Home > 2016 > A Wider, Restrictive Civil Code is Need of the Hour

Mainstream, VOL LIV No 49 New Delhi November 26, 2016

A Wider, Restrictive Civil Code is Need of the Hour

Monday 28 November 2016

by Diptendra Raychaudhuri

There are many ways to philosophise disgrace. Many ways to eulogise rot. The history of the world abounds with such examples. But what happened in India over decades on the question of Uniform Civil Code (UCC) has set new boundaries for people to exploit disgrace and rot.

Since the 1990s, the highest court of the country has issued futile calls to adopt UCC, though not always keeping the totality of the scenario in mind. However, the so-called secular parties, busy making votes, never cared to listen. The Hinduites, on the other hand, used the opportunity to polarise the society targeting the Muslims. And the cacophony stymied the scope of an informed debate. It even made the very concept of UCC, which is largely amorphous, dirty. It was portrayed by one camp as panacea, and by the rival camp as something that violates someone’s right! In reality, the contours of UCC were never defined clearly, and the whole debate hinged on polemics and half-truths. It is now being conceived as a game-changer that would bring in gender justice and liberate half the sky that remained densely clouded for hundreds, perhaps thousands, of years.

In this new millennium, when time is running out, the Supreme Court has again come up to settle some issues related to civil code. For now, it is limited to triple talaaq and polygamy. Again, the Law Commission has put up a questionnaire to seek the opinion on some matters related to UCC. The debate has bounced back to haunt and corner the Muslim fundamentalists, while the fundamentalists and wrong-doers of other communities are watching and enjoying the fun.

It is time for the issue to be reviewed in a much wider perspective. A medieval practice like triple talaaq, or polygamy, has to go, beyond doubt. But at the same time other discriminating customs and traditions of different religions and faiths (like the Jain custom of encouraging the children to fast for days on) will also have to be abolished. However, the matter does not end there. Despite having a plethora of laws for women and child protection, the Indian state has failed, hugely, to prevent dowry, dowry-related torture and deaths (mostly prevalent among Hindus), desertion by the husband (of all religion), or torture of the children by inculcating moribund religious ideas in their immature mind (mostly Jains). Again, polygamy is not restricted only to Muslim or some tribal societies. It is neither automatically a criminal offence, nor rare among the Hindus (otherwise how did we find so many celebrities claiming to be wives of those Hindu men who never divorced their first wives?).

So, apart from what is already known and being debated (like triple talaaq and polygamy in the Muslim society), we need to examine two additional essential points: (i) how to liberate the whole population from social ills by restricting those societies where medieval practices are not illegal (like polygamy for the Muslims and some tribal societies and fasting by children among the Jains), and (ii) how to plug the loopholes or strengthen the law to enforce the banning of what is already banned (like polygamy of the Hindus, desertion by husbands, dowry torture and so on). These points are important because, whether the law exists or not, social practice (and the desire to maintain the status quo, whatever the cost) prevents the law from being respected.

Seen in this light, the idea of UCC has to be evaluated. If not followed up by effective socio-legal-political initiatives, the attempt to redo the codes will be an acrimonious exercise fated to remain, in reality, as hollow as the dowry laws.

 What we need to undertake is a relentless effort to modernise the society that is essentially feudal, male-chauvinistic, ill-informed about progressive ideas. A narrow legalistic view may be that the state can only enact laws, but cannot change the society. We must condemn such an argument. The life of Kamal Ataturk is an example of how a concerted effort can change a backward society.

So, to clear the vitiated atmosphere, instead of UCC we must demand a Restrictive Civil Code (RCC) that will restrict all personal laws and customs—Hindu, Muslim, Sikh, Jain, Christian whatever—from continuing any gender-discriminating practice or abuse of children.

Not Targeted against any Particular Community

RCC, or if we call it CCC, is not targeted against any community. It will not touch such customs or practices that are not discriminating or targeted to spread hatred towards others. From the beginning UCC could have been fashioned on such a concept, if the Constitution-makers had not left it undefined and untargeted. Later, the brazen political game played out by the opposing ‘Hindutva’ and so-called ‘secular’ camp altered it to turn it into a political tool.

The Sangh family’s political outfit, even when it reinvented itself as the BJP as late as in 1980, had three demands that distinguished it from the other parties: the brazenly communal Mathura-Kashi-Ayodhya issue, the debatable demand of scrapping Article 370, and of making a UCC for all Indians. Now, if the party that brazenly mixed religion and politics to polarise the Hindus talk of UCC, common Muslims were bound to see it as a communal agenda of Hindu nationalists. In fact that was what the Jan Sangh and its later reincarnation, the BJP, attempted to be, for they harped on only the point of polygamy in their oral campaign. And the so-called secular parties, in order to woo the Muslims, stepped into the trap laid by the Hinduites. They started opposing the UCC, whereas it should have been their demand had they truly believed in a secular polity. In fact, this unprincipled politics of the secularists helped the BJP to grow, and garner political profit from the UCC demand.

