 "Uniform Civil Code debate goes beyond the Muslim personal law")
As Shayara Bano, a 38-year-old divorcee, approached the Supreme Court to ban triple talaq, she was perhaps unaware that she would start a parallel debate around the Uniform Civil Code, or UCC, in the country. Touted as a legal reform that would bring equality to women across religions, it was a part of the Bharatiya Janata Party's (BJP) manifesto during the 2014 general elections.
The Law Commission of India's questionnaire, on whether or not the country needs the UCC, though incorrectly linked to Shayara Bano's petition, seems to be influenced by the fervour for a common law. In layman perception, the uniform code is the antidote to the draconian religious practices that deny women and marginalised groups basic fundamental rights. But the debate is much more nuanced and it is only when one is a litigant in a civil case does one realise that it is perhaps impossible to shed one's religious identity.
When Manish Kumar, a non-practising Hindu, wanted to file a property partition suit, he was stumped by the options available to him. "There was the Hindu Succession Act, the non-coparcener clause under it, and the Indian Succession Act," he says. For an occasional temple-goer, it was a rare encounter with religion in the court of law. If Kumar had any sisters and had his family come under the Hindu Undivided Family label, that encounter would have been even more convoluted.
With the Hindu Marriage Act also came the Special Marriage Act of 1954, which many today believe is the option available to people who do not want to follow the laws of a particular religious community. But this again is a common misconception.
"If you are a Hindu man marrying a Hindu woman, you will automatically be governed by the Hindu Marriage Act. The Special Marriage Act only comes into force in case of inter-religion marriages, where both spouses want to retain then own religion," says Sarin.
For Tahir Mahmood, jurist, former member of the Law Commission and distinguished jurist chair, professor of eminence & chairman at the Amity Institute of Advanced Legal Studies, the government closed its doors to various communities and their practices with the introduction of the Special Marriage Act.
"If you look at the list of relatives and community members that one is prohibited from marrying under the Special Marriage Act, it is a carbon copy of the Hindu Marriage Act. For example, you cannot marry your cousin, which is common practice among Muslim families," he says. The government, according to Mahmood, also left little room for the UCC by enacting a separate Hindu Marriage Act. "If it was serious about a common law, why did it create a separate Hindu law then?"
Mahmood believes that the UCC and reforming personal laws are two entirely different courses of action. "Thinking that the uniform code will replace personal laws and there will be one codified civil law as is the case with the Indian Penal Code is an entirely erroneous interpretation of Article 44 of the Constitution," he says. "Article 44 only means that personal laws should be retained and reformed. And those reforms should be, as far as possible, on uniform lines."
While experts caution against confusing the two issues, the codification of personal law invariably takes the undertones of the UCC. Nalin Kohli, national spokesperson of the BJP and a Supreme Court advocate, stresses on the need to distinguish between rights and rituals. "Equality is an inalienable right. Can the rights of a woman, regardless of whether she is a Muslim or a Hindu, be compromised on the basis of religion?" He, too, suggests that the need for a common law be not confused with religious practices and need for reform within communities. And yet, his views often veer into the territory of religion. "Those Muslims who chose to stay in India chose a secular state, not a theological one. The Indian Constitution is a package to be followed in its entirety," he says.
Carefully skirting the government's position on the UCC, Kohli says that the Law Commission is an "advisory body" and it is following a democratic process in opening up the conversation around UCC. "Those who see this as an assault or those who call the prime minister a dictator are those who do not believe in democratic processes. They are the ones politicising the issue and not the BJP," he says.
Where politics is concerned, the All India Muslim Women Personal Law Board (AIMWPLB) is not far behind in taking credit for stirring the debate. "It was this board that questioned Muslim men and the treatment of their wives. We have been tirelessly working for 15 years towards modifying Muslim laws in favour of women," says Shaista Amber, president of the AIMWPLB.
Working closely with civil society groups such as the Bebaak Collective and Bharatiya Muslim Mahila Andolan, the AIMWPLB has rallied for bringing the Muslim personal law not only in agreement with the Constitution, but also The Quran. "Muslims need to listen to Allah and not the maulana. The Muslim Personal Law Board cannot be complacent about these changes." But, Amber adds, the UCC is not the right way forward. "It will serve no purpose, for any religious community. We need a Muslim Marriage Act along the lines of the Hindu Marriage Act. But a common law is not the answer."
