A uniform civil code is
everybody's pipe dream-or pipe nightmare
Article 44 of the Constitution of India reads: “The State shall
endeavour to secure for the citizens a uniform civil code throughout
the territory of India.”
The first Prime Minister of India, Jawaharlal Nehru, and the first Law
Minister, BR Ambedkar, were both modernists who wished to reform
archaic personal laws and bring them in line with progressive notions
of gender justice. They were both committed, in theory, to a Uniform
Civil Code. However, faced with the bitter opposition of Muslim members
in the Constituent Assembly, they decided to begin with the reform of
the personal laws of the Hindus, a community whose liberal wing was
both influential and articulate. All the same, it took them all of
eight years to pass the laws that finally made caste irrelevant in
marriage, allowed Hindu women the right to choose or divorce their
marriage partners, abolished bigamy and polygamy among Hindus and
granted Hindu daughters and wives rights in the property of their
fathers and husbands.
The opposition to the reform of Hindu personal laws was led by the Jana
Sangh (forerunner of today’s BJP) and the RSS. The RSS held hundreds of
meetings throughout India, where the proposals to outlaw bigamy and to
give women property rights were denounced in the strongest language.
The Hindu Right claimed that, as one born in a low-caste home, Ambedkar
had no business or authority to interpret or override the Hindu
shastras. The laws being drafted to allow personal choice in marriage
and inheritance rights to daughters were denounced as “an Atom Bomb on
Hindu society”.
On the other side, the socialists and Communists chastised the
government for not reforming the personal laws of all communities. In
the Lok Sabha, a Communist member named BC Das called the new laws for
Hindus “a mild, moderate attempt at social reform with all the
hesitancy and timidity characteristic of all social measures sponsored
by this government”. The great socialist parliamentarian, J.B.
Kripalani, told the government that “you must bring it [the new laws]
also for the Muslim community. Take it from me that the Muslim
community is prepared to have it but you are not brave [enough] to do
it”.
Such were the alignments in the 1950s; how different are the alignments
now! For the last two decades, the BJP and the RSS have insisted that
since the Hindu laws were reformed, the Muslims should also follow
suit. The demand gathered pace after the Shah Bano controversy, and has
figured heavily in the BJP’s oral rhetoric and printed publications
through the 1990s and beyond. On the other side, those professedly
secular parties, the Congress and the Communists, are now bitterly
opposed to the framing of a Uniform Civil Code.
The debates of the 1990s and beyond have thus placed the major
political parties in exactly the opposite positions as they had found
themselves in the 1950s. Then, the Jana Sangh and the RSS had opposed
the granting of equal rights to Hindu women; now, they say that they
stand for equal rights for Muslim women. Then, the Congress and the
Left had supported, and indeed had passed, personal laws in favour of
the majority of Indian women; now, they say they are not in favour of a
further extension to Muslim women.
It is difficult to credit the BJP with being seriously committed to
ensuring justice to Muslim women. In its six years in office, it did
not make the slightest attempt to introduce legislation in Parliament
that would, for example, have abolished polygamy, enhanced the rights
of widows and divorced women or mandated gender-neutral property and
inheritance laws. This may well have been because to resolve the issue
would have been to render it impotent as an electoral gambit. So long
as the Muslims had their separate laws, it was easy to portray the
community itself as separate, and hence not worthy of trust.
As for the Congress, in opposing a common civil code, it is deeply
oblivious of its own history. The drafting and passing of a
gender-sensitive civil code for all Indians would, in fact, only be a
fulfilment of the Congress’s and constitutional legacy. Sadly, the two
women who have led the Congress party for long periods (Indira Gandhi
and Sonia Gandhi) have not — at least in this respect — moved an inch
to enhance the rights of their fellow women citizens. Even more
culpable in this regard was Rajiv Gandhi. The Supreme Court judgment in
the Shah Bano case presented the government of the day with a
marvellous opportunity to push through progressive legislation on
behalf of all Indian women. Rajiv Gandhi had 400 MPs at his command;
what he did not have was an understanding or appreciation of his own
grandfather’s legacy.
The reform of family law has thus become deeply politicised, subject to
the pressures of party politics rather than governed by the principles
of gender justice or the ideals of the Indian Constitution. But, as
Shabana Azmi has pointed out, “For far too long women have been
victimised and justice has been denied to them under the pretence of
personal law.” This is true of formal Muslim law but also of customary
Hindu law, as in the still-powerful caste councils that ostracise women
who dare marry outside their community. There is thus “an urgent need
to cull out the just and equitable laws of all religions and form a
blueprint for a uniform civil code based on gender justice”.
Azmi’s formulation allows us to alleviate the fear that any new,
all-India law would be modelled on Hindu law alone. Jurists can work
from first principles, in designing personal laws that do not
discriminate by caste or gender or religion. To be modern, and Indian,
we need surely to honour and uphold the essential principle of a modern
democracy, which is also the guiding spirit of our Constitution,
namely, ‘equality before the law’.
The first woman Chief Justice, Leila Seth, has persuasively argued that
a common civil code “will help break down those customary practices
harmful to women and give women individual identity as independent
citizens of India”. To the fear that such a code would imperil
religious freedom, she has this answer: “A uniform civil code will not
take away the right to perform religious ceremonies and rituals; but
would any woman object to a code that gives her equal property rights,
protection from polygamy and arbitrary divorce, and the right to adopt
and the right to inheritance even if her father or husband converts to
another religion?”
These voices of independent feminists and liberal jurists have,
however, been drowned out in the din of partisan politics. The BJP will
speak of a Uniform Civil Code simply to spite the Muslims, but shall
make no move to implement it, preferring to have the issue hang as a
threatening Damocles Sword instead. The Congress and its allies will
oppose a common civil code for reasons that are equally perverse —
because the BJP claims to support it, and because they can then be seen
as standing alongside the Muslim minority or, rather, with the priestly
orthodoxy which professes to speak in its name.
The writer is the author of India
after Gandhi: The History of the World’s Largest Democracy
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