By S. Arshad, New Age Islam
23 May 2022
The Uniform Civil Code Has Been a Contentious Issue since The Independence
1. Intellectuals say Uniform Civil Code cannot be implemented.
2. The Law Commission of India said the UCC was not feasible.
3. Legal experts say the UCC will be opposed by Hindu groups and tribal.
4. Muslims fear that the UCC will be a threat to their religious identity.
Recently a TV channel of India held a debate on the Uniform Civil Code as the central and state governments have upped the ante on the issue though the government of India has not been able to come up with a draft of its proposed civil code. In 2018, the Law Commission of India had in its 185 page findings had concluded that the implementation of a Uniform Civil Code was neither desirable nor feasible at the moment. The participants of the debate, former Justice Deepak Gupta (Supreme Court), advocate Colin Gonsalves, activist Faizur Rehman, Advocate Aryama Sundaram, legal expert Aloke Prasanna and women's rights activist and co-founder of Bharatiya Muslim Mahila Andolan, had different views on the issue and presented arguments in favour of their position. Justice Deepak Gupta had earlier expressed his wonderment on why the Uniform Civil Code had not been implemented yet though it had been included in the Article 44 of the Directive Principles of the Constitution. He said that though ideally the Uniform Civil Code should be implemented, but he was of the view that the country was not ready for it right now. Before implementing it there was a need to start a serious debate on it. He clarified that when we talked of a Uniform Civil Code, it should not be a Hindu code for other religions. Instead, it should be the best of all religions and best of all secular ideas. That was the idea of a Uniform Civil Code. Looking back at history, Justice Gupta observed that the debate on the UCC had started when it was included in the Directive Principles and the debate should have been concluded when the Hindu Laws were codified in 1950s. It was an opportunity that was lost because we did not bring in other religions. It was thought, and rightly so, that the demand should come from their religious leaders themselves. He however, felt that the time for UCC had not come because there were a lot of divisive forces active in the country. He felt that a debate on what would form a UCC should be held on a large scale.
Justice Gupta said that when we talk of a UCC we have to talk of many other things. For example, if there is a UCC, how can we have reservations only for the Scheduled Castes who are Hindus? If we have a UCC, can tax exemptions be given to a joint Hindu family? If we have a UCC, can the people of the North East and other tribal belt be given the benefits they are given now? He also said that a lot of Hindu groups will have problems with the Uniform Civil Code if a real Uniform Civil Code is developed because there are many groups that protect their customs. India is a land of diversity. When you are going to draft a UCC you willl have to keep many minute details in mind. When Justice Chauhan was the Chairman of the Law Commission, he had said that the UCC was neither desirable nor feasible at that stage. However, Justice Gupta said that, if not today, tomorrow or five years hence, we need to have a UCC.
Mr Aryama Sundaram had a different view on the issue. He said that the UCC was not only desirable but also feasible. He said that our founding fathers had looked towards a uniformity which was the basis of secularism. And so, he believed that the Uniform Civil Code was necessary. He said that secularism did not rest at appreciating one's right to practice his religion. It went further. It was in so far as the interaction in the society was concerned, secularism was to show no difference between the people of different religions. When we talk of a UCC, we do not talk of interfering with the religious tenets but only with religious customs which don't have religious origin. It’s the uniformity of the civil code which is necessary. Coming to the second question that it is feasible or not, no time but ever be considered the right time. There has not been a change in history which has not faced resistance.
Advocate Colin Gonsalves said that the Uniform Civil Code was desirable and feasible. But he observed that the BJP did not have the slightest intention of implementing it. It has been using the UCC for political propaganda against the Muslims. He said that when Nehru faced the issue of the UCC, he had quite a raging argument by Ambedkar. The latter wanted a Uniform Civil Code but Nehru broke it up in four codes: The Hindu Adoption Act, the Hindu Marriage Act, the Hindu Inheritance and Succession Act and the Hindu Guardianship Act. These acts were perfectly in place and compatible with the Article 14 of the Constitution. There is no discrimination between men and women. But there is all the confusion in the Marriage Law. But the Goa Code was as close as a civil code that we can get. But can the BJP dare to go close to a system like that?
He said the Indian Succession Act 1925 was a secular Act. You can change that act a little bit and you will get a perfect Indian Succession Act. Finally on agricultural rights, 2005, the Hindu Succession Amendment Act did away with the discrimination against women in agricultural land but for Muslims it continues. So, Muslim women were completely excluded from the rights in agricultural land. So he observes that the work on UCC was already half done. In the case of fundamental rights, the work was fully done; All Succession Act was already fully done. On agricultural land, the work is half done. It was done 50 per cent for Hindus but not for Muslims. The problem was not legal or constitutional but political. They (BJP) see it as a tool of political propaganda against Muslims. This can be done in a second if they want to do it.
Activist Faizur Rahman was of the view that the implementation of the UCC was not possible even in fifty years. He said that he agreed with the Law Commission that has said in its 185 page consultation paper in 2018 that it was neither feasible nor desirable. When in 2018 it was not desirable and feasible, then in the last four years, the situation has not got better in 2022. He said that implementing the UCC will further polarise the society. The argument he presented in favour of his position was that the central government had submitted an affidavit to the Supreme Court in January in which it said that there were four major issues to deal with the UCC-- Marriage, divorce, inheritance and the custody of children but the basic problem here is marriage and divorce. You should look at the Muslim Law. It is a simple pre-nuptial agreement for marriage which can be incorporated. For instance nobody would have any problem with the Muslim Nikahnama. It can be included in the common code. Like Justice Gupta said that we can take the best elements from all religions and make it a part of the UCC but the other religions will not accept it because it is from the Muslim side. For divorce the Quran prescribes a seven step procedure which he said he articulated in his articles. The instant Talaq was not a part of Islam, he said. When he made a presentation of the Quranic procedure of Talaq before a group of legal experts, they said they did not have any objection if it was made a part of the UCC but the problem will be for other religious communities. Faizur Rahman further said that within the Hindu code, for instance, the rites and ceremonies should be in accordance with the religious customs of one of the parties. If a Jain and a Buddhist are marrying, according to the Hindu rites, it has to be done either in accordance with the Jain or Buddhist rites. They cannot perform it under the Sikh rites although the Sikhs also come under Hinduism according to the Constitution. So he observes that there is a problem. So he wonders if there is a way we can cull out the good aspects of various religions and make it acceptable to all. It's impossible. Moreover, he ays, uniformity is not necessary for unity. Unity and uniformity are different things. What we should be aiming at in India is unity in diversity which has been our cherished goal.
