Piecemeal reforms the way for Uniform Civil Code

Since Independence, the debate for a common civil code has continued, but there has been little headway. Forcing reform will only be counterproductive

The Uniform Civil Code (UCC) debate has taken centre stage again after the Uttarakhand Chief Minister promised to constitute a committee of experts to introduce the law in the state. This move is a welcome one at the state level as it proves that a plurality of laws is possible. Such state-enacted laws do not apply throughout the territory of India as is required under Article 44 as no state has jurisdiction beyond its boundaries. After all, personal laws are on the concurrent list and states can have different laws.

So far, the Supreme Court, rather than the BJP government has been flagging the absence of UCC time and again.

There are well-defined positions on this sensitive issue. The Hindu right-wing and feminists mostly favour the UCC and Muslim conservatives generally oppose it. In the din of the debate, saner voices are often not heard. No one seems interested in looking at the problem rationally, logically and pragmatically.

In the Constituent Assembly, too, there was a division on mentioning the uniform civil code in the chapter containing citizens' fundamental rights. The sub-committee that discussed fundamental rights was so sharply divided that the matter was only settled by a vote. With a close five to four majority, the sub-committee held that the provision was outside the scope of fundamental rights.

These debates help in interpreting the provisions of the Constitution through the lens of the framers' intentions.

Some Muslim members of the Constituent Assembly sought to immunise Muslim personal law from state regulation. Mohammed Ismail, for example, said that a secular state should not interfere with the personal law of the people. This, he said, was part of their faith, culture and way of life. He claimed that a few European countries, including Yugoslavia, provided protection to Muslim family law and personal status.

Naziruddin Ahmad argued that the abrogation of a personal law should not be treated as the regulation of secular affairs or as a measure of social welfare and reform. He pointed out that even the British, who enacted uniform civil and criminal codes, did not scrap personal laws.

Pocker Sahib defended personal law with the argument that he had received representations from various outfits, including Hindu organisations, that characterised the common civil code as tyrannical. And Hussain Imam wondered whether there could be uniformity of personal law in a diverse country like India.

But there was opposition as well. K M Munshi, Alladi Krishna Swami Iyer and B R Ambedkar responded to reservations against the common civil code. Alladi mocked their arguments, saying that the Hindus alone were willing to adjust themselves to changing circumstances.

But Munshi objected, “There are many Hindus who do not like a uniform civil code.” He reasoned that divorcing “religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession,” was necessary.

The enactment of the civil code, he said, would fall under the purview of Article 25(2), which empowers the state to regulate secular affairs surrounding religion and to enact measures of social welfare and reform, it would not violate religious freedom guaranteed in Article 25.

Furthering the discourse that favoured a uniform civil code, Ambedkar, the chairman of the Constitutional drafting committee emphasised that in a secular state, religion should not be allowed to govern all human activities. He reasoned that personal laws stand separate from religion, that the state had already enacted laws to codify or amend Muslim law and that not all Indian Muslims were governed by Muslim law.

On the floor of the assembly, Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt. If a government acts thus (imposing a common civil code), such a government would be insane in my opinion.”

He clarified, “Article 35 (as it was in the draft constitution) merely proposes that the state shall endeavour to secure a civil code for the citizens of the country. It does not say that after the code is framed, the state shall enforce it upon all citizens merely because they are citizens.”

Close to six decades have passed but the debate remains as relevant now as it was then.

Does the replacement or the reform of Muslim personal law violate the religious and cultural rights of Muslims? Article 25 (1) guarantees the right to profess, practice and propagate religion, subject to the limitations specified in that article. A Muslim who wants to marry multiple times or to divorce his wife arbitrarily is engaged neither in professing, practising nor propagating his religion. He cannot, therefore, complain that the enactment of the code would entail the denial of the right to profess, practice or propagate religion if the UCC imposes monogamy.

Three arguments stand in favour of enacting the uniform civil code — that the code might lead to national integration and draw minorities into the mainstream, it might help in maintaining communal harmony and in uplifting the status of women.

Vague ideas

However, terms like ‘national integration’ and ‘mainstream’ are vague and it seems as though no one intends to define them. On the contrary, if the cherished identity of each community fades away into some imaginary national mainstream in the currents of push-button uniform laws, will this lead to national integration or disintegration?

The point that is often missed in this debate is that we have already reformed Hindu laws. Has it resulted in the empowerment of Hindu women? How many Hindu women get a share in hereditary property? This is a lesson that normative changes in law do not often bring about the necessary social reform.

Nevertheless, the directive principles are positive obligations of the state. What has the government of India done so far in this regard? Why have no expert committees like the Hindu Law Reforms Committee of 1941 been constituted for Muslim law? Why is there no blueprint for UCC?

In the absence of a blueprint, people who are generally unaware of a common civil code will continue to be misguided by fundamentalists. Some may be led to believe that the UCC would lead to uniform ceremonies after death. Without clear action, a conducive environment for the UCC can never be created.

It is also disgusting that while the directive principles of UCC and cow slaughter receive so much attention, no one bothers to talk about the lack of focus on the directive principles of other issues that are far more important. Why are the issues of concentration of wealth, distribution of national resources for common good, the health of workers and nutritional levels not raised? What about the right to work and living wages? Are these not issues that deserve attention?

On the other hand, the Muslim law has been reformed in several countries. Why then do Muslims oppose law reforms in India? The answer, perhaps, lies in the minority psyche, which is universal. The law represents the question of their identity.

To achieve the Uniform Civil Code, it must be established that the law would do nothing to hurt their identity. Minorities must be persuaded to develop faith in the government, they must have a fair share in the power structures of the state. Genocidal calls that echo in the so-called dharm sansads must stop. Acceptance for the UCC will come easily if the government’s steps don’t seem threatening to minorities.

Amendment to a community’s personal law with the intention of bringing about progress is welcome but to tinker with the enactment with the sole purpose of introducing ‘uniformity’ is entirely different.

The former may be an act of reform while the latter would be arbitrary action that can attract the disapproval of the community. Just a code is far more important than a uniform code as legal pluralism is considered a boon, not a bane. The better course would be to bring about piecemeal reforms.

After all, as the eminent jurist Duncan M Derrett once said, “the best way to reform Mohammadan law is not to reform it at all. Let its inconvenient and archaic feature wither away. Once it is accepted that this is the policy, it will wither away fast enough. If there is a frontal attack on personal law, it will survive with a tenacity it has been unable to show in countries where the majority of the population are and always have been Muslims.”