Mainstream, VOL LIV No 44 New Delhi October 22, 2016
Uniform Civil Code: Why and How?
Sunday 23 October 2016
by Ram Puniyani
What is called a Uniform Civil Code (UCC) deals with the personal laws (marriage, divorce, maintenance, custody and inheritance). Our criminal and civil laws are the same for all the religious communities but our personal laws have been related and linked to religion. So there are separate laws for the Hindus, Muslims and Christians. Ironically Jains, Buddhists and Sikhs are included in the Hindus. The prevalent laws and norms among diverse Hindu communities are not the same for all Hindus as there is a large number of variations among them. During the Constituent Assembly debates what finally emerged was that the personal laws should continue as such. In Article 44 of the the Directive Principles of State Policy it was stated that the state shall try to evolve uniform common laws for all the citizens of India, irrespective of their religion. The aim was to bring these laws in consonance with the concept of justice.
At the same time Nehru called upon B.R. Ambedkar, the Law Minister, to work for the Hindu Code Bill whereby the diverse Hindu communities can be brought under the same umbrella. The idea was that since the Hindus are the largest religious community, if the reform process can be initiated among them, the same process can be extended to other communities. Ambedkar formulated the Bill with the under-standing that the prevalent laws don’t give equal justice to women. The draft Bill, as it emerged, was opposed by a large section of the Hindu community as it was too radical for the prevalent patriarchal norms. Later the Bill was diluted and implemented. The failure to carry through the Bill was a setback to the efforts of Ambedkar; he felt dejected and left the Union Cabinet.
The debate further came to the fore in the wake of the Shah Bano judgment. Here, Shah Bano’s plea for maintenance after divorce was upheld by the Court. The conservative section of the Muslim society stood up to oppose this judgment. Buckling under their pressure the Rajiv Gandhi Government passed a Muslim Women (Protection of Rights on Divorce) Bill, which bypassed the judgment. With this the Hindu communal forces took up the issue and called for a UCC. The main point which was propagated was that the Muslims are allowed to marry four times. The unstated understanding behind this was that due to polygamy the population of Muslims will overtake that of Hindus. In real sense neither is the percentage of polygamy more among Muslims nor does polygamy lead to more children as the number of children is restricted by the number of women.
A section of the Muslims, Muslim leadership and organisations like the Muslim Personal Law Board made it an issue of minority identity and strongly stood against any demand for a UCC. Practices like polygamy, burqa, triple talaq became the marker of the Muslim community. From within the Muslim community many a women’s group came up and started campaigning for gender justice and abolition of these practices. As such the focus of reforms came totally on the Muslim community and the need for reforms within the Hindus took a back seat in the popular imagination. While the communal forces talked of uniformity in law, they had neither any scheme of things nor any document in hand around which they could put forth this demand. The dominant notion was that the UCC would be an exercise of picking up some laws from Hindus, some from Muslims and some from Christians to make the picture complete. The central notion of gender justice was missing in this discourse.
At the same time the progressive women’s movement had also demanded the UCC, but having realised that most of the personal laws which are prevalent in the name of religion are unjust to women, they retracted and started talking about a gender-just code through the process of reforms in the community. So how would the UCC come in? Would gender justice be the basis of uniformity? There is a notion that somebody will prepare the laws and these will be brought in, imposed on all the communities. This is ‘top-down’ approach. The other is the ‘bottom-up’ approach. Here the focus is on the reform process being encouraged in the society with the process being taken further and given the shape of law. The crucial point here is the process of reform within the community, a process based on gender justice.
Among others, the efforts of the Bharatiya Muslim Mahila Andolan (BMMA) in this direction are noteworthy. The BMMA has collected 50,000 signatures for abolition of triple talaq. The idea here is to campaign and do the advocacy for such changes, get the laws made on these lines which will strengthen the hands of the judiciary in giving justice to women in particular. It is campaigns like these which raise the consciousness in the society and the possibility of the occurrence of unjust practices goes down. In other words, such campaigns make the ground on which justice delivery becomes better and easier. The campaign for banning triple talaq is an important step in the direction of reforms based on gender justice.
It is true that the communal forces which make a loud noise on the topic have no interest in gender justice. Their central agenda is to frighten the Muslim community. Here the crocodile tears of those posing to give justice to Muslim women are more than obvious. Gripped in the patriarchal mind-set the men-dominated Muslim organi-sations also don’t support such campaigns.
As such one should grant the point that an intimidated community gives secondary importance to the issue of gender justice. Their primary concern is security and partly equity in social affairs. Men are the ones leading the organi-sations promoting communal politics. Also the self-proclaimed Law Boards are gripped by patriarchal mindsets; surely it is the women who are struggling for gender parity and one stands with such equality-based ‘bottom-up’ approach of social change. The opposition to the UCC comes mainly due to the fear of intimidating communal politics and the values of patriarchy which must be overcome.
There is also an argument that the campaigns like abolition of triple talaq will open the door for the Hindutva forces to bring in Hindu laws as the UCC. That’s a tricky argument and does draw our attention to the dangers in demanding reform of the laws. Still one hopes that in the current scenario to bring back the Hindu laws as the UCC is unlikely as most of the women’s groups have realised that the existing Hindu laws are nowhere close to giving justice to Hindu women; so it is unlikely that such an imposition can be placed in today’s context. It is time that reforms in the community and gender justice become the basis of our thinking in this direction.
The author, a retired Professor at the IIT-Bombay, is currently associated with the Centre for the Study of Secularism and Society, Mumbai.