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Universal (Uniform) Civil Code vis-a-vis Human Dignity & Where does the religion come in!?

Some months ago there was this brain wave, that was creating eddies inside me and suddenly chanced on a sentence and it crystallized. Spoke to lot of common friends to promote a CENTRE FOR CONVERSATION WITHOUT CONFRONTATION (CCC) with limited participants to have debate on issues concerning just about anybody and everybody. The whole concept was positively welcomed with “it’s a very unique idea”, said a professor of NITK. The qualification for participation was “ONLY AN OPEN MIND”. Obviously it meant no mental baggage to be carried to the debate. Spoke to many and even uploaded on FaceBook. Except some pleasant responses and some skepticism from negative minds, nothing happened. Back to square one. All dressed up, but nowhere to go. Thus, the UCC among many other issues, remained outside the CCC, the proposed forum, to be debated.

Human beings all over the world are born free, but as we grow, we tie ourselves into knots of myriad kinds, and submit ourselves into dogmatic practices within the group to which we belong. Living within the boundaries gives us a certain sense of protection and security and many compromise their position to accept the practices which could be otherwise unacceptable in an open and free society. There are people all over the world, who despise freedom. In every society, there is an element of male chauvinism. Of course in European societies, the scourge of male dominance is less, but in third world countries having mostly Islamic faithfuls and Hindus there is certainly a strong presence of male dominance. Because of this male dominance, the woman has remained subjugated in such societies. It is a global phenomenon. But western society has certainly improved its record of human rights in respect of women. The same cannot be said of other societies. Of course, in the Indian context, religion plays an important role, so is the case in many other countries of Africa, Middle East and Far East. These religions or more importantly those who are at the helm of religious authority, especially clergy have encouraged certain dogmatic practices since donkey years and it has continued. These practices, somehow, has encouraged and established male dominance, and it has stayed put. Of course, these practices managed some theological sanctions, due to which, women remained, kind of chained. It is also true that a vast section of women did not protest and have accepted the male dominance and their prescriptions. This ensured some kind of a security, which was however, not guaranteed. So despite total acceptance of male dominance, there was no guarantee that these women will remain protected. Yes, despite accepting the male dominance, especially among Muslims, women remain exposed to, triple talaq, polygamy and nikah halala. All three situations have reduced women, like it or not, to mere pawns. They could do just nothing about it. Until one day, a women’s group decided- enough is enough.

Long ago, Martin Luther King, a U.S. citizen, had given a clarion call to Americans of African origin to fight for their honour like everybody else in the United States of America, “Our life begins to end the day, we become silent about the things that matter”. Indeed that is the truth, like that Arab proverb “If you cannot fight for your rights, you only deserve to be a slave”. This too was the ringing truth.

For far too long, women in India had accepted the dominance and the resultant atrocity of man, as husband, as father, as brother, as uncle or whatever. In an evolving world, this had to change. And the change came calling. Noorjehan Fiaz and Zakir Soman, under the banner of Bharatiya Muslim Mahila Andholan (BMMA) went to the court challenging triple talaq, nikah halala and polygamy among Muslims. Seized of the matter, Supreme Court asked the central government for its clear stand on these issues raised by BMMA.

However it should be noted that, it was in 1985, Apex Court first directed the parliament to bring in UCC, after the infamous Shah Bano case. Again 2015, Apex Court asserted the need for UCC. “This cannot be accepted; otherwise every religion will say it has a right to decide issues as a matter of its personal law. We disagree. It has to be done through a decree of court.” 

In the light of the principle of gender justice and overriding principles of non-discrimination, dignity and equality, the centre urged the apex court to knock out these abhorrent practices of triple talaq, nikah halala and polygamy among Muslims. The government contended that these practices had nothing to do, rather, they were not integral to the practice of Islam or essential religious practices, while citing the extensive reforms that have taken place in countries where Islam is the state religion, like Pakistan, Bangladesh, Afghanistan, Morocco, Iran, Egypt, Indonesia, Turkey, Tunisia, besides our neighbour, Sri Lanka a Buddhist Country.

The centre’s affidavit strongly urged that ‘Even theocratic states have undergone reform in this area of the law and therefore in a secular republic like India, there is no reason to deny women their rights available under the constitution”. In a development post apex court intervention, the central government has asked the Law Commission to invite public opinion on the adoptability of UCC in India in accordance with the constitution and the Directive Principles of State Policy.

Olav Albuquerque, a practicing lawyer from Mumbai, writes “Despite the preamble of the constitution proclaiming ‘India is a secular state and justice is guaranteed to all,’ Muslim women have never been equal to their men -on the spacious ground that this law was ordained by Allah and is the most perfect of laws for all time to come”.

But what does the All India Muslim Personal Law Board (AIMPLB), the self appointed custodian of Muslim interest, thinks about this latest development?

Not only AIMPLB, but all those outfits who think they are the protectors of Muslim interest, are deeply unhappy about the Supreme Court as well as Central government intervention. 

“Muslim red flag Uniform Civil Code” was a report from New Delhi, attributing to AIMPLB, accusing the government of waging an internal ‘war’ against the community. It filed an affidavit vehemently opposing the scrutiny of the practices of triple talaq, nikah halala and polygamy by the Supreme Court saying personal laws cannot be challenged on the ground that they violate fundamental rights like gender equity. Affidavit states “If the husband does not at all want to live with wife, legal compulsions of time consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive”. This clearly shows that, if husband cannot get rid of his wife instantly, he can murder her. This is an exhibition of jungle criminal mindset like Taliban, with no respect for the right and life of his wife. The affidavit is a clear reflection of their contempt for social reform. They are clearly caught in a time warp.

