Modernising Personal Laws
IS THE NARENDRA MODI government weaponising the Uniform Civil Code (UCC) ahead of the 2024 Lok Sabha election?
The Indian Constitution wanted personal laws of all religions to be codified under a modern, progressive law. Article 44 of the Constitution says unambiguously: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."
India's first Prime Minister Jawaharlal Nehru was quick to codify most areas of Hindu personal law with legislation between 1955 and 1956. Bigamy was outlawed, inheritance laws modernised, and women's rights following divorce regularised. But Nehru demurred when it came to codifying minority personal laws.
Muslim laws dictating marriage, divorce, inheritance, adoption, succession and property were governed by Shariat. Nehru was not prepared to challenge the powerful Muslim clergy in a newly independent country still scarred by the wounds of Partition.
For over 70 years the consensus has held: Muslim personal laws should not be touched. It would mean navigating a thicket of religious complexity and sensitivity. Muslim clerics pointed to Parsis, Christians, Sikhs and Jews who had their own personal laws. Why tamper with age-old scriptures and create trouble when everything is fine?
The problem: everything isn't fine. The 1985 Shah Bano case highlighted the tyranny of injustice Muslim women face when their husbands divorce them. After Prime Minister Rajiv Gandhi nullified the Supreme Court's verdict granting her maintenance and despite a small monthly allowance finally being granted to her, Shah Bano was forced by the Muslim clergy to refuse even that allowance. She died destitute.
Other communities, too, have regressive personal laws. For example, Parsi women who marry a non-Parsi are not allowed to enter a fire temple or get their children solemnised in the traditional Navjote ceremony.
Gender bias lies at the core of minority personal laws. Muslim men have the right to marry four wives, divorce them at will, refuse to pay alimony, and commit adultery. The Sunni-led All India Muslim Personal Law Board (AIMPLB) is at the forefront of opposing progressive personal laws.
Arguing against the proposal to implement UCC, AIMPLB recently declared: "Majoritarian morality must not supersede personal law, religious freedom and minority rights in the name of a code which remains an enigma. The most crucial document of our nation, the Constitution of India, is itself not uniform in nature, prudently and with the intention to keep the country united. Different treatment, accommodation, adjustment is the nature of our Constitution. Different territories of the nation have been given different treatments. Muslims in India will not be agreeable to lose this identity of which there is space within the Constitutional framework of our country. National integrity, safety and security and fraternity is best preserved and maintained if we maintain the diversity of our country by permitting minorities and tribal communities to be governed by their own personal laws."
Seeking to validate this argument, Prashant Jha wrote in an op-ed in Hindustan Times on July 6, 2023: "The fundamental argument against UCC comes from a concern about preserving diversity and minority rights. India is home to various identities, and therefore, critics of Modi's appeal argue, these different identities must be allowed to retain their distinct cultural and religious moorings. Ignoring the heterogeneity of Indian society to impose a uniform law will not lead to uniformity, but further alienation, not just among religious minorities but also the country's various tribes."
Diversity is obviously good but not at the cost of gender equality. Minority rights aren't meant only for men. Besides, India's many communities won't sacrifice their religious or cultural diversity under a progressive UCC. They will still pray the way they want, dress the way they want, and celebrate their festivals the way they want.
Babasaheb Ambedkar and his co-authors of the Indian Constitution had predicted the adverse reaction of minorities to a uniform civil code. That is why they left its implementation to the discretion of the government. Over the decades, discretion has proved the better part of valour for successive governments.
Ordinary Muslims—especially Shias, Memons, Bohras and Khojas—are neutral on UCC. Sunnis are vehemently opposed. I asked one whether he would want Shariat, which he called "the most progressive law in the world", to be implemented for Muslims for criminal offences as well in place of the Indian Penal Code (IPC). Under Shariat, criminal offenders are punished using medieval methods, from lashings to beheadings. His silence was instructive.