By Partha S Ghosh
Sep 13, 2017
India's longest surviving joke is its commitment to a Uniform Civil Code (UCC). The only person who did not get the joke was BR Ambedkar, law minister in Nehru's first cabinet. As a result, he had no option but to resign. In utter disgust he said: "I have never seen a case of a chief whip so disloyal to the Prime Minister and the Prime Minister so loyal to a disloyal whip." That Nehru understood politics better is a longer story. In South Asia, only two UCC drafts have been prepared thus far, the first for India by Ambedkar in 1951, and the second for Bangladesh by Bangladesh Mahila Parishad in 1989. India's democratic pluralism killed the first; Bangladesh's Islamism killed the second. In Indian politics, however, the controversy has not only survived, it has thrived in vivid and raucous fashion. During elections, Hindu chauvinistic parties find it handy to whip up their voters. But as soon as the election is over, the UCC is consigned to the freezer, only to be brought out again at the next hustings. As India is in continuous election mode, thanks to one state election after another, the issue has acquired a life-after death stature.
Personal law is not person al at all; arguably, it is not even law. It bestows rights to a community but its members can exercise that right only individually. It is inherent in India's circumstances that it pits the Hindu majority against the Muslim minority. Few care to recognize that the crux of the matter is gender inequality across the board. Instead, the conflict features two sets of men, each of whom claims to speak for women but uses that as a pretext for inter-community fear-mongering and contestations. From the days of the nationalist movement, this controversy has unfolded in multifaceted ways. Sometimes it is Islam in danger, at others it is Hinduism in danger, but, barring the occasional intervention of women's rights groups, it is never: `women in danger'. It is a man's world. Unless this reality is challenged and altered, all talks about the UCC is simply superficial, high-voltage TV debate.
The UCC is no doubt a normative formulation. But law is a political apparatus, and so too is personal law. Any UCC, therefore, has to be politically negotiated through inter-community cooperation. As long as one community believes it occupies a higher pedestal, this will remain unachievable. The passage of the Dissolution of Muslim Marriages Act, 1939 and the Hindu Code of 1955-56 underlined the compulsion of reconciling progressive sentiments with conservative misgivings. Though limited in their achievement, each was a step to BYINV wards addressing critical women's issues. As Laozi famously said, a journey of a thousand miles begins with a single step.
Another step was made during the Shah Bano case in the 1980s, retellings of which typically, and wrongly, portray Rajiv Gandhi a villain for overturning the Supreme Court judgment. But as I have argued elsewhere, the 1986 Act not only provided a better deal for divorced Muslim women than existed previously, as borne out by empirical research in UP, it marked the only second instance (after the Hindu Code) of Parliament asserting its authority in matters of personal law. It is surprising that despite the support of numerous Supreme Court and High Court judgments the past seven decades have witnessed only two such landmark events. The Indian political class has failed miserably in this regard. They have taken shelter under the shadow of a court-sponsored `uniformisation' process. While the majority community has a greater role to play in introducing a UCC, the Muslim minority must also extend its support. Many of the premises of the All India Muslim Personal Law Board (AIMPLB) are simply outdated, a fact which Muslim women have underlined time and again. If more progressive suggestions emanate from within the Muslim community, it is bound to embarrass Hindu conservatives who remain loath to rethink their own Code's numerous unjust gender provisions. The real ITE battle, therefore, is between liberals and conservatives, between male chauvinists and women's rights champions. One solution could be to look into the Universal Declaration of Human Rights (1948) and allow it to serve as the model.
But as I always say: it is politics, stupid. In its present mould, Indian politics is least conducive to bring in a uniform code, for it requires the dissection of the Hindu Code as well. It is the myopia of Muslim politicians that they do not realize how simple it is to turn the UCC debate on its head: let the Hindutva champions respond. Finding themselves on the spot, the latter may then, ironically, become greater champions of Muslim personal law. If the BJP is truly serious about a UCC, it must do more than the now routine manifesto pronouncements and begin instead to narrow the gap between its pious promises to the Muslims on the one hand, and its venomous statements about them on the other. UP Chief Minister Yogi Adityanath says that if Muslims can occupy streets for namaz why then should not police stations celebrate Janmashtami. Such statements may prolong BJP rule but they may also render any possible Uniform Civil Code an even more distant blip on India's political horizon.
(The writer is senior fellow, Institute of Social Sciences, New Delhi, and author of `The Politics of Personal Law in South Asia')
Source: Times of India