Asking whether or not we need a Uniform Civil Code (UCC) is like asking if we need to give equitable justice to disadvantaged women, children and the oppressed in a democratic society professing to be secular. It doesn’t matter whether we are talking of the western model of secularism or the Indian world view of ‘sarva panth samabhav,’ treating all belief systems with equal respect.
The irony is that this debate is being supported or opposed without any draft of the UCC. There is a sense of alarm that it may be a new version of the Hindu Code Bill, which was imposed on Hindus without any opinions taken from Hindu leaders or authorities. The new UCC has to come with wider consultation with all the stakeholders. The basic urge of the UCC should be to make the law simple enough to provide speedy and equitable justice to all the people, without bias of religious beliefs.
If a UCC means Hindus losing benefits like Hindu Undivided Family or extending this benefit to other communities, so be it. If it means equal inheritance rights for women, contrary to different rules in different communities, it would be desirable. If UCC means easy divorce and equal rights for women to divorce, it is welcome. If UCC means easy adoption of children for families of any religion, it would be a great service to social well-being and the children’s future.
In a TV debate in October 2015, Father Shankar of Delhi Diocese said that though Catholics have their laws, they are clear that they must obey the laws of the land where they reside. He said Christians would have no problem with Uniform Civil Code.
Debate on the Uniform Civil Code or UCC is as old as the Indian Constitution. Intentions of the Constituent Assembly were clear – that UCC was desirable, hence it was inserted in Directive Principles. Courts of India have been prodding successive governments to bring in UCC. They raised this issue in 1985, 1995, 2015 and again in 2017 when giving their ruling in the Triple Talaq case. Now, Muslims have gone to courts asserting their right to wear hijab against uniforms prescribed by the schools. This, despite, four judgments in High Courts and Supreme Courts against this idea.
The issue has heated up again as it is a part of the manifesto of the ruling BJP, and due to sustained efforts by orthodox Muslim leaders who have time and again shown that for them, Sharia is above the Constitution.
Strong resistance to judgment in favour of Shah Bano’s maintenance by orthodoxy resulted in an amendment to the Constitution – the first step towards making the Constitution subservient to Sharia. Then came the CAA followed by a ban on Triple Talaq. In fact, even nullification of Article 370 was treated as anti-Muslim. Shah Bano’s case of maintenance for a poor and divorced old woman and Triple Talaq were not a matter of religion, but gender justice. The Citizenship (Amendment) Act or CAA was for the persecuted minorities outside India in its neighbourhood, it had nothing to do with any citizen living inside India.
Article 370, opposed by supposedly secular politicians, was not a repudiation of the “Two Nation Theory” first propounded by Sir Syed Ahmad Khan, the founder of Aligarh Muslim University; it was an acceptance of the theory that minorities were separate from the other Indians and needed special treatment. It led to a serious issue of central laws not reaching the common people of Jammu and Kashmir, creating uncertainty in the minds of the people of the state, which resulted in sustained disturbances in Jammu and Kashmir.
It gave birth to Article 35A, surreptitiously inserted into the Constitution without following due constitutional process, and which was highly discriminatory against women, Dalits, minorities like Gorkhas and a million refugees who landed up in Jammu and Kashmir from Sialkot as they were too poor to travel to Punjab. The result was denial of citizens’ rights, human rights to these groups numbering more than a million. But, the issue was treated as anti-minorities.
Resistance to reforms and basic suspicion about a democratic society by orthodox elements come from their belief that they are living in Dar-ul-Harb. This mindset needs to change. People who wished to have Dar-ul-Islam had migrated to Pakistan. Others wished to live in a secular democratic society. Directive Principles in the Indian Constitution state, “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” This was not implemented simply due to lack of political will. It was a grave mistake to not do what was needed to reinforce the idea of an egalitarian democratic society. The golden hour was lost.
From the authority of learned Muslim scholars like Sultan Shahin, I can say that Sharia is not a divine, God-given law. Codification of Sharia is based on Quran and Hadiths. Sharia had been a work in progress for nearly 100 years. The majority of these laws have not come from Quran and they reflect the traditions of Arabic societies of those times. It is not uniform across all sects of Muslims. It has been modified as per local culture in different countries. Most of the Islamic countries have outlawed many clauses in Sharia.
The way Muslim women have come out strongly against malpractices in the name of Sharia tells us that the urge for reforms is unstoppable now. We can see even in the Hijab debate that Muslim women are opposing orthodoxy within their own community. This is a welcome sign for our democracy. The intransigence of orthodox clergy and their habit of raising the bogey of religious freedom to force patriarchal attitude through unrepresentative bodies like All India Muslim Personal Law Board (AIMPLB) tell us that the legislative path is the best way to bring in UCC.
If we go by Indian ethos, respect for individual faiths is inherent in the Indian psyche. But it shouldn’t mean abandoning ‘Dharma’ in its pristine definition. Dharma holds society together through ethical rule of law, not religion. It means rule of law and principles of ethics are the same for all. This is why UCC also needs to be seen as the state treating all communities on par, in line with its Dharma.
Laws should be equal for all citizens irrespective of religion, caste or gender. In a secular democratic country, no religious law can be above Constitution. If we can have uniform criminal laws, then we should be ready to accept uniform civil laws. They don’t impinge upon one’s religion. Goa has had UCC for decades. No citizen of any community has had any problem with it. This shows that the opposition is political and not driven by the urge to provide justice to the citizens, especially weaker sections including women and the oppressed.
The miasma of civil laws has made the lives of people seeking justice very painful. There is an urgent need to demystify civil laws for common people to seek easy and fast justice, just as there is a need to simplify outdated criminal laws. What is the use of laws if they give justice to a poor Shah Bano in three decades or release an innocent person after 10-20 years in jail as undertrial? What is the use of laws that require a costly advocate to decipher them for a poor litigant and allow the cases to be dragged on for years breaking the willpower of the litigant rather than delivering justice?
A priori condition for UCC is that the State must have the will to enforce it on all citizens. If there are communities bent upon forcing their own beliefs over the Constitution, UCC will become counter-productive. It may end up only affecting law-abiding citizens while rogue elements may refuse to obey them and go scot-free. We can talk about UCC only if the state has the will to implement it. Uniform Civil Code needs to be discussed widely, away from religious rhetoric, and more as a way to provide equitable justice to the disadvantaged.
Ratan Sharda is a well-known author and columnist. He has written seven books on RSS and done his PhD on RSS. The views expressed in this article are those of the author and do not represent the stand of this publication.
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