By Faizan Mustafa
November 11, 2016 4:51 am
“The best way to reform Mohammedan law is not to reform it at all. Let its inconvenient and archaic features wither away. Once it is accepted that this is the policy, it will wither away fast enough. If there is a frontal attack on personal law, it will survive with a tenacity it has been unable to show in countries where the majority of the population are and always have been Muslims,” said eminent jurist Duncan M. Derrit. This author is for uniform civil code in a piecemeal manner.
The article by RSS ideologue M.G. Vaidya (‘The price of personal law’, IE, November 1) has done a great disservice to the Uniform Civil Code (UCC) debate as he has explicitly said that Muslims and Adivasis should lose their right to vote in Parliament and state assembly elections if they refuse to accept the UCC. So the cat is finally out of the bag.
But then, hold your breath. Ravishankar Shukla, the premier of the central provinces and the first Congress chief minister of Madhya Pradesh, in a two-part article carried by Kalyan in July and August 1947 had argued that “Hindustan should become a Hindu Rashtra and its state religion should be Hinduism. Hindus or non-Muslims should hold the top posts. Any person who does not believe in Hindu culture should not be made a part of the government of Hindustan.” Shukla, a member of the Constituent Assembly, went on to say that Muslims should not be given citizenship rights. Thus, Vaidya alone should not be criticised.
Let us recall the history of the Hindu right’s opposition to the Hindu Code Bill. The RSS, Hindu Mahasabha, Dharma Mahamandal, Akhil Bharatiya Dharma Sangh and several other organisations fiercely opposed the Hindu code Bill. The most vociferous critics of reforms in Hindu law in the 1940s and 1950s are now arguing for the UCC. The RSS itself was leading the opposition. As many as 79 public meetings were organised in 1949 by the RSS in Delhi to oppose the Hindu Code Bill which was termed as an atom bomb on Hindus.
It is true that Shyama Prasad Mukherjee said in Parliament that instead of the Hindu Code Bill, the government should bring in the UCC. There was much substance in this argument and Nehru indeed did a disservice to Muslim women by not bringing reforms for all communities in one go. Hindu law reform proposals received a lot of opposition not only from the extreme right but also from Congress leaders such as Vallabhbhai Patel, deputy prime minister, Pattabhi Sitaramayya, Congress president, Ananthasayanam Ayyangar, speaker of the constituent assembly. Madan Mohan Malviya and Kailash Nath Katju also opposed the reforms. When the debate on the Hindu Code Bill took place in 1949, as many as 23 out of 28 speakers who participated in the debate opposed it. On September 15, 1951, Rajendra Prasad threatened to use his powers of returning the bill to Parliament or vetoing it. Nehru had to concede and the bill could not be passed.
In 1949 itself, the Hindu right had formed an All-India Anti Hindu Code Bill Committee under the leadership of Swami Karpatri Maharaj who made even Ambedkar’s “low” caste an issue. Karpatri justified unregulated polygamy and freely quoted Yajnavalkya:
“If the wife is a habitual drunkard, a confirmed invalid, a cunning, a barren or a spendthrift woman, if she is bitter-tongued, if she has got only daughters and no son, if she hates her husband, (then) the husband can marry a second wife even while the first is living.” Geeta Press’s Kalyan magazine published a number of articles which favoured polygamy, opposed the daughter’s right to inheritance and questioned the Constituent Assembly’s right to legislate on religious matters.
If we are interested in reforms, just like the Hindu Law Reforms Committee formed in 1941, the Modi government should constitute a Muslim Law Reforms Committee, a Tribal and Indigenous Law Reform Committee and Christian and Parsi Law Reforms Committees, and based on their recommendations, take the UCC process forward. We would then need a Hindu Law Committee as well, as some of the existing provisions such as solemnisation of marriage, Kanyadan, joint family, preference of issueless husband’s parents in the self-acquired property of the daughter-in- law etc. may not find a place in the UCC and provisions like dower or Nikahnama (prenuptial contract) are to be incorporated. Is the RSS of 2016 ready for these changes?
Faizan Mustafa is vice-chancellor NALSAR University of Law, Hyderabad