Article 44 of our Constitution emphasises the need to enact Uniform Civil Code (UCC) in India. However, this has been perhaps the most contentious of all issues in the country. The opposition against the UCC is not based on progressive principles but on the flimsy grounds of protecting religious rights.
It is often construed that only the Muslim community is getting preferential treatment due to the lack of UCC. However, it is not valid. Many communities in India—including some tribal communities—have their personal laws. States such as Goa and Union Territories like Daman & Diu etc have their specific civil codes. The Hindu Code Bill itself has many exceptions that it can hardly be called a uniform code for Hindus.
The Constitution Draft Committee led by Dr BR Ambedkar and the prominent members of the committee like N Gopalaswami Ayyangar, KM Munshi, Alladi Krishnaswamy Iyer and M Ananthasayanam Ayyangar had strongly recommended the implementation of a UCC. At that time, the various personal laws of Hindus were so regressive that many considered Sharia a far more progressive document as far as gender parity was concerned.
The Hindu Code Bill liberated the women of the Hindu community from the shackles of conservatism, tradition and patriarchy to some extent, at least before the law. However, the government of that day succumbed to the pressures of the Muslim fundamentalists. Perhaps, they did not want to reopen the wounds of Partition and needed to reassure the minorities that the state would not forcefully implement a civil code superseding their religious codes.
What is ironic is that the British Government had implemented a Muslim personal code based on Shariat only in 1937. India has a long history of personal laws. Till then, different Muslim communities in India had different unique rules. There were prominent Muslim communities like Kutchi Memons who followed their law as per their tradition and not Shariat and remained Muslim. With the implementation of Muslim personal law, these minorities had to succumb to a uniform Muslim personal code.
Despite the recommendation from the Constitution Committee, the government decided to have a compromise solution and included the UCC in the directive principles of state policy in Article 44. There was dissent from MPs like Rajkumari Amrit Kaur and Hansa Mehta. They argued that India is kept back from advancing to a modern nationhood thanks to the existence of religion-based personal laws.
Since then, governments of the respective era never gathered the conviction to implement the UCC. When the courts prodded the government through the judgements like Shah Bano case, parliament passed regressive laws that catered to religious orthodoxy at the cost of fairness and freedom for women. Religious personal laws were written in a different era for societies with different sociopolitical and cultural realities. Irrespective of the religion considered, the religion-based personal laws are often highly discriminatory against women. These laws ensure their secondary status within the family.
They are designed for the women’s continued social and economic dependence on the male members of the family. If we were following outdated laws like that of Manu or other smritis, we would still be having child marriages, Sati, untouchability, caste discrimination, restrictive and discriminatory widowhood and a hundred other evils sanctioned by law. None of these social evils disappeared because the priests and orthodoxy decided to reform.
They were legislated by parliament or rulers and implemented with a will. Religion is a tool of power that a few men wield to rule over the silent majority. Though it is far from perfect, the Hindu Code Bill and the Constitution gave more dignity and equality to Hindu women than any ancient scriptures or laws. Why should Muslim or tribal women be denied this privilege for pleasing a few orthodox priests?
The Islamic countries across the world have done many reforms in Sharia law. Even a hyper-orthodox country like Saudi Arabia has changed many laws to reflect the modern reality. Pakistan has done more progressive reforms compared to the 1937 Muslim Personal Law (Shariat) Application Act that we follow here. The 1961 Muslim Family Law Ordinance of Pakistan makes it obligatory for a man who desires to take a second wife to obtain written permission from a government-appointed Arbitration Council.
Other Muslim countries that modernised their laws and deviated from Shariat include Turkey, Syria, Egypt, Morocco etc. In any western secular country, the Muslim citizens follow their uniform civil secular code and not Shariat. Why should the benefits of a modern and progressive Constitution be denied to Muslim or tribal women in our country? This is not to deny the right to practice one’s religion. The Hindu Code Bill did not stop Hindus from practising their religion, even though it negated all the ancient smritis and laws that were unsuitable for the modern era.
The government must implement the UCC at the earliest while ensuring the anomalies of the Hindu Code Bill and the unfair advantage given to Hindu undivided families in taxation. The different laws in states like Goa etc can be smoothened out. UCC is a matter of ensuring gender equity, and it should not be sacrificed at the altar of identity politics if we want to remain a modern nation.
Anand Neelakantan
mail@asura.co.in
Author of Asura, Ajaya series, Vanara and Bahubali trilogy