To begin with, it is known to one and all that uniform civil code has been debated since a long time but it has been postponed indefinitely right since the time when our country became independent. While the Constitution was being framed, the Muslim members to the Constituent Assembly opposed this uniform civil code on the ground that it directly transgressed in their personal laws which was completely unacceptable to them. After a lot of deliberation, discussion and debate, it was decided to usher in uniform civil code in the Constitution as directive principle of state policy which is to be served as a directive to the state and its enforcement was thus postponed indefinitely.
Needless to add, according to Article 44 of Part IV of the Directive Principles of State Policy, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” But even after 70 years of independence we see no fruitful progress being made in this direction. This is most astonishing and reflects poorly on how it has been deliberately sidelined and ignored not even debated, discussed and deliberated properly.
While craving for the exclusive indulgence of my esteemed readers, it must be mentioned here that we saw recently how the All India Muslim Personal Law Board (AIMPLB) started opposing uniform civil code tooth and nail without even studying the questionnaire issued by the Law Commission in this regard. They need to do more homework before concluding that it will interfere with their religion. Why can’t there be a uniform civil code in the country?
Why when Jawaharlal Nehruji who took the highly commendable step of stopping Hindus from marrying more than one women and women also from marrying more than one men were Muslims exempted from it? Why different standards for Hindus and Muslims? One can understand that Nehruji didn’t want to hurt Muslims in any manner as Muslims felt insecure after the painful pangs of partition in 1947 but what about the other Prime Ministers who followed him? Why no PM took any initiative in this direction? Why when Hindus started converting to Muslims to marry more than one women was no check imposed and nothing to done to check the malpractice?
Law has to be one and uniform for all. My best friend Sageer Khan once said to me way back in 1994 that, “Muslims enjoy the most liberties in India all over the world. Muslims must not insist on more and more rights alone and must be more tolerant by allowing Hindus to worship at Ayodhya, Mathura and Kashi which they consider most sacred just like Muslims consider Mecca and Medina most sacred. Will Muslims ever give up Mecca or Medina to Hindus then why they demand the same from Hindus knowing fully well that these places have been sacred sites for them where they have been worshipping since ages? Why film actor Dharmendra had to convert to Muslim to marry again? Why when Dr Ambedkar wanted polygamy to be retained among Hindus even though it was added as a ground of divorce in his ‘The Hindu Code Bill, 1951’ did Nehru abolish it completely but did not touch Muslims? Was it not discriminatory favouring just Muslims alone? Why should law not be applicable equally to all?”
When a Muslim country like Turkey can have uniform civil code since 1926 then why can’t India have uniform civil code after 90 years in 2016? Why do Centre be oblivious of the glaring fact that the Supreme Court which is the highest court in India lambasted the idleness of the government in this regard and termed the uniform civil code a “necessity” in the famous Shahbano case? Why when Goa can have uniform civil code yet other states not have it?
While craving for the exclusive indulgence of my esteemed readers, it must be revealed here that in 1995 in the landmark case of Sarla Mudgal v Union of India, the Supreme Court urged the government to come up with a Uniform Civil Code after a PIL sought to outlaw Hindu men abandoning their wives without lawfully divorcing them, and converting to Islam only to marry a second time. The Court explicitly held up the Hindu Code as the model on the basis of which the Uniform Civil Code should be drawn up.
For my esteemed readers exclusive benefit, let me also reveal here that in yet another landmark case in Lily Thomas v Union of India in 2000, the Apex Court said that it could not direct the Centre to introduce a Uniform Civil Code. But that did not stop the Supreme Court from once again affirming the necessity and desirability of one in John Vallamattom and Another v Union of India in 2003 in the context of succession. In 2015 the Apex Court refused to direct the government to take a decision on the Uniform Civil Code saying it was for the Parliament to make laws.
It must be noted that in 2016 Supreme Court petition by Shaayara Bano and several others including the Bharatiya Muslim Mahila Andolan the legality of triple talaq, polygamy and nikah halala was questioned sharply which has triggered a massive debate on Muslim personal laws. In June, the Law Ministry asked the Law Commission to examine all issues pertaining to the Uniform Civil Code and submit a report to the government.
Uniform civil code will give less importance to religion and more importance to unity of the nation by not giving overbearing precedence to the personal law of any religion! All the drawbacks which are contained in the personal laws of different religions like Hindus, Muslims, Christians can be permanently removed by ushering in uniform civil code for all citizens all across the country. Hindus women will get equal right in property like men which they didn’t enjoy till 2005 and similarly all other discriminatory and derogatory practices which degrade women like polygamy that is a men marrying many women as also women being divorced by a Muslim men saying triple talaq and a Muslim women being ordered to undergo nikah halala that is after divorce with her husband if she wants to remarry him again she will have to marry another man and then obtain divorce from him which is a preposterous and most cumbersome task will end forever. Also, after divorce, a Muslim men is not bound to maintain his ex wife! All this must be rectified immediately. When evil practices prevalent in Hindus like Sati, human sacrifice, child marriage, polygamy and polyandry can be outlawed then why not malpractices prevalent in Muslims and other religions also not be similarly outlawed?
