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The debate

1930s to 2015

The Times of India, Nov 02 2015

How the demand for a Uniform Civil Code originated; Graphic courtesy: The Times of India, November 2, 2015

Amulya Gopalakrishnan  Why a common civil code may not be a great idea

Even if Parliament does design the dream civil code, it might be wiser to make it optional. That would encourage faster reforms in personal law, perhaps even prompt its gradual withering away The Uniform Civil Code (UCC) is a dream long deferred, and now it looks like the courts can barely conceal their impa tience. A Supreme Court bench, hearing a case on a Hindu woman's petition on inheritance, was recently stirred into ordering an examination of practices like polygamy and triple talaq in Muslim personal law, which it declared “injurious to public morals“. The Centre is already on a deadline from another SC bench to present its views on the UCC. Though the BJP once claimed the UCC as a burning priority , the government has been guarded in its response so far, calling for “consensus among all stakeholders“.

First raised by the All India Women's Conference in the 1930s, the UCC was once a simple demand for equal rights in marriage, divorce, adoption and succession for all women irrespective of religious laws. But since India was born in inter-religious strife, and was a pact between religious groups of unequal clout, the Constituent Assembly left this plan to the future.

At this point, who is Team UCC? The Hindu right-wing, which is aggrieved that minority cultures remain unscathed, even though Hindu practices were painfully codified in the 1950s.Liberals also believe that secular citizenship means strict equality before law, that the state and religion should be walled off from each other, and that India's regime of distinct personal laws, which discriminate against women in various ways, should be replaced by a fair civil code.

Those who resist the UCC include many believers, and also those who say that secularism is not a one-size-fits-all model, and that instead of uniform laws, the state should push for uniform principles of gender justice and individual freedom. It could root out gender-bias from various personal laws, as the courts and legislatures to a lesser extent have indeed been doing, rather than boiling everyone down to a common citizenship, they say .

Then there are those who do want a common civil code in the future, one that reflects the state's vision rather than majoritarian norms, but not in a situation where minorities feel anxious and alienated.

What Muslim women want

Many who argue for a UCC speak in tones of concern for Muslim women. Yet, among them, there has been no audible voice asking for it.

Most Muslim women's groups oppose polygamy and triple talaq, but do not want religious laws to be steamrollered. “If you follow Quranic injunctions correctly , women have more rights than men,“ says Shaista Amber of the All India Women's Personal Law Board, suggesting that courts should consult female muftis rather than self-appointed spokesmen of the community like the All India Muslim Law Board. “Islam is our religion, our conviction, we want to live and die within it.“

For Noorjehan Safia Naz of the Bharatiya Muslim Mahila Andolan, the problem is that “Muslim personal law is not codified, and therefore open to all kinds of contentions“.Apart from the Muslim Personal Law (Shariat) Application Act of 1937, the Dissolution of Muslim Marriages Act (1939) and the Muslim Women (Protection of Rights of Divorce) Act and Rules (1986), judges have to rely on scholars of Islamic jurisprudence in a case-by-case manner. Naz advocates a comprehensive personal law code that removes triple talaq, polygamy and other unfair practices, and has drafted exactly such a model.

But not all Muslim women's groups are averse to the idea of a common code. “We want a gender-just set of family laws that is formed after listening to what women's groups want,“ says Yasmeen Aga of the Mumbai-based Awaaze-Niswan. But in parallel, “if a woman wants to follow the personal law of her religion, that choice should also be available,“ she adds.

Towards gender parity

“The general attitude is that Hindu law is reformed, Muslim law is anti-women,“ says lawyer Flavia Agnes. “But in terms of economic rights, the Muslim marriage-as-contract works out better for women, in terms of dower and traditional maintenance. Even with polygamy , the multiple wives have legal and social rights.“

She points out that the Hindu woman in a nonmarital domestic partnership is utterly without recourse -in 2010 the Supreme Court ruled that maintenance under the Domestic Violence Act did not cover such cohabiting couples, even referring to them as “concubines“.Legislation has made Hindu and Christian laws more receptive to women's rights -Hindu succession was reformed considerably in 2005, making all daughters coparceners in joint family property and giving them equal claims to agricultural land; in 2001, Christian women and men were brought on par, in terms of divorce rights.

