The unseemly politics of the Uniform Civil Code

Captain G.R. Gopinath

is a soldier, farmer and founder of Air Deccan

A common civil and penal code would ensure that all are equal
under the law

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.

Playing politics
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
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 a!ect 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, di!erences 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 e!orts 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 o!ered was that it was a
Personal Law Board. One of the bizarre arguments o!ered 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.