The debate on “one nation, one code” is going on in the country amid discussions on many other issues. The narratives seen in newspaper columns, heard in drawing rooms, and bolstered by specific statements by political and religious leaders are indicators towards moves to put in place a uniform civil code. The subject is not new for Indian politics – it has been at the center and sidelines of political and legislative debates for more than a century and a half. It has long featured on the agenda of the BJP, now the ruling party, and found mention in its manifesto for last general election.
Recently the Gujarat government announced that it has decided to form a committee to implement the uniform civil code in the state. In May this year, Uttarakhand government appointed a Committee of Experts under chairpersonship of retired SC judge Ranjana P. Desai to draft and implement UCC. Some other state governments are also taking initiatives in this direction.
Assam and Himachal Pradesh, both ruled by the BJP, also have supported the idea of a UCC. Though several state governments and political leaders have backed the UCC saying that it will bring equality, some organizations such as the All India Muslim Personal Law Board and All India United Democratic Front have termed it unconstitutional and an anti-minorities move. As a lawyer, I believe that the Muslim community should be at the forefront of supporting uniform civil code. The objective of one code is that it will end discrimination in religions.
While penal codes apply equally to everyone in the country, citizens belonging to different religions and denominations follow different personal laws in matters relating to marriage, divorce, maintenance, custody and guardianship of children, inheritance and succession, and adoption, which are not even codified at most places. It is certain that the UCC is going to have the most positive impact on the problems and issues related to women’s rights.
Although efforts have been made in past to make changes in the personal laws of all communities in the interest of women, with handful successes over time, but a lot still remains to be accomplished. In fact, personal laws are deep-rooted in the societies they are practiced, fundamentally based on old customs, beliefs, and patriarchal religious interpretations, and are not easy to abolish as they usually appear.
On the ground much of the situation is unclear about UCC – Muslims feel that it is interference in their religious affairs, whereas it talks about gender parity and equal rights for all. The code has nothing to do with any one religion, it speaks of uniformity. At a time when the country is highly polarized along religious lines, any reform is propelled to be envisaged an onslaught on Islam by a mass of Muslims. Detractors argue that it will rob the nation of its religious multiplicity and would be violative of the fundamental rights enshrined in the Constitution. In fact, they deem that a state action to bring in the UCC is contrary to the quintessence of democracy.
Looking at the status of women in the society, Dr. Bhimrao Ambedkar had said that the progress of a community is measured by the degree of progress which women have achieved. If we want the upliftment of any society, then we have to work towards the empowerment of the women of that society. For this, there is a need for a robust legal system, which can protect women’s interests and provide them equal rights and justice. No doubt that the Muslim community is most in need of a uniform civil code. Keep in mind that in a community where women do not get equal rights legally, there can be no thought of social justice. If the Muslim community wants to give up its orthodox thinking and make a place in the mainstream and aspires to better the future of its children, then it must first give equal status to its women. A uniform civil code can be a great start.
There are numerous provisions under Muslim personal law that victimize women and do not give them the rights women of other religions enjoy.
Imagine polygamy, a misogynistic and patriarchal practice, under the disguise of religious practice in a secular country in the twenty-first century. It is abhorrent – morally, socially, and legally, and must be banned but the fact that it’s legitimized makes it problematic. Albeit triple-talaq is banned (in the context of the talaq-e-biddat), talaq-e-hasan is still valid. In other religions, marriage can be dissolved only through court of law.
Due to lack of accountability of the judiciary for the prevalent divorces among Muslims, women always have to live in an atmosphere of fear. In cases where women get divorced through ‘khula’ (the situation in which the wife initiates divorce proceedings) remain at a loss. Women were not entitled to maintenance after divorce under The Muslim Women (Protection of Rights on Divorce) Act, 1986, although the court has given this right under sections 125–128 of the CrPC, 1973. Vile practices such as Nikah halala have not ended in the community yet.
Child marriage has been a part of Muslim personal law and the courts and administrations are handicapped in these cases. The age of majority is not fixed; girls are allowed to get married as long as they have attained puberty. Although right to freedom of religion or belief is a fundamental human right, it doesn’t permit violation of women’s rights and cannot be invoked to justify discrimination.
