One Nation, One Civil Law

ON APRIL 23, 1985, A FIVE-JUDGE BENCH OF THE SUPREME COURT HEADED by then Chief Justice of India (CJI) YV Chandrachud dismissed the appeal of Mohammed Ahmed Khan against a high-court ruling on paying a paltry alimony of ₹179 per month to his divorced wife Shah Bano Begum. Khan, a well-to-do lawyer from the elite of his commu­nity, had an annual income of ₹60,000 in the late 1970s. Yet, he argued that it was against the Sharia to pay his divorced wife a reasonable maintenance fee per month over and beyond what was prescribed, that is, only during a very short iddat (waiting) period of between 89 and 128 days after separation or divorce or the death of the husband. This provision was originally meant to ascertain the paternity of any child born in wedlock. Shah Bano, divorced after 46 years of marriage through the pronouncement of ‘triple talaq’, initially approached a court in Indore which awarded her a miserly sum of ₹20 per month as alimony. She then appealed in the High Court of Madhya Pradesh for a monthly alimony of ₹500, demanding maintenance from her husband under Section 125(3) of the Code of Criminal Procedure (CrPC). Subsequently, the sharia-surcharged Khan challenged the high court’s order in the Supreme Court, which eventually dismissed his appeal.

It was a landmark judgment that rekindled debate on the long-dormant issue of a common civil code for all Indians, irrespective of caste, creed, gender and community. In the longer term, the case became a defining one for equal rights for Muslim women in marriage and divorce, adoption, inheritance and other matters in regular courts. But it was only many decades later, during Narendra Modi’s tenure as prime minister, that another landmark verdict of the Supreme Court on August 22, 2017 was pro­nounced: the court deemed the regressive practice of triple talaq or talaq-e-biddat—the pronouncement of “talaq” three times in one sitting—both “un-Islamic” and “against the Constitution”. Along with this practice of instant divorce, there are other highly regressive and gender-unjust forms of divorce prescribed in Islam from ancient times, including one which requires the wife to be married to another person and the consummation of the mar­riage if she wants to be remarried to her first husband.

In its verdict the Supreme Court said Section 125(3) of the CrPC applied to all citizens irrespective of their religion, includ­ing Muslims, and that it overrode the personal law in the event of any conflict between the two. The judgment made it clear that there was no conflict between the provisions of Section 125 and those of the Muslim Personal Law (Shariat) Application Act, 1937 on the issue of the Muslim husband’s obligation to provide maintenance to a divorced wife incapable of maintaining herself financially. However, while the 1937 Act provides for the divorced wife to be paid a paltry support for the short period of iddat, the verdict also provides that in the event of the wife not having the means to support herself, the husband’s obligation to pay main­tenance extended beyond iddat. The judges also castigated the All India Muslim Personal Law Board (AIMPLB) for supporting the husband, stating that the rule according to the 1937 Act was inhumane and was wrong since the divorced wife was not in a condition to maintain herself. The Supreme Court concluded that the husband’s legal liability would come to an end if a divorced wife was competent to maintain herself. But when the wife was not able to maintain herself after the iddat period, she would be entitled to maintenance or alimony under Section 125 of CrPC.

The Shah Bano judgment presented an ideal opportunity to move forward on Article 44 of the Constitution which expressly urges the state to make all efforts to enact a Uniform Civil Code (UCC) for the country. But then-Prime Minister Rajiv Gandhi buckled under the pressure mounted by the Islamic clergy and AIMPLB and did not grasp that opportunity. Instead, he brought in the controversial Muslim Women (Protection of Rights on Divorce) Act, 1986 to nullify the Shah Bano judgment. The move sent shockwaves across all sections of society and spelt a huge setback to any government effort to bring in a UCC for all Indians, integrating the country and bringing in Muslims and all minori­ties within a common civil legal framework. This was a whole 67 years after the Hindu personal laws were codified.

THE STORY OF the Muslim Personal Law (Shariat) Application Act, 1937 goes back quite a bit before the Shah Bano judgment of 1985 and was cast in the fur­nace of separatist politics and gender injustice in the Punjab of the 1930s.

A daughter of the Tiwana family in Punjab claimed her right on ancestral property. The Sharia sanctioned only half of a man’s share of the property to a woman and that was all she wanted. In order to thwart her and other Muslim women from making similar claims, the Legislative Assembly brought in a Bill that endorsed the local custom of primogeniture, by which the first-born male child would inherit property. This would effectively stymie attempts by Muslim women to inherit property as sanctioned by the Sharia. However, the Bill was opposed by powerful rural landlords.