Zakia Soman who has been very vocal against triple Talaq and is the co-founder of Bharatiya Muslim Mahila Andolan said that our cherished goal has been gender equality and gender justice for all Indian women irrespective of whether they are Hindu, Muslim, Christian or Sikh. And this was the thinking originally when this was led by Nehru Ji and Ambedkar ji and the fear was that thanks to the power religion and religiosity wielded in our country, women would be denied their rights and so it found its way into the Directive Principles. But after that other laws were codified. Hind laws were codified, Christian laws were amended. The Muslim community was left out of the ambit of law reforms. So the Muslim Personal Law which is used in India today is based on the Shariah Application Act 1937 which does injustice to Muslim women in all matters including consent in age of marriage, divorce, polygamy, custody, sharing of property, guardianship of children etc. even as Quran fairly grants them these rights. However, she said that today the UCC is a hugely politicised issue. And if we look at history and go through some of the debates of the Constituent Assembly, it was hugely opposed by the right wing of Hindus saying that it was an onslaught on their culture. Therefore, she said that the UCC was not feasible right now. She said she agreed with the findings of the Law Commission headed by Justice Chauhan. She said the reason the UCC was not feasible was that there was a communal polarisation and hate, calls for genocide and the silence of those in authority. So whn the chief ministers are talking about the UCC, they don't have a clue about what the UCC is. For them it's just a matter of a point which is included in their manifesto.
Aloke Prasanna who has done an extensive research on the subject of Uniform Civil Code, categorically said that the Uniform Civil Code was being presented as mandatory whereas the Constitution had made it optional. He said that at that time there was no Special Marriage Act. The Hindu Code had not been enacted. Various changes in the family laws had not been made. When the Special Marriage Act was enacted in 1954, it was actually a step towards an actual uniform civil code without it being made mandatory. He said that everyone in the discussion was talking about a mandatory civil code though there was no constitutional basis for that. There has simply nowhere in the Constitution been said that the UCC is exactly one code and nobody has got anything else. He presents the example of the 5th schedule which applies to the tribal areas. There the governor has the power to exclude the application of the current Hindu Succession Act and a large part of Hindu laws do not appy to the tribal community. Secondly Aloke Prasanna said that the Article 371(a) and 371 (g) of the Constitution exclude the application of laws made by the Parliament with respect to family laws in Nagaland and Mizoram. He says that the family laws are actually in List 3 which is Concurrent List. If the genuine intent was to have one family law for the entire country, why was it put in the concurrent list where both the centre and the state can make laws in this respect?
Mr Aloke Prasanna also pointed out the difference in approach of different religions to marriage. In Hinduism and Christianity, the marriage was a sacrament as it was made in heavens and it is broken only in exceptional circumstances. Under their laws, a man and a woman intend to live together forever. But under the Islamic law, marriage is a social contract. It is essentially a contract where the parties agree on certain terms. The marriage can be dissolved as is done in a contract. He asks if under the UCC, Christians and Hindus will be told to convert their marriage into a contract and the Muslims to consider marriage a sacrament which cannot be broken. He said that you cannot make a Khichdi and call it a uniform civil code. If there is no understanding of the fundamental concept of family law, you can’t simply say, 'Just let's take the best of here and let's take the best of there and make one uniform civil code.'
Mr Prasanna also said that everyone was giving example of the Goa civil code. But one thing should be kept in mind that Goa is a state of only one million people. So anything that succeeds with one million people does not guarantee its success with a much bigger population. His point was that India was a country of 140 crores people with heterogeneous society while Goa was a small homogenous region. Therefore, the argument that since a uniform civil code has worked in Goa it will work in entire India does not hold water. He also pointed out the fact that the western countries which we hold as examples are recognising the personal laws of different religious groups like Hindus and Muslims. The courts across Europe have applied the Hindu Law and Shariah Law.
Therefore, mostly the participants were of the view that insisting on the implementation of a uniform civil code will create problems rather than solving them. They were of the view that when the western world which we consider a model in many matters is more and more appreciating diversity of culture and recognising religious laws of different communities, India should not insist on suppressing cultural and religious rights of its people in the name of bringing uniformity in society. Such an attempt has not succeeded in the past even made with all sincerity. Mughal emperor Akbar had tried to bring a similar code for the Indians named Deen-e-Ilahi to bring uniformity in the diverse Indian society. Only two or three courtiers adopted it because Indians protect their religious and cultural identity at any cost. That was the reason it was the right wing Hindu groups who had opposed the Uniform Civil Code in the beginning. Today the Indian government and some states talk of implementing the UCC though the draft of the proposed UCC is not ready. Advocate Colin Gonsalves therefore rightly asks, 'Where is your draft?'
Even if the Uniform Civil Code is prepared and implemented, it will be a Khichdi or a modem Deen-e-Ilahi which will find no takers.
S. Arshad is a columnist with NewAgeIslam.com.
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