Now, it is time when the civil society should come forward with the demand for a Restrictive Civil Code that is not targeted against one community, but seeks to abolish all maladies of all communities. Hindu, Muslim Jain, Sikh, Christians or other faiths including the tribal ones have an array of customs medieval in character. It is not only that some legal practice of some societies needs to be changed. Let us examine what are some of the major points that should be kept in mind while discussing reforms:

Polygamy:

While a small percentage of the Muslims avail of the medieval law, some tribal societies permit polygamy or polyandry. Hindus not only utilised the Muslim code to satisfy lust for creating a harem of a sort; even otherwise they have the licence to have a second wife using the loopholes of the legal system. A Hindu man cannot be punished for his having a second wife unless the first wife lodges a compliant. This terrible loophole emboldens men to flout the law with impunity, for very few women manage to amass courage to lodge a complaint. Recently, in Falta of Bengal, a Hindu woman forced to live with the second wife of her Hindu husband, killed the man and surrendered before the police (reported in Anandabazar Patrika, October 22, 2016). This is just one of the hundreds or thousands of such illegal second marriages by Hindus that the society too endorses so nonchalantly.

Inheritance:

It is known that Muslim daughters are not treated at par with the sons in case of inheritance. But in the laws for the Hindus, the property can be willed away to bypass stricter arrangement of equal distribution. Different codes often deprive Hindu women too (one example is the customary practice of bequeathing the sons with the property that forces daughters of the family to issue a no-objection to it).

Divorce/ Desertion:

The divorce procedure is in a mess. While the Muslims are the worst abusers, Christians too are not far behind as the compulsory waiting period for them is of two years. Many men, of all religions including the Hindus, simply desert the wife and enjoy life with other women. The existing laws have failed to have any effect on such desertion which is much wider than instant talaaq in the lower rungs of the society. A survey can find out the number of the victims, women and children, of such illegal desertion (I am sure it would run into millions).

Dowry:

Among the Hindus the dowry demand is rampant and it is by no means rare to find this to be the cause of death. The Muslim society, though not free from it, is much better placed. The laws of the country have miserably failed to prevent the demand for dowry and dowry deaths. While making a Restrictive Civil Code one has to think about effective measures to uproot this practice.

Children’s Rights:

The Jain custom of encouraging fasting of children for days and weeks together is a horrible one. While this should be legally prevented, the children must be protected from facing torture in family and schools.

There are many other savage customs rampant in India like dain, killing of girls in the mothers’ womb, and honour killing. These have to be fought through legal and social measures.

What is equally important is to enact pro-active laws in case of everything mentioned above.

Arun Jaitley has rightly said that banning triple talaaq and polygamy is a question of dignity. But he, and the top brass of the BJP, should also acknowledge that dowry, desertion or fast by minors are equally undignified practices that cannot have any place in modern India.

Most of the problems mentioned above (except for desertion) stem from social norms, faith or custom. While a civil code can restrict and abolish such things, stringent measures to enforce what is not permitted should come along with it. Banning polygamy must not pave the way for deserting one’s family to live with another woman.

Civil Laws for the Hindus were forced upon the Hindus

There is no place for moribund practices, starting from the dain killing or sati to polygamy, in a modern society.

But everyone is not agreeing.

The ugliest face of male chauvinism came into the open recently as the Centre opposed triple talaaq in the Supreme Court, thereby challenging the grip of the fundamentalists over a society that is struggling to be modern. For that, as reported in The Indian Express (October 14, 2016), the All India Muslim Personal Law Board ‘slammed the government for “creating discord” between communities, saying a common civil code would be against the very Constitution of India’. The paper quoted Maulana Wali Rehmani, the General Secretary of AIMPLB, saying: “The Constitution of India is the binding agreement that India has with every citizen of the country. Article 25 of the Constitution guarantees religious freedom— it is what keeps the country united. It is wrong, inappropriate of the government to try to govern the entire country with one stick.” And then, the man, as reported in the paper, took an overt anti-government stance to thwart any effort of modernising the society. He is entitled to do so, but it has little relevance to the moot point whether or not gender equality has to be ushered in this country. What was surprising was the man’s effort to hide behind ‘religion’ and abuse the name of a community to obfuscate what he himself said about the Indian Constitution: that it is a ‘binding agreement that India has with every citizen of the country’. The binding agreement is between the citizen and the country, and not with the Hindu gurus, Muslim clerics, or any other priests of the country.

Since then, the Imams of almost every mosque and other fundamentalists have started echoing the same view during Friday prayers. Such resistance needs to be crushed in the same way the Hindu fundamentalist resistance was crushed soon after independence.