The Shariat Bill was subsequently also introduced in the Central Legislative Assembly. And that was where the Bill’s shape shifted significantly, after Muhammad Ali Jinnah recognised its potential in carving out a single constituency from various denominations of Muslims across the subcontinent. To do that, he had to ensure that the interests of the most powerful voices in the community were built into the Bill even if, in the process, it undermined the accepted sanctions under Sharia. In effect, the Bill would omit, even violate, those sanctions of the Sharia consid­ered inimical to the interests of the Muslim elite. But it was passed off in the name of the Shariat Bill and Muslim Personal Law.

Although Islam arrived in the subcontinent in the 8th century, even an emperor with a reputation as controversial as Aurangzeb’s did not attempt to bring in Sharia for all Muslims. It was 230 years after his death that the so-called Shariat Bill of 1937 was drafted. S Gurumurthy, the editor of Thuglak, writes that the critical part of the 1937 law contains just 92 words to override the traditional Hindu law that converted Muslims were following and these were related to the crucial ar­eas of making a last will and testament, adoption (which Islam prohibited but prevailing Hindu customs, followed by thousands of Muslims, did not) and inheritance of agricultural lands, with the richest property owned by the most elite Muslims across India at the time. For the rest, the law virtually imposed many rules of Sharia on Muslims in or­der to whip up hysteria on Islamic unity and community identity. Ironically, those 92 words in the 1937 Act are now being held as “immutable and divine Islamic law” which Muslims cannot violate without severe repercussions, including ostracism.

“Far from being the divine Islamic Sharia law prescribed for Muslims by Islam, the Shariat Act, 1937 undermined Islamic Sharia by smug­gling in three core rights granted in Hindu law into the Shariat. First, the 1937 law permitted Muslims to write wills to leave their properties like the Hindus do, to whosoever they liked, which is prohibited by Islam. Second, it excluded agricultural land—the most valuable asset then and even now—and made the laws of Hindu <rishis> continue to apply to govern the Muslims. And third, it permitted childless Muslims to adopt, like Hindus, which Islamic law—even the Prophet—prohibited. In pure Islamic theology, the 1937 Act is anti-Quran—a blasphemy in Islam,” Gurumurthy writes.

The three exceptions surreptitiously included in Section 2 of the Shariat Act successfully ensured that Muslim women were deprived of inheritance rights sanctioned by the Sharia by proclaiming that the law would take priority over all others for Muslims. It was both anti-Islam and anti-women. Even when depriving Muslim women of inheritance rights sanctioned by the Sharia, it legitimised practices like polygamy and a plethora of divorce rites which were abhorred by local Hindu customs and laws. Whenever such issues were raised thereafter, the divinity of the Shariat Act would be brandished even if it meant depriving thousands of Muslim women of gender justice and their funda­mental rights guaranteed by the Sharia itself.

The Shariat Act was a trade-off between the Muslim League and upper-caste Ashrafis—all of whom benefitted from it directly—and the British who were keen to keep Hindus and Muslims divided

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The Shariat Act was a trade-off between the Muslim League and upper-caste Ashrafis—all of whom benefitted from it direct­ly—and the British who were keen to keep Hindus and Muslims divided. To that end, the Shariat Act worked as a weaponised tool for separatism, based on community identity for Muslims of the subcontinent. Its aim was to cut off ordinary Muslims from their Hindu neighbours and their customs, rituals and laws; to insulate them and create an inimical social environment by harping on a separate Muslim communal identity. On the face of it, it united the interests of all Muslims, the elite Ashraf (descendants of Arabs and other invading groups, including social and economic upper classes like Syeds and Sharif) and the Ajlaf (local converts con­sidered the bottom of Muslim society, in­cluding converts from among Shudras and Adivasis), under one umbrella, that of Islam. It is another matter that these social categories are not mandated by the Quran but persist among the sub­continent’s Muslims. The Pasmandas, who belong among the Ajlaf, are the fo­cus of the Bharatiya Janata Party’s (BJP) outreach and are the most discriminated against and exploited of Muslim groups. Although they are estimated to be well over 80 per cent of all Indian Muslims, the Persian term ‘Pasmanda’ means the “ones left behind” and is used to describe the depressed classes among Muslims.