Wajahat Habibullah, former chairperson of the National Commission for the Minorities and India's first chief information commissioner, suggests that diversity is not necessarily a weakness. "The offensive practices in all religious communities need to be looked at. But by stirring up the UCC, you are only alienating communities and vitiating the debate," he says. Citing Shah Bano case, where she appealed to the Supreme Court for adequate alimony, he says, "The Supreme Court decided the case based on the tenets of The Quran, which for Muslims is the law."
John Dayal, writer and former president of the All India Catholics Union, is more sceptical about the very intent behind the UCC. "The Special Marriages Act works as a common law of sorts. But it does not allow same-sex marriages," he says. "What will happen to Section 377 [which prohibits homosexuality] under the UCC?"
Similarly, he adds, will the tax benefits given to Hindus under the Hindu Undivided Family mechanism be done away with? "Besides, the Law Commission's questionnaire is juvenile and binary. When you ask Hindus if triple talaq is bad, 85 per cent of the people will say yes. What say does a Hindu woman have in the religious beliefs of a Muslim woman?"
This, for Dayal, is not a scientific survey and only reveals the Law Commission's "patent enthusiasm for the Rashtriya Swayamsevak Sangh and Prime Minister Narendra Modi". "Ideally, there should be a draft of the UCC that should be made open to debate. We asked this of Atal Behari Vajpayee too and we ask this of the current government."
That personal laws need urgent reform is the only point of agreement among all communities. But unlike Ramchandra Guha, historian and political commentator, who supports the implementation of the UCC, many advocate the presence of a common law as a choice. The true meaning of democracy, they say, lies in equity and not a binary vision of equality. Were he alive today, Nehru would certainly be nodding in agreement.
The Law Commission of India's questionnaire, on whether or not the country needs the UCC, though incorrectly linked to Shayara Bano's petition, seems to be influenced by the fervour for a common law. In layman perception, the uniform code is the antidote to the draconian religious practices that deny women and marginalised groups basic fundamental rights. But the debate is much more nuanced and it is only when one is a litigant in a civil case does one realise that it is perhaps impossible to shed one's religious identity.
When Manish Kumar, a non-practising Hindu, wanted to file a property partition suit, he was stumped by the options available to him. "There was the Hindu Succession Act, the non-coparcener clause under it, and the Indian Succession Act," he says. For an occasional temple-goer, it was a rare encounter with religion in the court of law. If Kumar had any sisters and had his family come under the Hindu Undivided Family label, that encounter would have been even more convoluted.
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Under Jawaharlal Nehru and B R Ambedkar, the Hindu personal law pertaining to marriages and inheritance was codified in 1955. It was felt that this would pave the way for enacting Article 44 of the Indian Constitution towards the UCC, without alienating religious communities. This brought in the Hindu Succession Act and the Hindu Marriage Act, which sought to give women equal rights in their father and husband's properties. The Hindu law was not only codified, it was done so on modern parameters by tweaking the law and finding lacunae in nomenclature. "Divorce is not permitted under Christianity and Hinduism. For this reason, the Hindu Marriage Act allows for a 'judicial separation'," explains Sanjay Sarin, advocate, Supreme Court.
With the Hindu Marriage Act also came the Special Marriage Act of 1954, which many today believe is the option available to people who do not want to follow the laws of a particular religious community. But this again is a common misconception.
"If you are a Hindu man marrying a Hindu woman, you will automatically be governed by the Hindu Marriage Act. The Special Marriage Act only comes into force in case of inter-religion marriages, where both spouses want to retain then own religion," says Sarin.
For Tahir Mahmood, jurist, former member of the Law Commission and distinguished jurist chair, professor of eminence & chairman at the Amity Institute of Advanced Legal Studies, the government closed its doors to various communities and their practices with the introduction of the Special Marriage Act.
