Will the Uniform Civil Code Be the Modern Deen-e-Ilahi?
By S.
Arshad, New Age Islam
23 May 2022
The
Uniform Civil Code Has Been a Contentious Issue since The Independence
Main
Points:
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.
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Also
Read: Why is the Muslim Personal Law Board Crying Hoarse
Over a Non-Existent Uniform Civil Code?
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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.
URL: https://newageislam.com/islamic-society/uniform-civil-code-deen-ilahi/d/127066
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