Issues

Uniform civil code – a Muslim point of view

Uniform, or Common, Civil Code (UCC) is one of the 23 directive principles of the Indian Constitution. Article 44 of the Constitution says: “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” Unlike other directive principles, which are yet to be complied with, the demand for UCC with reference to the Constitution is made from time to time, especially by proponents of Hindu ultra-nationalism who find it a suitable stick to beat the Muslim community with. The issue is being hotly discussed these days due to the interest shown by the apex court and the BJP government at the Centre.

The demand for a uniform civil code in India was first put forward by women activists in the beginning of the twentieth century to safeguard women's rights, equality and secularism. This demand was supported by Jawaharlal Nehru in 1930 but he had to face opposition by senior Congress leaders like Vallabhbhai Patel and Rajendra Prasad.[1]

A long thread on the 1940's & 1950's Newspaper cartoons on Hindu Code Bill can be seen here: https://twitter.com/Advaidism/status/983255238437040131

The reason for this demand was the denial of women’s rights within the Hindu system. Till Independence in August 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. A major effort to reform Hindu laws was made by Dr BR Ambedkar when he piloted the Hindu Code Bill which legalized divorce, provided for monogamy and gave inheritance rights to daughters. But, due to intense opposition of the code being “anti-Hindu”, only a diluted version was passed after Nehru broke it in four different legislations[2], viz.:

  1. The Hindu Marriage Act,
  2. Succession Act,
  3. Minority and Guardianship Act, and
  4. Adoptions and Maintenance Act.

The issue of UCC was discussed at length in the Constituent Assembly but no consensus was reached. The suggestion to include a provision for a common civil code in the list of Fundamental Rights was made by M.R. Masani for the first time at the meeting of the Fundamental Rights Sub-Committee of the Constituent Assembly on 28 March, 1947. After heated debate, the proposal was voted out. The idea was pressed further and his forceful advocacy carried the day. The Sub-committee this time recommended that it may be included in the Directive Principles – the non-justiciable and non-enforceable section of the Constitution.[3] Thus the proponents of UCC had to accept the compromise of it being added to the Directive Principles because of heavy opposition.

The Indian Parliament discussed the report of the Hindu law committee during the 1948–1951 and 1951–1954 sessions. It was found that the orthodox Hindu laws were pertaining only to a specific school and tradition because monogamy, divorce and denial of a widow's right to remarry and inherit property were present in the Shashtras. Law Minister Ambedkar recommended the adoption of a uniform civil code. He had researched religious texts and considered the Hindu society structure flawed. According to him, only law reforms could save it and the Hindu Code Bill was this opportunity. He faced severe criticism from the opposition though Nehru supported these reforms.[4]

The Minorities Sub-committee of the Constituent Assembly, which examined the report of the Fundamental Rights Sub-committee, was dissatisfied with the wordings of the Article as proposed. It, therefore, observed in its Interim Report of 19 April, 1947, that the Article be re-drafted to make it clear that while a UCC for all citizens was eminently desirable, its application should be made on an entirely voluntary basis.[5]

Winding up the debateon 2 December 1948in the Constituent Assembly on the subject, Dr Ambedkar said,

“All that the State is claiming in this matter is a power to legislate. There is no obligation upon the State to do away with personal laws. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India … Sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. No Government can exercise its powers in such manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad government if it did so”.[6]

The idea of a uniform civil code was the brain-child of a single individual which was adopted and supported by K.M. Munshi and Sir A. Krishnaswamy Iyer. It was, however, equally strongly opposed by the members belonging to the minority community. It took its place amongst the Directive Principles on the assurance of Dr. Ambedkar quoted above.

