Is Uniform Civil Code Really Contentious?
What is Uniform Civil Code (UCC)? Should anyone be worried about it being implemented in India? Should Hindus, Muslims or the Christians or any one else be worried about it? This has been debated for over a hundred years in the country. One cannot deny that it is an important issue for the ruling Bharatiya Janata Party (BJP) though one may ask why? On the other hand, one may ask why at all it must be as contentious as one makes it out to be?
UCC refers to a common set of laws governing personal matters such as marriage, divorce, adoption, inheritance and succession. Are these not important to every human being irrespective of the religion followed? For example, why should any woman accept a deprivation of her inheritance or succession rights that are otherwise available to other men and women living on the same land? Should a woman accept a marriage or divorce differently only because the religion demands so? Should men of different religions have different yardstick by which their morals are judged only because they practice a different faith? Are customs and religious practices being confused with the rights allowed to the citizens of the country? Let’s look a bit more closely and more impassionedly the UCC.
Three provisions in law are important as are three legal cases while we discuss UCC. First the provisions in law. Article 14 of the Constitution of India which provides for equality before the law or equal protection of the laws within the territory of India, states: "The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India."
Article 44 of the Constitution, lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India. That this provision was made a part of our constitution must be seen in the light of gross discrimination against vulnerable groups and probably as harmonising diverse cultural groups across the country. That it is not even debated for the past 75 years must be a travesty of Justise.
The Article 7 of the Universal Declaration of Human Rights (UDHR) states: "All are equal before the law and are entitled without any discrimination to equal protection of the law".
Now for the three legal cases: Two are done and dusted and one is unfolding. Firstly, any subjugation is bad. If it is men subjugating women and children to do their bidding then it is doubly bad. "Triple talaq", that allowed a husband to divorce his wife by repeating the word "talaq" thrice, is a case in point. That the Supreme Court declared the practice unconstitutional in 2017 proved a great relief and boon to Muslim women. However, this will be a real boon only when the inheritance laws too are amended.
Secondly, the Shah Banu case, a controversial maintenance lawsuit in which the Supreme Court favoured maintenance to the aggrieved divorced Muslim woman. The decision should have been celebrated. Unfortunately, the then government enacted a law limiting the right to maintenance for the period of 90 days of ‘iddat’ after the divorce. This effectively shifted the onus of maintaining her to her relatives or the Waqf Board from the husband. Why should women suffer for the greed of their men? Polygamy is equally bad. That it is still practised among some communities must be seen as a crime on woman. In a larger context, the ease of approaching a court for justice must be made available to women, children and all oppressed.
Thirdly, speaking about women empowerment and equal rights one also must be alive to the changing environment. Whereas a headscarf to cover the head and hair is Hijab, a burka or niqab, covers the face as well. The hijab stands for modesty in Islam. However, it also segregates and separates the Muslim women from others. Whereas it is compulsory in Afghanistan, Saudi Arabia, and Iran, it is banned in France and Belgium. At least 16 countries that include China, Morocco, Sri Lanka and Denmark, have banned Burqa.
Having looked at the articles of the constitution and the cases in print, are we not, as citizens of this country that gained independence 75 years ago, mature enough to debate and accept UCC as a part of our social existence? Even as the debate on this may go on, what exactly are the Hindu laws, the Muslim Laws and the Christianity laws in the main and how does one perceive persecution and inequality among various human beings irrespective of gender?
In all fairness, almost all personal laws apply to inheritance, succession, marriage, divorce, adoption, co-parenting, guardianship, obligations of sons to pay their father’s debts, the partition of family property, maintenance, charitable donations, gifts, and pre-emption. However, the differences arise in their detailing and interpretation.
The Hindu code bill, a legacy of the British, was adopted in 1956 as the Hindu Succession Act to codify the law that relates to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. The Act essentially gave women greater property rights, and ownership in their father's estate. An amendment to this Act in the year 2005 saw the same share allotted to a daughter as is allotted to a son. This is as it should be, for are not men and women equal at least in the context of being the children of the same parents?
Whereas the Hindu personal laws are based on religious texts like the Vedas, Upanishads, Geeta and various other Hindu scriptures and are rooted in “Dharma”, the Muslim personal laws are based on the Shariat Application Act, 1937, the Christian Personal laws are either based on the Mosaic Law and the ten commandments, of the Old Testament, or on the canon law in the Catholic, Anglican, and Orthodox churches, they all refer to the same practices that define living in a society.
UCC is expected to simplify laws that are currently interpreted through various religious beliefs. Why should anyone object if the current complex laws rooted in patriarchy are sought to be implemented equally in favour of men and women, children and the oppressed? Are we not living in the 21st century when we have changed and adopted several practices that seemingly are in conflict with our religious practices?
Be all that as it may, we must encourage healthy debate on UCC both among the intelligent and the practitioners as to what its provisions must be. Is the cause not noble enough to engage all concerned?
Admittedly the Hindus may lose benefits that accrue due to a Hindu Undivided Family if UCC were to be implemented. There are however, any number of positives that outweigh the negatives. Divorce, adoption of children of any religion, would all be wonderful reforms. Above all else, why should any practice be above what is provided by the Indian constitution?
If a UCC can bring restitution and repentance within society, why oppose it? Can the BJP, fresh from a thumping victory in 4 of the States that went to poll recently and tipped to be there, in the government for the next term as well, set the ball in motion, as a precursor to its implementation? That in a sense, will be a service to its own manifesto, even as it will be another master stroke after ‘Triple Talaq’, for this time, the beneficiaries will be all women, irrespective of the religion they may follow.
Former Chairman, AICTE and Adj Prof. NIAS
