By Seema Javed
18th October 2015
The Supreme Court has asked the Centre if it is willing to bring a Uniform Civil Code in the country. This is not the first time the apex court has come out in favour of a common civil code. It set the ball rolling in the Shah Bano case in 1985 and repeated its observation twice again on this key directive principle of state policy enshrined in our Constitution.
The ruling establishment could have used the window of opportunity to push for reforms in the Muslim personal laws, left untouched when the Hindu code bills were passed in the mid-1950s as a first step towards evolution of a common civil code.
Instead, the Rajiv Gandhi government buckled under pressure from a Muslim clergy and counteracted the court judgment by passing a law in Parliament to that effect.
This time the court’s directions have come at a time when the national polity seems to be highly polarised on community lines. This has left the Modi government in a catch-22 situation. While holding that a common code was “necessary for national integration”, Law Minister D V Sadananda Gowda said the issue required discussions with all stakeholders, including various personal law boards, and that evolving consensus and could take “some time”.
When the Britishers came to India, they faced a highly fragmented society in a state of flux. Adopting a policy of divide and rule, they never touched the religious beliefs of the natives. Except for rare intervention on issues such as sati and widow remarriage, they allowed different personal laws for different communities.
At the time of writing our Constitution, we were faced with a variety of laws based on bad religious interpretation and ideas of the 19th century. In Article 44 of the Constitution, our founding fathers wrote their dream of bringing the whole of India under a common civil code and putting an end to a hodgepodge of religious laws. The inclusion of a common civil code in the directive principles of the state policy was pushed by secularists such as Nehru and Ambedkar, the women’s rights groups and the Left parties when the Constituent Assembly adopted the Constitution. At that time, the Hindu parties were not ready to accept it. Now, when the BJP is ready to accept the Uniform Civil Code, the same elite secularists are branding it as fundamentalist and backward.
Unfortunately, while Nehru pushed for reform of the Hindu code through four landmark legislations in 1956—allowing divorce, alimony, equal inheritance to sons and daughters and adoption—he allowed other religions to keep the substantially anti-women 19th century laws.
After the Supreme Court’s recent prodding, the government is duty-bound to act on it. But given the prevailing political situation, it remains to be seen if a government perceived as anti-minorities by a section of society can push for such a law in Parliament, where it has failed to ensure passage of crucial legislation on economic reforms.
At a time when the rise of global Islamism in the form of al-Qaeda and ISIS poses a major challenge to the security of both the West and nations with substantial Muslim populations, an immediate and aggressive state intervention in Muslim personal laws can complicate the situation.
It is, however, time for progressive leaders of Muslim and other religious communities to ensure their archaic personal laws changed with the times. Already, advocacy groups of various religious communities are rooting for a Uniform Civil Code. A recent survey of over 5,000 Muslim women across 10 states reveals that a majority is against the practice of triple Talaq. Over 92 per cent of those surveyed wanted polygamy banned.
The government should start discussions with people of all shades of opinion on the subject. Today, there are small but important efforts to challenge and develop alternatives to Islamism from within. This new thinking, however, cannot achieve mainstream lift-off until a critical mass of Muslims address the ideological quagmire they face, and reject, re-interpret, and modernise traditional decrees and edicts. It is incumbent on thinking Muslims to bend the course of Muslim history in a more positive direction. firstname.lastname@example.org
Javed is an independent journalist and media consultant