Jawaharlal Nehru, the first Prime Minister of India, believed that “It is obvious that no change can be imposed from the top. It will thus become the duty of the Government of the day to try to educate public opinion so as to make it accept the changes proposed…and that any change of this type will only apply to a community when the community itself accepts it”.[7]

Law Minister under the previous UPA government, Veerappa Moily, said UCC was not implementable. “It is impossible to implement it in a multi-cultural, multi-racial and multi-dimensional country like India. And anybody who thinks it is a communal agenda, then they are wrong. This cannot be a Hindu-vs-Islam or Islam-vs-Hindu. Multiple practices are available… Any number of tribals we have in the country, they have their own personal laws. Many of the backward classes… for example, some of the families, in fact a majority of the families in my district that is Dakshina Kannada, and Udupi and also in coastal Kerala, we have the marumakkathayam (matrilineal inheritance) practice… through a uniform civil code, you cannot bulldoze them,” he said, adding that the UCC cannot just be viewed in the context of Muslims. “This is a question of practices of many communities, hundreds of communities in India. So when you address uniform civil law, you cannot just limit it only to Muslims. Or the Hindus only…Within Hindus, there are many practices…”[8]

Interestingly, a most influential Hindutva ideologue, Shri Guru Golwalkar, the late Sarsangchalak of the RSS, was in agreement with these views. In an interview with the RSS mouthpiece Organiser in 1972, Shri Golwalkar met in advance all the arguments later to be used by the Supreme Court which had said “A Common Civil Code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”:

Q.You don’t think that a Uniform Civil Code is necessary for promoting the feeling of Nationalism?

A.I don’t. This might surprise you or many others. But this is my opinion. I must speak the truth as I see it.

Q.Don’t you think that uniformity within the nation would promote national unity?

A.Not necessarily. India has always had infinite variety. And yet, for long stretches of time, we were a very strong and united nation. For unity, we need harmony, not uniformity.”[9]

During recent decades, the UCC issue has been raised from time to time mostly by Sangh Parivar, Leftist parties and feminists, especially since the Shah Bano controversy in 1985,[10] which had led to the passage of the “Muslim Women's (Protection of Rights on Divorce) Bill” in 1986 making Section 125 of the Criminal Procedure Code inapplicable to Muslim women. Ever since the Shah Bano case became a nationwide political issue and a widely debated controversy. The BJP was the first party in the country to promise UCC if elected into power.[11]

Article 44 of the Constitution talks of securing a Uniform Civil Code throughout the territories of India. But how can Parliament enact, even if it wanted to, a Code which cannot apply to the territories of Jammu & Kashmir, Nagaland and Mizoram? Will this not be against a clear provision of the Constitution? Will this not be a clear discrimination between these three states and the rest of India? Can such a discriminatory code be called a UCC? On the other hand, can the Kashmiris, Nagas and Mizos be compelled to adopt a Uniform Civil Code in the light of Articles 370, 371-A and 371-G of the Constitution?

The current UCC debate goes to October 2015, when the Supreme Court of India asserted the need of a UCC saying, "This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court".[12] The Muslim community asserted that the Muslim Personal Law is an issue of its religious and cultural identity protected by Articles 15 and 25 of the Constitution. Muslims believe that UCC is a back-door attempt to impose Hindu values on every Indian.

Of late as a result of the current debate about Triple Talaq[13], the UCC issue received further attention because of the present BJP-led Union government’s deep interest and open espousal of the UCC. This is the first time in independent India that the Central government has called for the abrogation of the Muslim Personal Law (MPL) and enactment of a UCC. Hitherto, Union governments in and outside Parliament had consistently reiterated that no changes will be made in the MPL unless the demand came form within the Muslim community. To thwart such interference, the community established a (private) All India Muslim Personal Law Board (AIMPLB) in 1972. The board has the representation of all Muslim sects in the country and enjoys a strong support of the community. This was demonstrated lately when AIMPLB presented a petition against UCC with 48.1 million signatures to the Law Commission of India on 13 April, 2017 rejecting any change in the MPL.[14]

MPL, as practiced in India, goes back to the early days of the British colonial rule in India after the demise of the Mughal State in 1857. Soon thereafter the Shariat-based Mughal laws were abolished but Muslims and other communities were allowed to practice their personal laws where both parties of a dispute belonged to the same religion. Even before 1857, the Lex Loci Report of October 1840, while emphasizing the importance and necessity of uniformity in the codification of Indian law relating to crimes, evidences and contract, recommended that personal laws of Hindus and Muslims should be kept outside such codification. Thereafter the British Queen’s 1859 Proclamation promised absolute non-interference in religious matters.[15]So while criminal laws were codified and became one for the whole country, personal laws continued to be governed by separate codes for different communities.