Over decades, the Shariat Act has, in the hands of the elite and the clergy and endorsed by organisa­tions like AIMPLB, put on a successful pretence of carving a solid, unified bloc out of these diverse groups, with a common interest rooted in the divine sanction of Islam.

LITTLE HAS CHANGED from the Muslim point of view on UCC since the Shah Bano judgment, with the elite and influencers of the community consistently defending the Shairat Act of 1937. Just a decade after the law was enacted, on March 30, 1947, the Sub-Committee on Fundamental Rights of the Constituent Assembly mulled a Uni­form Civil Code for the country. Minoo Masani, Hansa Mehta, BR Ambedkar and Rajkumari Amrit Kaur felt that a common civil code for all Indians on marriage, property inheritance and so on was imperative. Five other members of the panel pre­ferred avoiding bringing up UCC at a sensitive time when the Muslim League could still indulge in brinkmanship over a sepa­rate Muslim nation. The subcommittee subsequently argued that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” in Part 4, Article 44 of the Constitution, one of the Directive Principles of State Policy. That decision to frame the issue through the Hindu-Muslim lens has continued to preface every debate on UCC over the last eight decades, with no codification in sight.

Staunch advocates of the Shariat Act perceived UCC as some­thing that would undo the pact they had worked out with the British. That pact aimed at the psychological insulation and isolation of the Muslim masses—many of whom followed lo­cal customs and laws from Hindus—even when it safeguarded the wealth, privileges and social status of the elite Muslims. The implication, an immense fallacy, was that the Muslim Personal Law stemmed directly from the Sharia and had divine sanction. In effect, it was immutable and could only be interpreted by the Ulema and no lawmakers in a secular country could change it. “It was a conspiracy, not only against India and the Hindus, but also against the Muslim masses,” Gurumurthy maintains.

Sharia is Islamic canonical law based on the teachings of the Quran and the traditions of the Prophet (Hadith and Sunna), prescribing both religious and secular duties and sometimes retributive penalties for law-breaking. The Act of 1937 is not of the Sharia by any stretch of the imagination and was, in fact, coined by Kafirs, a joint and highly motivated concern rooted in Anglo-Mohammedan vested interests. Even with this kind of faith in the immutability of whatever was supposedly the word of the Prophet, the Ulema have never argued for Sharia in the sphere of criminal justice. Sharia provides for amputation, pub­lic whipping, and lashing, death by public stoning, etc for theft, adultery and debauchery. The Ulema did not make such claims, mainly because the intent of the elite Muslim classes was always to ensure control over the entire Muslim society and deploy it as a weapon in their battle to safeguard their own privileges and maintain Ashraf hegemony.

The verdict in the Shah Bano case was a landmark judgment that rekindled debate on the long-dormant issue of a Common Civil Code for all Indians, irrespective of caste, creed, gender and community. In the longer term, the case became a defining one for equal rights for Muslim women

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In several Islamic countries, Sharia has been supplemented by legislation adapted to modern times and to foster nationalism, although the manner in which it should be applied is still subject to debate between traditionalists and reformists. AIMPLB, for one, was and is completely aware of this but has resisted reform of the Shariat Act or support for UCC on the false contention that the Act has religious sanction.

In independent India, it was thought fit to codify the personal laws of the majority Hindu community and pass the Hindu Code Bill forcibly by Parliament, apparently in the interest of reform and alignment with progressiveness. But Muslim personal laws were left by the leaders of independent India to the elite of the Muslim community. The symbiotic relationship worked well for both sides through decades: in return for political appease­ment and concessions of every sort, the self-appointed gatekeep­ers of Indian Muslim identity traded the electoral allegiance of those they held in cultural and religious thrall. In the process, a common civil code for citizens of all faiths was also blocked, one that reformed not only the law but also the Muslim com­munity, pulling it back from regressive practices and gender injustice as well as separatist ideologies by drawing it into the national mainstream.

ON JUNE 27, WHILE addressing a rally in Bhopal, Prime Minister Narendra Modi said the Supreme Court has repeatedly called for a common civil code. “If there is one law for one member in a house and another law for others, will the house be able to run? So how will the country be able to run with such a dual system?” he asked. Coming just before the meeting of parties opposed to Modi in the run-up to the 2024 General Election, it was perceived as a strategi­cally timed political move to divide the opposition on a critical issue haunting the nation’s imagination, as much as it posed a philosophical challenge.

