
7. Sen -Women in Modern India in Historyof India,Cambridge University Press, Cambridge1996

11
8. Moghadam, ‘Islamic Feminism and its Discontents: Toward a Resolution of the Debate’, Signs
27/4(2002)
9. M.Moghadam (ed.), Identity Politics and Women: Cultural Reassertions and Feminisms in
International Perspective (Boulder: West view Press 1994)
10. Sen, I. - A Space within the struggle: women's participation in people's movements. Kali for
Women. 1990.
11. Sen Samita – Policy research report on ‘Gender And Development’ working Paper Series No.9 –
‘Towards a Feminist Politics? The Indian Women’s Movement in Historical Perspective’ – April
2000
12. Tarannum Manjul, ‘Four Law Boards: Will Muslim Women Find a “Masiha”?’
(http://www.sawf.org/newedit/edit02072005/index.asp [February 7, 2005]

13. Vatuk Salvia, ‘Islamic Feminism in India: Indian Muslim Women Activists and the Reform of
Muslim Personal Law’, Modern Asian Studies, Cambridge University Press, 2007
14. Valentine M.Moghadam, Toward Gender Equality in the Arab/Middle East Region: Islam,
Culture and Feminist Activism, HDR Office Occasional Paper (New York: UNDP 2004), p.53

15. Yoginder Sikand, ‘Interview: Hasnath Mansur on Muslim Women and the All India Muslim
Personal Law Board’, http://www.islaminterfaith.org (February 12, 2005), accessed March 8,
2005)
16. Yoginder Sikand, ‘Islam and Gender Justice: Interview with Suraiya Tabassum’,
http://www.islaminterfaith.org (December 6, 2004), accessed March 8, 2005
17. Yoginder Sikand, ‘The Muslim Personal Law Debate: Need to Listen to Alternative Voices’,
http://www.islaminterfaith.org (May 5, 2005), accessed May 7, 2005

12
13