Shariat-related judgements of British courts were compiled by Dinshah Fardunji Mulla, a Parsi, in his book Principles of Mahomedan Law. It still remains to this day the main source of guidance for Indian courts on issues related MPL. The British colonial government gave this practice a legal cover by enacting Shariat Act in 1937 which provided that for a number of situations (including inheritance of personal property; marriage; dissolution of marriage through talaq, ila, zihar, li’an, khula’ or mubara’at; maintenance; mehr; guardianship; gifts; trust and wakfs) the rules of decision in cases where the parties are Muslim shall be Muslim personal law (Shariat). This Shariat Act still remains operative in India though some specific changes were made over the years like the Waqf Act enacted in 1995 and re-enacted in 2013.

The current Union government and media give an impression as if Muslims alone have their separate personal laws. The fact is that many religious and ethnic communities in India have their personal laws, like Sikhs, Christians, North-Eastern communities and tribes, adavasis, tribals, mountain people and even Hindus. According to the former Indian Law Minister  Veerappa Moily, there are between 200 to 300 personal laws operative in India. Even the Hindu community will not easily let go its personal laws as was seen in 1956 when small changes in the Hindu code were fiercely contested and the then President of India Dr. Rajinder Prasad willy-nilly signed the revised laws.

As of now, only the state of Goa has a common family law based on the erstwhile Portuguese civil law, which continued to be implemented after its annexation in 1961, thus being the only Indian state to have a uniform civil code. But even there, unlike Hindu and Christian women, Muslim women are facing many problems as a result.[16]

Moreover, the Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law. This Act provides a form of civil marriage to any citizen irrespective of religion. This law applies to all of India, except Jammu and Kashmir. In many respects, this act is almost identical to the Hindu Marriage Act of 1955. It allows even Muslims to marry under it. Under this act polygamy is illegal, and inheritance and succession are governed by the Indian Succession Act rather than the respective personal law. Divorce also is governed by the secular law, and maintenance of a divorced wife is decided along the lines set down in the civil law.[17]

Muslims’ point of view is that the community is content with its MPL and does not want any change in it. The AIMPLB, though initially against the abrogation of the Triple Talaq[18], has now under the pressure of the Supreme Court relented and agreed to appeal to the community to shun this bad practice which is considered an undesirable innovation (bid’at) in Islam as it is against the clear rules set for divorce by the Holy Qur’an (2:226-232; 65:1-7).

Another problem with UCC is that no one knows what it is, what provisions it will cover, how it will affect the existing laws of the various communities, including the laws of the majority community. Has anybody thought of consulting the Hindu community in this regard? Everybody seems to believe that the Uniform Civil Code will affect only Muslims and Christians. What will happen to the provision of the Hindu Undivided Family by the taxation laws of the country which are used by millions of Hindus to avoid taxes paid by non-Hindus. If such benefits are retained for the Hindu Undivided Family, can it still be called a UCC?

Muslims perceive that the issue of UCC, raised mainly by the Sangh Parivar, is only to tease the community as no one within the government or without has come up with a draft UCC. A representative meeting of Muslim community leaders in Mumbai in October 2016 said that the issue of UCC should not be discussed unless the government comes up with a draft.[19]

Another objection to the UCC is that its proponents are choosy about the directive principles of the Indian constitution. None of the directive principles have so far been complied with despite the fact that some of them are stated with much more stress than UCC. The directive principles of the Indian Constitution include:

Art. 47 (first part): The State shall regard among its primary dutiesto raise (i) the level of nutrition and (ii) the standard of living of the people and (iii) improve public health.