Truth be told, in Hindu law, a wife has fewer inheritance rights than her in-laws over her husband’s property. Similarly a Hindu husband has more rights than his in-laws over his wife’s property. This needs to be rectified at the earliest. Also, what is often overlooked is how much discrimination Christians have to face under their personal laws. In Christian law, a husband can get a divorce on grounds of adultery but a wife has to prove adultery and cruelty. Similarly, Christians are not allowed from willing property for charitable and religious purposes as Section 118 of the Indian Succession Act forbids it which is most bizarre and must be done away with immediately!
It has to be borne in mind that in its communication to the Law Commission of India, the Central Government had argued vehemently that, “The aim of Uniform Civil Code is to divest religion from social relations and personal laws to ensure equality, unity and integrity of the nation and justice to both men and women”. What is wrong if PM Modi wants to make all civil courts religion neutral? He is certainly not imposing Hindu religion on all Indians as some people have been wrongly propagating.
Be it noted, a senior government official while explaining the Law and Justice Ministry’s move to seek a report from the Law Commission on the subject clarified that, “The government does not intend to turn laws governing Hindus into Uniform Civil Code. The intention is to adopt virtues of all prevalent personal laws and make all civil courts in the country religion neutral.” Let me hasten to add here that in its communication to the Law Commission, the government has also asked the panel to look into examples of Turkey, Egypt, Italy and Germany, where societies are heterogeneous and still “civil code governs people uniformly in such matters”. It also cited Goa state as an example where there is one civil code.
It is the bounden duty of Centre to meet more and more delegation from Muslims, Christians and people of other religion to ensure that they are briefed properly that uniform civil code will not impose any particular religion on anyone and everyone would be treated equally. Many right minded people which includes many Muslims like former Union Minister Arif Mohammad Khan have rightly called for great reforms in Muslim personal laws and have called upon Muslims to “adhere to international human rights standards and its own constitutional provisions safeguarding the interests of women”.
Uniform civil code can be ushered in by initially making it purely voluntary in the country. This is exactly what Dr BR Ambedkar who is the founding father of our Constitution had rightly suggested. He had said that, “It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary”.
To put things in perspective, it must be brought out here that the Uniform Civil Code was also sought to be included in the Constitution as a fundamental right in 1947 by Minoo Masani, Hansa Mehta, Amrit Kaur and Dr BR Ambedkar. But they were outvoted. In 1948, the Constituent Assembly debated the Uniform Civil Code and 5 Muslim members opposed it on ground that it would run against the right to freedom of religion. But KM Munshi and Dr BR Ambedkaar disagreed.
It is beyond a straw of doubt that uniform civil code will help in ushering “religion neutral” civil courts. Also, all people from different religions and communities can come together under one roof and no one would be given a separate treatment based on religion alone. There will be no feeling of disgruntlement that by adopting a particular religion, you are free to marry more than one women or get rid of your wife so easily by just saying talaq thrice. Personal laws are not cast in stone that they can’t be changed to meet the present circumstances. Derogatory practices like triple talaq, nikah halal, polygamy, dowry etc which denigrates women to the most abysmal level must be completely abolished because they can never be justified on any ground whatsoever!
It is the job of Centre to act decisively in favour of ushering in uniform civil code in our country. It is certainly not the job of the judiciary to usher in uniform civil code. Tahir Mohammad who is ex-Chairman of National Minorities Commission and member of the Law Commission of India rightly points out that, “Legislative inaction on reform issues such as triple talaq leads to law making by the judiciary. The constitutionally mandated job of providing for social welfare and reform is to be performed by the executive organ of the state through its legislative counterpart. Ordinarily, judges have to interpret and not make the law, but are often driven to that job by endless inaction on the part of the other two organs of the state. It amounts not to excessive judicial activism or overreach but to discharging a constitutional obligation.”
Tahir also rightly pointed out that, “The NDA government is being enthusiastically complimented and vehemently critiqued by different sections of citizens for its “bold stand” in relation to the issues of Uniform Civil Code (UCC) and Muslim personal law. But the fact is that it has not initiated any action in either case on its own volition. The reference of the UCC to the Law Commission in July this year and the affidavit on Muslim divorce law filed in the apex court last week have been in response to judicial concerns.”
Centre must make sure that a thorough debate, discussion and deliberation is undertaken before uniform civil code is enacted in India. Hectic efforts must be made to build all round consensus. Also, Centre must usher in uniform criminal code or uniform national code by which those who burn flags or insult national anthem or rant anti-India slogans or hail enemy nations are made to either vacate India or penalised severely along with a jail term of 2 years on first conviction and more severe punishment of 10 years or more for repeated offenders or to fall in line and respect our nation’s flag, national anthem, unity and integrity of the nation. This is much more easier to do as consensus on this can be forged easily but Centre is taking no initiatives in this regard! I am sure that Muslims or Christians will have no problem in this regard but Centre is not saying a word on it!
Sanjeev Sirohi