On March 30, 1947, the sub-committee on fundamental rights of the Constituent Assembly mulled a Uniform Civil Code for the country. Minoo Masani, Hansa Mehta, BR Ambedkar and Rajkumari Amrit Kaur felt that a Common Civil Code for all Indians on marriage, property inheritance and so on was imperative

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If the verdict banning triple talaq and criminalising its prac­tice, won by the Modi government in 2017, is anything to go by, the government is unlikely to back down from its determination to legislate UCC. The Supreme Court, in the Shayara Bano case (2017) had declared the practice of triple talaq unconstitutional. The Union government argued that practices such as triple talaq and polygamy adversely affected the right of a woman to a life of dignity. It also raised the question as to whether constitutional protection given to religious practices should extend even to those not in compliance with the Fundamental Rights. In May last year, an expert committee headed by a retired Supreme Court judge was constituted by the Uttarakhand government to implement UCC and for checking all the relevant laws that control personal matters for those living in Uttarakhand. The proposed law from Uttarakhand could be the template on which a UCC at the na­tional level is based. As with the triple talaq case, the benefits that would accrue to ordinary people of all faiths could make concert­ed opposition difficult, unlike that mounted in earlier instances. Despite the minority appeasement politics played by the opposi­tion parties so far, it is unlikely that any of the parties will dare to take up the controversial cause of bringing back the regressive practice of triple talaq. In the months before the developments in Uttarakhand last year, the Allahabad High Court, too, called upon the Union government to initiate the process for implementing UCC, adding to a fertile climate for rekindling the debate.

It is a climate that has been building up steadily. In its verdict of 1985 on the Shah Bano case, the Supreme Court had expressed its regret that Article 44 of the Constitution remained a dead let­ter and held that a common civil code would help the cause of national integration by removing disparate loyalties to laws with conflicting ideologies. For almost a decade after the Shah Bano judgment, the Supreme Court was quiet on the issue except to dismiss a writ petition filed by Mahrishi Avdesh in 1994. The peti­tion challenged the 1986 Muslim Women (Protection of Rights on Divorce) Act, legislated specifically to annul the impact of the Shah Bano judgment, and sought the legislation of a UCC or codi­fication of Muslim Personal Law. It said, “These are all matters for the legislature.” In that period, although the apex court upheld the validity of the 1986 Act, it continued to rule undeterred—in the Danial Latifi (2001), Iqbal Bano (2007) and Shabana Bano (2009) cases—that Muslim women could not be deprived of the benefit of Section 125 of CrPC mandating husbands to pay ali­mony to wives. In the Sarla Mudgal judgment of 1995, however, the Supreme Court was more insistent that the legislature take steps to enact UCC. In March this year, the apex court dismissed a PIL on enactment of a UCC saying, for the umpteenth time, that it fell “within the exclusive domain of Parliament.”

However, in the debate on enacting UCC, the more things ostensibly change, the more they remain the same. The Muslim Women (Protection of Rights on Divorce) Act had invited criti­cism from both the left and the right of the political spectrum. BJP viewed it as Muslim appeasement by a Congress afraid of losing minority support in the General Election. It accused the Rajiv government of resorting to a separate Muslim personal code to accord outright preferential treatment and demanded the enactment of UCC. Leftwing organisations, such as the All India Democratic Women’s Association (AIDWA), led protests by Muslim women upset with the government for depriving them of divorce and maintenance rights they had shared with Hindus. The raging controversy led to Arif Mohammad Khan, minister in the Rajiv Gandhi Cabinet, resigning and liberals and progressive thinkers decrying the move as a “cynical manipulation of reli­gion for political ends”. Lawyer and former Union Law Minister Ram Jethmalani called out the Congress government’s act for what it was: “a retrogressive obscurantism for short term minor­ity populism.” Critics also pointed out that while divorce came under personal law, maintenance did not and Muslim women could only be excluded at the cost of discriminating against them.

In 1986, progressives vehemently supported gender justice be­ing extended to Muslim women, too. Most were horrified when the Rajiv Gandhi government did a U-turn despite its massive ma­jority in Lok Sabha and gave in to the pressure from the Muslim clergy to enact a law to reverse the court’s order. That Act fortified the anti-women character of the Shariat Act of 1937.