Before 1955 (when the Hindu Marriage Act was passed), polygamy was not illegal for Hindus either. In fact, Hindu gurus were overruled when a sort of civil code was enacted for the Hindus and some other communities. One of the sadhus contested an election against Jawaharlal Nehru for his ‘sin’ to bring such a bill that nullified a lot of evils among Hindus perpetrated in the name of religion, and lost miserably. Rammohan Roy fought against sati and succeeded in declaring it punishable by the British in 1829. Ishwar Chandra Vidyasagar succeeded in persuading the British to giving sanctity to widow remarriage in 1856. All these were done at the cost of outrage among the Hindu religious leaders. Even in modern times, when Rup Kanwar was allowed (or rather forced) to commit sati in 1987, or in some other not-so-publicised cases, a large number of people cheered the act. Devotees throng the sati temples built in memory of such victims of societal norm. North-west India is particularly vulnerable to such sporadic outbursts of medieval faith, but the other regions are not free from it. It is the modern mind of the rulers and the populace in general that prevents this sentiment to violate the sanctity of a liberal democracy, and thus prevents a journey towards darkness.

The question is: if the state could come forward in the 1950s to civilise the Hindus, why fifty years later should it shy away from taking a bold initiative to civilise the whole population, including Hindus, Muslims, Jains, tribals and the others? Can it abdicate its responsibility? Is it not bound to do what the makers of the Constitution then called UCC (Article 44)?

No Real Question of Religion here

In 2000, the United Nations Human Rights Committee formally reported what all civilised people agree to, that polygamy violates the International Covenant on Civil and Political Rights (ICCPR), citing concerns that the lack of “equality of treatment with regard to the right to marry” meant that polygyny violates the dignity of women and should be outlawed.

Still, some countries like Saudi Arabia may not change. Some countries like Pakistan may start moving towards darkness. But a liberal democratic society cannot afford to protect moribund, regressive values. Polygamy has been abolished in many Muslim countries. Turkey abolished polygamy ninety years ago, in 1926. Among the Central Asian countries, apart from Kazakhstan, no country has decriminalised polygamy after the break-up of the USSR. It is illegal and punishable in Uzbekistan, Kyrghyzstan, Turkmenistan and other former Soviet Republics (except Kazakhstan) till today, despite the continuous campaign by a section of the clerics and leaders of some of these republics to legalise it. In Iran, taking a second wife is allowed only through permission of the court in exceptional cases. And in India, the Sunni Ahl-e-Hadith sect considers triple talaaq unacceptable.

However, the whole scenario in the country for decades remained biased and volatile thanks to the brazen exploitation of sentiments for votes. The BJP tried to rally the Hindus by playing them against the Muslims, and the so-called secular brand appeased the mollahs and moulanas of the fundamentalist variety. The BJP tried to protect the regressive values of the Hindus, Jains and such communities by promoting the fundamentalist brand of sadhus and gurus and babas. The secularists went to Imams begging for votes. Most astoundingly, it’s the Communists—theoretically non-believers—who sanctified the plea of religious freedom of the minorities, thereby supporting continuation of severe gender inequality. Not surprisingly, the Communist Parties are always run by men and men only (women were a rare species in their highest bodies till the turn of the century). It is reassuring though that finally the CPI-M has now taken a secular stand on triple talaaq. But other secularists are keeping mum.

The relevant question is whether it is religion that comes in the way or opportunism. All the members of the Muslim Personal Law Board should answer whether they and their followers have practised Zakat all through their lives (and furnished income tax documents to prove it). According to Islam, it is one of the five pillars and its importance comes just after prayers. One who has not practised it has already violated Islam, and cannot have any right to defend any custom in the name of Islam. Equally important is the question of taking or giving interest on money. Writings of Islamic scholars offer the argument that according to the Quran (Surah Al Baqarah 2/275), ‘Allah has permitted trade and has forbidden interest’. Anyone arguing in the name of religion must furnish proof of not taking or giving interest in any financial deal or deposition of money.

Similar objections will come from Hindu conservatives and Jains as well. Such arguments are essentially obscurantist in nature and have to be overruled. Customs and directions are always the product of a particular time, and have to be changed with time. Just as modern societies cannot run without interest payment, likewise such societies cannot allow polygamy, instant talaaq,sati and such practices that make women live as second class citizens.

Conclusion

What has come as a great relief is the Supreme Court taking up the matter of triple talaaq and polygamy. It is now time for rational arguments. The polity being vote-oriented, selfish and bereft of vision, judicial ‘overreach’ is essential to bring in much-needed changes. If the legislature fails, laws can be sourced from judicial verdicts.

The Indian society, or the innumerable societies that makes the grand Indian society, needs to be changed through concerted efforts. Narendra Modi, the Prime Minister, has taken a small step by showing courage to opine against triple talaaq before the Court. To prove its secular credentials, the government should come up equally boldly against the awful customs of all societies.

It is well known that human values change with time and thus the society becomes more progressive by guaranteeing freedom to every citizen. In our country, in various dark corners, dignity of women is trampled upon. Once the government can bring about a strong Restrictive Social Code, it will be incumbent upon the society to wage a relentless struggle to make its impact felt on the ground.

Steeped in the morass of opportunism of the worst sort, scandalous politics of all shades, and apathy of the society, India has neglected far too long the important task of realising gender equality and child protection. This time the civil society should not let it pass out of fear of the fundamentalists who have hijacked our polity.

Diptendra Raychaudhuri is a journalist based in Kolkata, and author of the novel A Naxal Story

ISSN : 0542-1462 / RNI No. : 7064/62