Print edition : November 11, 2016

A signature campaign, "Quit Uniform Civil Code", organised by activists of the Muslim Coordination Committee in Thiruvananthapuram on August 8. Photo: S. Gopakumar

The impression that a uniform civil code will essentially be a Hindu code and not an amalgamation of the fundamentals of all faiths gains ground, fuelling fears of further division in the pluralistic society.

ANY mention of a uniform civil code has Muslim clerics seething. Recently, when the Law Commission issued a questionnaire asking all citizens to give their views on the subject, Muslim leaders decided to boycott it, terming it as a diversionary tactic to take attention away from the multiple failures of the Narendra Modi government. “They cannot safeguard our frontiers and they open new battle frontiers within the country,” said Wali Rahmani of the All India Muslim Personal Law Board (AIMPLB). He added: “The questionnaire is one-sided. Through the 16 questions asked, one can make out it is an exercise in deception. The Commission is not acting as an independent body but rather as a part of the government. Muslims will not respond to such questions. The government is so fond of talking of its proximity to the United States but each State has its own law there. A uniform civil code is not suitable for our nation. It is a nation of Ganga-Jamuni tehzeeb [pluralistic culture]; people have their own distinct traditions, rules and rituals. We live here under the Constitution, which gives us freedom of religion, to practise and propagate our faith. The Constitution states at the very beginning: ‘We, the people’. So, the thought process or ideology of one particular community cannot be the overriding factor.”

Not everybody agrees with him. The social activist Sajid Momin, who burst into the limelight when she took on the formidable Imam Bukhari of Delhi’s historic Jama Masjid in the late 1970s, said: “We have been fighting for the cause of women for almost half a century. On some pretext or the other, the maulanas want to keep the women away. At that time, there was opposition when I asked for poor girls to be educated in local mosques in the evening, today there is opposition to their voice against triple talaq. Maulanas want to deflect any talk of triple talaq by raising the bogey of a uniform civil code. The reality is that the code has not been formed yet. So, to say that it will be a Hindu code in the name of a uniform civil code is not correct. But we will fight for our rights protected by religion.”

The point is reiterated aggressively by Sukriti, a noted lawyer working in the field of public health and gender justice. “The AIMPLB is not a constitutional body. Nor is it representative of the entire Muslim community. It is a regressive body, even dangerous. It wants to control the lives of Muslim women. The AIMPLB quotes the case of the U.S. We would like to focus on our Constitution which grants gender justice.”

Incidentally, even as several clerics rant against the reference to triple talaq and a uniform civil code, very little attempt is made to educate Muslim women about khula, their right to divorce. “The clerics would not want the women to know their rights. It has been historically proven. They will use every ruse to keep the women backward. So, talk of a uniform civil code planned by the Bharatiya Janata Party [BJP]-led government will unite the community behind these so-called leaders,” Sajid Momin said. That brings us to the insecurities suffered by the minorities in a multicultural society, more so with the recent surge in attacks on members of the community. Does not the talk of a uniform civil code fuel their fears further?

“We are living in a difficult environment these days; we definitely understand that. However, that cannot be an excuse to deny gender justice to women,” Sukriti said.

The noted academic and activist Vibha Singh said: “There is an impression that the uniform civil code is the Hindu Code, not an amalgamation of the fundamentals of all faiths. It has that way become a proxy conflict between the majority community and the minority community.”

Incidentally, it is not entirely correct to state that the uniform civil code is all about a proxy conflict with Muslim personal law which, Muslim clerics argue, cannot be interpreted by courts. There are special concessions, special provisions, in almost every part of the country, from Nagaland to Goa, Kashmir to Puducherry. Even the Hindu Marriage Act is not implemented everywhere. For instance, in Goa, the State’s Family Law, a legacy of the Portuguese, continues. It recognises the second marriage of a “Gentile Hindu” man of Goa if his previous wife does not have any children before the age of 25, or if she does not have a male child by the age of 30.

Asaduddin Owaisi of the Majlis Ittehadul Muslimeen said: “The government should focus on bringing changes to the Goa civil code and ban second marriage there.” The BJP-ruled State holds up the Goan civil code even as it advocates a uniform civil code in the country.

According to Prof. Faizan Mustafa, vice chancellor of Nalsar University, a Hindu in Goa does not marry under the Hindu Marriage Act. Same is the case in Puducherry. Similarly, Muslim laws in Kashmir and Uttar Pradesh differ from each other. Christians have their Christian Act. Parsis have the Parsi Act.”

Then there is the peculiar case of Nagaland where the government has given concessions taking the local tradition into consideration. Rahmani said: “An agreement was signed by Pandit Jawaharlal Nehru with Nagaland just like two countries sign an agreement. Nehru put the country’s unity ahead of everything. Today, a Naga court’s decision cannot be changed by the Supreme Court. Nor can Parliament legislate against the decision. This decision to give such a concession to Nagas, who were only three and a half lakhs in number at that time, shows that our founding fathers understood that if they fiddled with their traditions, it would be to the detriment of the country. Similarly, special provisions are there for tribal people through our Constitution.” Suggesting that it is the Muslim community that is being singled out, he said: “In our Constitution there are provisions that clash with customary laws. For instance, khap panchayat. It is a tightrope. Having said that, we must understand that law cannot be static. It evolves.”