Art. 46: The State shall promote with special care(i) the educational and economic interests of the weaker sections of the people and (ii) protect them from social injustice and all forms of exploitation.

Art. 39: The State shall direct its policy towards securingthat (a) The citizens, men and women, equally, have the right to an adequate means of livelihood; (b) The ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) The operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.      

Art. 39A: The State shall secure(that) (i) Operation of the legal system promotes justice, on a basis of equal opportunity; (ii) Provide free legal aid, by suitable legislation or schemes or any other way; (iii) Ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.            

Art. 49: It shall be the obligation of the Stateto protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export.          

Art. 41: The State shall make provision (for securing)the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement.      

Art. 42:The State shall make provision (for securing) just and humane conditions of work and for maternity relief.            

Art. 40:The State shall take steps to organise village panchayats for self-government.      

Art. 43 A:The State shall take steps to secure the participation of workers in the management of industry.            

Art. 48 (second part): The State shall take steps to preserve and improve the breeds, and prohibit the slaughter of cows and calves and other milch and draught cattle.      

Art. 50:The State shall take steps to separate the judiciary from the executive in the public services of the State.  

Art. 38(1):The State shall strive to secure and protect a social order in which justice – social, economic and political – shall inform all the institutions of the national life.            

Art. 38(2) (first part): The State shall strive to minimise the inequalities in income.           

Art. 38(2) (second part): The State shall endeavor to eliminate inequalities in status, facilities and opportunities.    

Art. 43: The State shall endeavor to secure to workers a living wage, decent standard of life and leisure and, in particular, promote cottage industries in rural areas.      

Art. 44: The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.    

Art. 45: The State shall endeavor to provide for free and compulsory education for all children until they complete the age of fourteen years.   

Art. 47 (second part):The State shall endeavor to bring about prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health.         

Art. 48: The State shall endeavor to organise agriculture and animal husbandry on modern and scientific lines.       

Art. 48A: The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the county.       

Art. 51: The State shall endeavor to provide international peace and security; maintain just and honourable relations between nations; foster respect for international law and treaty obligations; and encourage settlement of international disputes by arbitration.[20]

It is clear that all the above directive principles remain either fully ignored or very partially fulfilled although most of them have been mentioned in the Constitution with greater emphasis than that given to the UCC. In such a situation, only partisan politics and the urge to railroad certain sections of society are driving the proponents of UCC to impose it on an unwilling majority.

The country's diversity, multiple religious laws and ethnic traditions, which not only differ sect-wise but also by community, caste and region, will not allow the application of a UCC. Religious minorities look at the issue as part of identity politics and a matter of religious freedom. The Sangh Parivar and its political wing, the BJP, exploit this issue to gain Hindu electoral support.

*The writer has a PhD in Islamic Studies from Manchester Uni. He was editor of The Milli Gazette during 2000-2016 and served for three terms as the President of the All India Muslim Majlis-e Mushawarat, the umbrella body of Indian Muslim organizations. Currently, he is Chairman, Delhi Minorities Commission. He may be contacted at zik(at)zik.in

 


[1]Chavan, Nandini; Kidwai, Qutub Jehan,Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India Publications, 2006, p 87.

[2 ]Rina Williams, Postcolonial Politics and Personal Laws, 2006, Oxford University Press, New Delhi, p. 106.

[3]Moosa Raza, “Uniform Civil Code,” The Milli Gazette, 1-15 November 2015

[4]Sarkar, Sumit; Sarkar, Tanika, Women and Social Reform in Modern India: A Reader, Indiana University Press, 2008, page 486.

[5]Shiva Rao, Framing of India's Constitution, Vol. II, Select Documents, Tripathi (1969), Debate of 19 April 1947 (as cited in  Vasudha Dhagamwar, Towards the uniform civil code, Indian Law Institute, 1989, page 2).

