By Madhu Purnima Kishwar
Sep 16, 2017
One is based on custom and community, the other on sacred texts. Can a Uniform Civil Code work for all?
A common response to the unjust provisions of Muslim personal law in India is: `Hindu law is more discriminatory. Why target Muslims?' This attempt to force an equivalence between Hindu and Muslim practices and prescriptions is absurd. This is not to suggest that harmful social practices do not exist among Hindus, but to point out that Hindus do not block reform in the name of a god or sacred text, though they may resist it citing other reasons.
The prescriptions of Islam and Hindu moral codes belong to irreconcilable world views. Muslim personal law or Sharia derives from the religious precepts of Islam, the Quran and the Hadith. Both Quran and Sharia claim divine sanction, and unconditional obedience to the Quran's commandments are a prerequisite for being considered a Muslim.
Hindus do not have a commandment-giving sacred text like the Quran or Bible. Nor do Hindus have a single body of canonical law or a Pope whose writ reigns supreme. Neither the Vedas nor Dharmashastras or the two sacred epics, the Rama Yana and the Mahabharata, lay down a fixed code of conduct. Daily life is to be lived by Dharmic codes specific to different life situations, roles and relationships.
When a Hindu individual or a group seeks to defend a particular practice, the common statement is, "Hamari Biradari Mein To Yeh Hi Chalta Hai" (This is how we do things in our community), rather than quotations from any sacred texts. Every Jati or community has been free to regulate its own internal affairs through Biradari Panchayats, without seeking permission or validation from any higher authority.
Social reform measures can be initiated with relative ease among Hindus because there is no centralised authority that has the right to obstruct it. This tradition of self governance and adaptation is what accounts for the vast diversity of cultural practices within the subcontinent.
In many places, this tradition encompassed the Muslim community as well. Kerala Muslims used to share many practices with Hindus, dress and food habits as well as the matrilineal family system in some parts. Malayali Muslim women never observed Purdah until as late as 1980s, though that has changed now. Similarly, Hindu and Muslim Jats of pre-Partition Punjab shared a lot -language, food, dress code, family structure and inheritance practices.
Sadly, in recent decades, Islamists have been forcing Muslims to build walls of separation from other faith groups. Ever since petrodollar Islam has come to dominate the global scene, ordinary followers of Islam cannot take such liberties. Self appointed guardians of Muslim personal law in India have begun to take rigid positions regarding what they claim are Quran and Sharia sanctioned practices.
Ironically, they were led in this direction by the government of Jawaharlal Nehru, which assured Muslim politicians that the practices for which they claim "Islamic" sanction -no matter how unjust -stand above the promise of fundamental rights, including the right to equality . However, Nehru's government did not hesitate to road-roller out of existence the vast diversity among Hindu groups with the poorly-crafted Hindu code bills in the 1950s, followed by several amendments by successive Congress governments. And while these governments at least had a clear, if somewhat misguided agenda, the current BJP government seems to have no clear vision regarding gender just laws. All they know is that they want to banish Muslim personal law and introduce a Uniform Civil Code -never mind if it is uniformly bad for all.
Muslims leaders need not panic on account of the UCC, though. They should draw courage from the fact that Hindus continued to live by customary practices in several areas, even while they accepted the jurisdiction of government-enacted laws when their customary systems fail to resolve disputes. For instance, Hindu marriage law does not prohibit inter-caste or intra-Gotra marriage. But most Hindus, especially among the poorer strata, cling to marrying within their Jati and avoid marrying in the same Gotra because that is considered equivalent to in cest.
If Hindus don't expect the state to enforce their culture-specific customs and traditions, why should Muslims insist that judges of secular courts in India act like Qazis and deliver judgments based on the Sharia? Muslims who are happy with their religious law can continue with their existing practices even if a Uniform Civil Code is enacted, because it will apply only to those who are dissatisfied with their community's law or practices.
But UCC zealots among Hindus better realize that the Uniform Civil Code mandates junking of the Hindu Civil Code and all laws that carry the Hindu tag. No group will be allowed to approach the court to demand adjudication of family disputes on the basis of religious or customary law of any faith group - whether Hindu, Christian or Muslim. Those who hold their customary practices as sacrosanct will have to go to the chosen leaders of that community - be they caste Panchayats, gurus, Maulvis, priests or Gurudwara heads. The courts will only adjudicate on the basis of Indian Marriage and Divorce Act, Indian Succession and Guardianship acts.