In the din made by Muslim leaders, the fact that almost all minority communities have their own laws is often forgotten. Prof. Mustafa said: “Hindus themselves may not accept the uniform civil code once they come to know of its contents.”

Yet the idea of a uniform civil code is seen only through the prism of Muslims. Indeed there are fears that the proposed code may just be the Hindu civil code with smart dressing. Echoing Sajid Momin’s words, the noted legal expert, Prof. Tahir Mahmood, said: “The government has not indicated that it is going to usher in the Hindu Civil Code. Let it indicate, we will give a fitting reply.”

Prof. Mahmood claimed that it was not the duty of the government to introduce a uniform civil code. “Hardly anybody has read Article 44 of the Constitution. It does not say that Parliament will enact a law. Read the language carefully. It says, ‘The state shall endeavour to secure a uniform civil code throughout the territory of India.’ It is not a directive to the legislature but all the three organs, judiciary and executive included, are supposed to endeavour. Of course, reforms will be made from time to time to personal laws, reading all the provisions of the Constitution.”

He said: “Article 44 [Directive Principles] is not justiciable but a fundamental principle which the state needs to keep in mind in governing the country.” In other words, if the state does not follow Article 44, a citizen cannot go to court.

Long before the latest round of talks around a uniform civil code gathered momentum, Prof. Mahmood wrote Uniform Civil Code: Fictions and Facts. In this book, published in 1995, he quoted the famous Jorden Diengdeh case: “The Parsi marriage law till this date contains provisions for special Parsi matrimonial courts—Parsi Marriage and Divorce Act, Sections 18-29; and the Parsi succession law is still close to the Islamic law in providing for daughters half of the sons’ shares in their father’s property—Indian Succession Act, Section 51. The amendments of 1988-89, notably have introduced no change in these special features of the Parsi personal law. Social reformers, however, have never frowned on these provisions of the Parsi personal law.” The Christians, on the other hand, are not governed by a uniform law. “Having a dominant majority in Mizoram, Nagaland and Meghalaya, a sizable percentage of population in Goa, Kerala and Manipur ….the community has various kinds of religious laws and customs in force along with the central and regional statutory laws.” Yet there is no voice saying that local Christian customs are an impediment to a uniform civil code.

Incidentally, for all the political talk of the need to take steps towards a uniform civil code and open declarations in party manifestoes, the Centre and State governments have taken steps to the contrary. Personal laws, including the family law contents, have been placed in List III or the Concurrent List of the Constitution. Prof. Mahmood said: “Regional diversity in family has thus been legally sanctified, and the scope for countrywide uniformity—as enshrined in the judicially unenforceable Article 44—is restricted and curtailed by the Constitution itself. Accordingly, Parliament and State legislatures both can make laws, and have made mutually contradictory laws. The Hindu Succession Act, 1956, enacted by Parliament, has been, for example, drastically amended by the State legislature in Kerala through the Hindu Joint Family Abolition Act, 1975. Parliamentary legislation on family law matters is, moreover, often supplemented with additional provisions by State legislatures—e.g. State amendments of the Hindu Marriage Act, 1955, in Uttar Pradesh and Tamil Nadu.” Then there are instances of States having their own sets of laws. If Jammu and Kashmir has its own family laws, both statutory and non-statutory, Puducherry, which became part of India in 1954, gave its residents a choice of continuing to be governed by the old French Civil Code or their own religion-specific laws. Those who opted for the former are known as Renoncants and are not governed by the general Hindu, Muslim or Christian laws. In Nagaland, the Naga customary law and procedures and religious practices of Nagas were specifically protected by a special provision incorporated in the Constitution in 1962 through the 13th Amendment. A similar rule was applied to the customs and social practices of Mizoram.

Sukriti said: “There are discrepancies everywhere. They have to be taken care of. But we cannot muzzle the voice of Muslim women. What they are asking for is gender justice, not a favour but a right. It is protected by the Constitution through Article 14 as also the Quran. The Quran does not mention triple talaq, yet these women are victims of that.” A uniform civil code, according to her, may just be a panacea for many maladies.

Exception to law

But if there are so many exceptions to the law, why does any talk of a uniform civil code devolve down to Muslims in general and Muslim women in particular? Vibha Singh has the answer: “It gets connected to political numbers. After the majority community, Muslims make up the largest numbers. And if the minority community is always opposed to the majority community, not just now but even historically, these things become unavoidable. When a cake has to be shared, whosoever is the closest to the cake becomes the first challenger. It is the same with the uniform civil code issue with respect to Muslims.”

Prof. Mahmood said: “Hindus keep silent whenever talk of a uniform civil code gains ground. Unnecessarily, Muslims make a hue and cry and get blamed as being an impediment to the code. The fact is that such a code is not even desired. If it were so, why could not the Special Marriage Act, 1954, be used in 1955 when Parliament came up with another Act for Hindu marriages?” The point is buttressed by Prof. Mustafa, who said: “The Special Marriage Act was an optional uniform civil code.” It was an option not exercised by most Indians, including Hindus.