Legislatures require to ensure that violations of women’s rights resulting from child marriage are not legitimized through discriminatory personal laws. Governments have an immediate legal obligation to eliminate discriminatory provisions in personal laws and to harmonize all laws on child marriage with international human rights standards.
These issues are more related to human rights than religion and indicate that women are long-standing victims of prejudice in the community. Muslim women, however, face perhaps the greatest challenges due to multiple layers of discrimination rooted in religion, gender equality, and rule of law, yet even after 75 years of independence.
The matters related to inheritance and succession are also complex in Muslim personal law – there is a lot of discrimination between sons and daughters in ancestral property. The share of a female heir on property is half of that of the male heirs. There is no provision for the protection of rights of daughters after marriage in the ancestral property and the rights of the wife in the property acquired after marriage are undefined. Although, this law has been changed in some states in recent times.
These issues are more related to human rights than religion and indicate that women are long-standing victims of prejudice in the community. Muslim women, however, face perhaps the greatest challenges due to multiple layers of discrimination rooted in religion, gender equality, and rule of law, yet even after 75 years of independence.
Our Constitution makers had envisioned uniform civil code through Article 44, so that every citizen would have equal rights and the unity and integrity of the country would be strengthened, but it could not be achieved until this day due to pseudo-politics. If a uniform civil code can be enforced in Goa, then why it can’t be in the rest of the country?
By implementing a uniform civil code for all the citizens hundreds of religious- and customary-based laws in practice will be revoked, which is very essential for a progressive nation. At present, different laws applicable for different religions, regions, and communities and most of them are patriarchal, regressive, and against the interest of women in society.
A common law for dissolution of marriage through court would be applicable to all. Offspring, both male and female, will have equal rights in ancestral property, and discrimination based on religion, caste, region, and gender will end. In case of divorce, both the husband and wife will have equal rights in the property acquired post-marriage. There can be proper legal arrangement for a reasonable and fair provision and maintenance of woman who has not re-married and is not able to maintain herself after divorce.
In respect of bequests, donations, distribution, adoption, etc., the same law would apply to all Indians, regardless of their religion. This would enable a comprehensive and unified law at the national level and would be equally applicable to all citizens. The separatist mentality arising out of having separate laws on the basis of caste, religion, and region will culminate and societies will be able to move fast towards building a united nation. Having different laws leads to unnecessary litigation and engages valuable resources, infrastructures, and government machineries, which can be redirected to focus on other priority issues of the country.
The Constitution lists the UCC among the Directive Principles of State Policy, which makes it a desirable objective, but it is not justiciable — that is, they are not subject to trial in a court of law. According to Article 37, “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
Article 44 is one of the DPSP, described in Part IV of the Constitution. Article 44 says, “The state shall endeavor to secure a uniform civil code for the citizens throughout the territory of India.” Just as the observance of the Constitution is the fundamental duty of all citizens, it is the moral duty of the government also to implement the Constitution one hundred percent.
In a secular country, there is no place for separate law on religious grounds, but we still have Hindu Marriage Act 1955, The Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937, Parsi Marriage and Divorce Act, 1936, and Special Marriage Act,1954 in force. There is a bazaar of family laws based on faiths showcased in our so-called secular country. The situation is worst in other areas of family matters such as child custody/support, paternity, succession and inheritance, and adoption/foster care. There can be no two opinions that a secular nation needs to have secular laws which are gender just. Until the time a uniform civil code is not implemented, it does not seem appropriate to call India secular.
Different laws based on religion, region, caste, and gender existing in India are like smoldering smoke in the extinguished fire of partition, which can explode and break the unity of the country at any time. It is necessary not only to maintain secularism, but also to keep the integrity of the country intact. The day a draft of the uniform civil code will be prepared and the public will know its benefits, no one will oppose it. This will help end fundamentalism, communalism, regionalism, and linguism.
Given that Hindu Code Bill has been amended almost to its full and women and men already have almost equal rights under this code, Hindu women may not get much benefit from uniform civil code. However, Muslim women will get the maximum benefit from it, considering gender-based inequality in practice in their community.
The court cannot ask the government to enact, amend, or repeal a law, but it can express its position and is doing the same at time and again. If the BJP-led government really wants to move towards a uniform civil code, then it will have to first win the trust of everyone and put forward a draft which can be discussed from home to Parliament.