IRONICALLY, IN THE current context, it is the same group of liberals, self-anointed progressives and leftists who have stymied the UCC issue on every occasion it took centrestage, even as an idea. There is the usual uproar, fol­lowed by familiar accusations of majoritarianism, communal­ism and concern for Muslim women’s rights being weaponised to fulfil BJP’s political agenda. All this, when there is not even a hint about the details of the proposed law. Nor any indication as to when the government plans to bring in legislation to give effect to the wishes of the framers of the Constitution who saw a common civil code as an ideal for the young nation to aspire for. Scary scenarios are also being floated on how a UCC enacted by the Modi government would be a Hindutva-dominated code and could even lead to Adivasis starting their day with the recita­tion of the Hanuman Chalisa, how Christian missionary schools would have to enforce recitation of the Saraswati Vandana, and so on. Most of these are far from cogent arguments, focusing on the frivolous. They are crude attempts to whip up sentiments that make it difficult to countenance a UCC that redresses the inequalities in personal laws.

The same progressives who were repulsed by the Rajiv Gandhi government’s regressive law are now part of a phalanx deployed to counter any suggestion on a fresh look at the personal laws of all faiths. In the mid-1980s, AIMPLB had backed Shah Bano’s husband, even earning the ire of the court. AIMPLB had asserted that the judgment in the Shah Bano case was a threat to “Milli Tashakkhus”, a separate and distinct community identity. Today, this same argument of a distinct community identity being pro­tected under Muslim Personal Law is being put forward by the so-called liberals to make a case for not enacting UCC. The argu­ment of protecting diversity by retaining personal laws instead of steamrolling all communities into one indistinguishable bloc is another such argument. But the intent behind these arguments is the same as that of the Deobandis and should be nipped in the bud before they succeed in capturing the imagination of the ordinary citizen, including Muslims. The focus should remain firmly on gender justice on key issues concerning Muslim women—mar­riage, divorce, inheritance, succession, custody and adoption.

Who could possibly have a quarrel with this basic premise? But even the indignity of triple talaq did not stop its critics from opposing the government’s move to ban it. In this case, they can marshal seemingly weightier arguments on the gloss of diversity and pluralism and the fear of majoritarianism, etc. But peeling away these arguments exposes the determination of the Muslim male and the Muslim elite to hold on to the privileges they have enjoyed under the law that exists. The fundamental issue under­lying UCC is, and remains, equality and gender justice, fair play and equal application of law to citizens of all faiths and gender. The focus should remain there. It is unlikely to be an easy battle. The Muslim elite, in cahoots with the Muslim clergy, succeeded in pushing back any suggestion of amending the Shariat Act. In independent India, there was generous support for their veto. S Gopal points out: “Nehru urged incessantly the importance of generous treatment of the minorities so that they would feel that they were Indians, and be completely at home.” This is the very attitude that the Rashtriya Swayamsevak Sangh (RSS) would later describe as pseudo-secularism. This time, too, this conglom­erate of the elite Muslim and the clergy and organisations like Jamiat Ulema-e-Hind, AIMPLB and others are busy building up a frenzy against UCC. Stalls have been set up near mosques where people are exhorted to take the pledge to oppose UCC for the sake of Islam—something that reminds one of the modus operandi used in 1986 at the time of Shah Bano agitation. Liberals—the hardliners’ useful idiots—are lending their voice and support by organising seminars on diversity, plurality, inclusivity, etc.

That doesn’t take away from the fact that the task ahead is quite complex. Achieving it is going to be difficult even if people agree that it is desirable. But a start has to be made and the environ­ment is conducive now to take on the hardliners. Experts have suggested, for instance, that no matter what marriage customs are followed in different faiths, there should be compulsory registra­tion of all marriages, births, deaths, etc and such registration be mandatory for applying for government jobs. Another key sug­gestion is that a start be made by banning polygamy across faiths and ensuring that the minimum age for marriage is uniform for all communities. Maintenance for all divorced women could be guaranteed across faiths, including inter-faith marriages.

The benefits of these measures would be so manifest and so secular in nature that most would find it difficult to oppose them, as in the case of banning triple talaq. Even political parties that oppose the government are not promising to bring it back. This would create a constituency for bolder measures. The govern­ment will also be torpedoing the resistance based on fears of Islam being threatened. The very credibility of those who stoke the fire of fear would be questioned, making it difficult to pit the masses against their own good.

About The Author

PR Ramesh