[6]Constituent Assembly Debates, Vol. VII, 4 November 1948—8 January 1949: 779-780,www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-02.

[7]Sarvepalli Gopal (ed.), Jawaharlal Nehru: An anthology, Oxford University Press, 1980, page 255.

[8]Manoj C G, “His party cautious, Moily says triple talaq practice needs reform,” Indian Express, October 15, 2016 -- http://indianexpress.com/article/india/india-news-india/his-party-cautious-moily-says-triple-talaq-practice-needs-reform-3083512/-- accessed on 30-5-17.

[9]Organiser, 26 August, 1972 quoted in Moosa Raza, op. cit.

[10]It was about legality of maintenance to a Muslim divorcee beyond Iddat (three month waiting after divorce). As against Islamic Personal Law, Supreme Court had awarded life-long maintenance to Shah Bano, a divorcee. Muslim agitation forced the then union government headed by Rajiv Gandhi to enact a law to satisfy Muslim demands though legal loopholes allow courts even now to order maintenance to Muslim divorcees beyond Iddat.

[11]Chavan, Nandini; Kidwai, Qutub Jehan, Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code, Hope India Publications, Gurgaon, 2006, p. 16.

[12]Utkarsh Anand, "Uniform Civil Code: There’s total confusion, why can’t it be done, SC asks govt," Indian Express, October 13, 2015 -- http://indianexpress.com/article/india/india-news-india/uniform-civil-code-supreme-court-asks-govt-why-cant-it-be-done-tell-us-your-plan/-- accessed on 30-5-17.

[13]A Muslim husband’s spelling three (i.e., complete and final) divorce to his wife in one sitting.

[14]"Law commission handed over signatures of 4.81 cr people who are happy with Triple Talaq", Ummid.com, April 14, 2017 -- http://www.ummid.com/news/2017/April/14.04.2017/muslim-personal-law-board-meets-law-commission-on-triple-talaq.html-- accessed on 31-5-17

[15] Sarkar, Tanika, Hindu Wife, Hindu Nation: Community, Religion, and Cultural Nationalism, Hurst & Company, London, 2001, p. 199.

[16]See Nazrana Shaikh, “Uniform Civil Code in Goa? Hindus, Christians spared but difficulties for Muslims”, The Milli Gazette, April 2, 2017 -- http://www.milligazette.com/news/15495-uniform-civil-code-in-goa-hindus-christians-spared-but-difficulties-for-muslims

[17]The Special Marriage Act, 1954, See http://legislative.gov.in/actsofparliamentfromtheyear/special-marriage-act-1954

[18]Triple Talaq, or three divorce pronouncements by the husband, is practiced by Muslims, mainly illiterate as against 3-month procedure set by the Qur’an (2: 226-232). A recent study, based on a field survey, has shown that it is least practiced types of talaq in the Muslim community as in only 0.3 per cent of surveyed cases the divorce took place in the form of instant triple talaq: Abusaleh Shariff& Syed Khalid, “Unimportance of triple talaq,” Indian Express, May 29, 2017 --http://indianexpress.com/article/opinion/columns/unimportance-of-triple-talaq-supreme-court-muslim-law-4678304/-- accessed on 30-5-17

[19]"Let Govt. present Uniform Civil Code draft: Indian Muslim intellectuals and leaders," The Milli Gazette, Oct 18, 2016 -- http://www.milligazette.com/news/14838-let-govt-present-uniform-civil-code-draft-indian-muslim-intellectuals-and-leaders

[20]Based on a chart prepared by Dr Syed Zafar Mahmood as part of his response to the Law Commission of India on UCC, on 17 Nov 2016.

We hope you liked this report/article. The Milli Gazette is a free and independent readers-supported media organisation. To support it, please contribute generously. Click here or email us at sales@milligazette.com

blog comments powered by Disqus