Jamaat-e-Islami Hind, was another outfit that came out strongly against the government stand and stated that ‘it will not accept any interference in their personal laws since it will be an infringement of their fundamental rights.’

Ever since, the Supreme Court took up cudgels on behalf of BMMA and the affidavit by the central government and the circulation of questionnaire by the Law Commission, there has been plethora of outfits from different parts of India issuing statements opposing any judicial or executive intervention in their personal laws. ‘Muslim personal laws cannot be re-written in the name of social reform’, was the gist of all these statements.

The entire opposition is based on the faulty premise that these judicial or executive proposals are an attack on Islam. This is a huge hogwash. The issue is fundamentally related to the rights of women and denial of equity and equality enshrined in the constitution. The constitution is applicable to all pari passu. The apex court is seized of the issue to have a clear stand on women’s rights across the religious divide. India is a secular democracy and all are equal before law. This is so, across the multi religious spectrum of India. Women in all religious groups are denied of some rights or the other. In some it is more regimented and in some it is less regimented.

Since India is a male dominated society, the man, as father, brother, husband, uncle or whatever, has always suppressed woman and denied her rights in property, in pursuing education, career advancement or alimony in cases of divorce and there could be so many forms of denials. The idea of Universal Civil Code, has to be seen in this prism. Women should be equal to man in all respects-both in treatment and entitlement. Nothing whatever should influence the equity in precept or in practice.

Will any religion, in its right sense, deny its female practitioners their rights and aspirations only because of their gender?

Of course, there are many Muslim intellectuals who, of late, ever since the Apex Court entertained the writ of BMMA, have been issuing statements justifying reforms in the practices of Muslims in India. Surprisingly, joining them is Mr. Veerappa Moily, a former Union Law Minister and a senior Congress leader. Print media carried his observation, sometime this October “Instead of waiting for a public debate and waiting for a law to tell us what should be done, it is high time our Muslim brothers and sisters thought of reforming themselves, so that the axe of law will not fall on them”. He was generally commenting on triple talaq. Equally surprisingly, none among the many Muslim outfits have reacted to Mr. Moily’s observation which was nationally published.

Political divide is another serious issue that needs to be tackled if Universal Civil Code is to be adopted. Most political parties are opposed to it, merely to appease the influential section of Muslim leadership. As such the leader of the present ruling dispensation in the centre, BJP, is the only party which is pursuing the issue of UCC. It may be, as other political parties allege, BJP too is having its own agenda. But it was the same NDA led by BJP which amended the divorce laws governing Christians which the church has accepted and supported. Left parties always supported UCC, but they don’t want to give credit to BJP and therefore are opposed to UCC this time round. But purely on the crucible of equity, equality and justice, UCC is the need of the hour. All women’s groups should unite to force the issue in the name of women’s right and their human dignity.

Going back in time, it was the Congress party, which was the ruling party in the constituent assembly, which had originally envisaged a common civil code for all Indians. Romila Thapar, the noted historian has confirmed that ‘Nehru, India’s first Prime Minister, supported the UCC for all Indians irrespective of religion’. She was speaking at a Symposium in New Delhi “Nehru & To-day’s India” organized by the University of Cambridge, sometime in Feb 2015. But it was the same Congress party led by Nehru’s grandson and the then Prime Minister Rajeev Gandhi in May 1986, which enacted Muslim Women (Protection of Rights on Divorce) Act, annulling the Supreme Court’s April 23, 1985 judgement in the infamous Shah Bano case involving her husband Mohd. Ahmed Khan. Supreme Court had ruled that section 125 of Criminal Procedure Code which allowed the divorced wife to get a maintenance amount from her husband- applied to Muslims as well, as there was no conflict between the provisions of section 125 and those of the Muslim Personal Law. According to Bhavdeep Kang, a columnist from Mumbai, ‘Muslim clerics bullied the Congress regime into nullifying the Supreme Court judgement upholding a divorced Muslim woman’s right to maintenance’. 

The action of Rajeev Gandhi was widely condemned as retrograde. It was pure and simple, an act of appeasement by the then Congress government. Since he had the brute majority in the LokSabha with an unprecedented over 400 seats, he could do anything. He could have given a new face to India’s developmental paradigm, but failed even to keep his PM seat in the election that followed. However, it is also true that Dr. Manmohan Singh government had brought about changes in Hindu Succession Act to bring woman at par with man in inheritance.      

Then there are those, who feel, that there are still problems among Hindus as well. They too should be addressed and redressed, if there are any. Similarly among Christians and other religious groups should be open for debate and correction where needed. According to Olav Albuquerque, under Hindu Personal Law, divorce is granted on the ground that couple have been living separately for one year or more, while canon (general or Christian) law does not grant divorce at all except on the grounds of insanity and impotence. Even these should be suitably amended to come under UCC, he opines.

However, what is indeed a matter of disappointment and concern is the silence of liberals. They are not taking a position since it is the BJP, which is spear-heading the demand for U.C.C actively nudged by the Supreme Court.

Indeed personal law cannot practice & propagate discrimination; cannot allow a compromise with human dignity. Personal laws and practices can certainly deal with religions and its rituals, but cannot infringe rights of individuals. Rights and dignity of individuals is sacrosanct. Men across the socio-political spectrum of the country must be united to tell their women folk, don’t worry we are with you. It can surely lead to a new dawn of peace, stability and prosperity. Secular India would have truly arrived. 

J. Shriyan