"If you look at the list of relatives and community members that one is prohibited from marrying under the Special Marriage Act, it is a carbon copy of the Hindu Marriage Act. For example, you cannot marry your cousin, which is common practice among Muslim families," he says. The government, according to Mahmood, also left little room for the UCC by enacting a separate Hindu Marriage Act. "If it was serious about a common law, why did it create a separate Hindu law then?"
Mahmood believes that the UCC and reforming personal laws are two entirely different courses of action. "Thinking that the uniform code will replace personal laws and there will be one codified civil law as is the case with the Indian Penal Code is an entirely erroneous interpretation of Article 44 of the Constitution," he says. "Article 44 only means that personal laws should be retained and reformed. And those reforms should be, as far as possible, on uniform lines."
While experts caution against confusing the two issues, the codification of personal law invariably takes the undertones of the UCC. Nalin Kohli, national spokesperson of the BJP and a Supreme Court advocate, stresses on the need to distinguish between rights and rituals. "Equality is an inalienable right. Can the rights of a woman, regardless of whether she is a Muslim or a Hindu, be compromised on the basis of religion?" He, too, suggests that the need for a common law be not confused with religious practices and need for reform within communities. And yet, his views often veer into the territory of religion. "Those Muslims who chose to stay in India chose a secular state, not a theological one. The Indian Constitution is a package to be followed in its entirety," he says.
Carefully skirting the government's position on the UCC, Kohli says that the Law Commission is an "advisory body" and it is following a democratic process in opening up the conversation around UCC. "Those who see this as an assault or those who call the prime minister a dictator are those who do not believe in democratic processes. They are the ones politicising the issue and not the BJP," he says.
Where politics is concerned, the All India Muslim Women Personal Law Board (AIMWPLB) is not far behind in taking credit for stirring the debate. "It was this board that questioned Muslim men and the treatment of their wives. We have been tirelessly working for 15 years towards modifying Muslim laws in favour of women," says Shaista Amber, president of the AIMWPLB.
Working closely with civil society groups such as the Bebaak Collective and Bharatiya Muslim Mahila Andolan, the AIMWPLB has rallied for bringing the Muslim personal law not only in agreement with the Constitution, but also The Quran. "Muslims need to listen to Allah and not the maulana. The Muslim Personal Law Board cannot be complacent about these changes." But, Amber adds, the UCC is not the right way forward. "It will serve no purpose, for any religious community. We need a Muslim Marriage Act along the lines of the Hindu Marriage Act. But a common law is not the answer."
Wajahat Habibullah, former chairperson of the National Commission for the Minorities and India's first chief information commissioner, suggests that diversity is not necessarily a weakness. "The offensive practices in all religious communities need to be looked at. But by stirring up the UCC, you are only alienating communities and vitiating the debate," he says. Citing Shah Bano case, where she appealed to the Supreme Court for adequate alimony, he says, "The Supreme Court decided the case based on the tenets of The Quran, which for Muslims is the law."
John Dayal, writer and former president of the All India Catholics Union, is more sceptical about the very intent behind the UCC. "The Special Marriages Act works as a common law of sorts. But it does not allow same-sex marriages," he says. "What will happen to Section 377 [which prohibits homosexuality] under the UCC?"
Similarly, he adds, will the tax benefits given to Hindus under the Hindu Undivided Family mechanism be done away with? "Besides, the Law Commission's questionnaire is juvenile and binary. When you ask Hindus if triple talaq is bad, 85 per cent of the people will say yes. What say does a Hindu woman have in the religious beliefs of a Muslim woman?"
This, for Dayal, is not a scientific survey and only reveals the Law Commission's "patent enthusiasm for the Rashtriya Swayamsevak Sangh and Prime Minister Narendra Modi". "Ideally, there should be a draft of the UCC that should be made open to debate. We asked this of Atal Behari Vajpayee too and we ask this of the current government."
That personal laws need urgent reform is the only point of agreement among all communities. But unlike Ramchandra Guha, historian and political commentator, who supports the implementation of the UCC, many advocate the presence of a common law as a choice. The true meaning of democracy, they say, lies in equity and not a binary vision of equality. Were he alive today, Nehru would certainly be nodding in agreement.