“Meanwhile, the courts have done a creditable job in affirming the rights of Muslim women,“ says political scientist Narendra Subramanian, whose book Nation and Family: Personal Law, Cultural Pluralism and Gendered Citizenship covers this ground.

Subramanian details this remarkable reform process, showing how the courts have harnessed Islamic traditions and constitutional principles to expand individual rights.Even the ambiguously-worded Muslim Women (Protection of Rights on Divorce) Act of 1986 that followed Shah Bano ruling has had a happier arc than commonly assumed, as courts have used it to award generous alimony payments to divorcees, and established, through the 2001 Danial Latifi ruling, that Muslim men owed their ex-wives ongoing maintenance. Apart from bending various personal laws towards justice, women's groups have focused on creating criminal and civil laws that apply to everyone, obviating the UCC -for instance, the Juvenile Justice Act now makes adoption equally available, the Domestic Violence Act and its protections apply to all citizens. The Special Marriage Act has been a way of opting out of personal law. “Why does there have to be a uniform code for gender justice?“ asks political scientist and feminist scholar Nivedita Menon. She argues that codification of Hindu law, in the image of north Indian upper castes, actually hurt certain women by ending matriliny and other practices that women gained from.Similarly, practices like mehr are unique to Muslim women, and they actually stand to lose from a civil code that doesn't accommodate it. Which is why, she says, much of the women's movement has abandoned the demand for a flattening UCC, likely to be shaped by dominant norms. Instead of standardisation, they press for principles like gender justice and individual autonomy within diverse personal laws.

How to be secular

The debate over UCC, then, is an argument about secularism. Contrasted with US-style “assimilative secularism“, India has its own kind of “ameliorative secularism“ that moulds the majority religion towards social equality , but gives minorities greater space. It may be infuriating to some and not good enough for others, but it does have an appreciation of minority group rights and multiculturalism, in ways that western liberal democracies have been lately contending with.

But there is a common view, recently voiced by historian Romila Thapar, that India must gradually remove any religious considerations from the law, to be strictly secular. “This would not be a cosmetic change; or mean uniformity only in personal law, but all the codes we conform to that are determined by religion or caste“, she says. That kind of strict uniform secularisation would upset many vote banks, apart from Muslims -it would end the Hindu undivided family's tax benefits, it would extend reservations to eligible castes in all religions.Assume that Parliament irons out all the conflicts and designs a dream civil code -through what Subramanian calls an “amplification of the Special Marriage Act“ -extending across all domains of family law. (Many women's groups have indeed floated versions of such a code). Should this be obligatory or optional? “If it is made obligatory in an environment where there is no social support for it or state capacity to implement, then you may be pushing women into sharia courts or other dispute resolution forums, as happened in Turkey . Look at the way khap panchayats reject the state's authority even in criminal and civil law,“ Subramanian says. If it is optional, it would give citizens a common set of rights, and also let them choose the sphere of personal law if they prefer. This might prompt further reform of personal law, to keep women within the fold.And conversely , for those who hope for secularisation in the Western mode, this would make the advantages of civil law obvious enough that personal law could slowly wither away .

1947, February-March: debates in favour of UCC

Vaibhav Purandare, How Ambedkar and others pushed for a uniform code before Partition, September 5, 2017: The Times of India

 With communal conflict raging outside, the Constituent Assembly had to take a call on individual rights, the place of religion, and minority insecurity Barely 24 hours after Jawaharlal Nehru's `tryst with destiny' speech, Claude Auchinleck, designated as supreme commander of the Indian and Pakistani armies, infor med Lord or `Dickie' Mountbatten, earlier viceroy and now governor-general, that India was in a state of civil war.

The situation in the subcontinent had turned combustible ever since the Muslim League had passed its 1940 `Pakistan' resolution, and Mohammed Ali Jinnah had raised communal tempers so much by 1946 that violence had broken out in many parts. With Partition and Independence had come mass migration and terrible slaughter. Hardly the perfect setting for India's Constituent Assembly , first convened in December 1946, to calmly focus on its job of framing a new Constitution.

Its members even had difficulty reaching the Assembly chamber for its fifth session in August 1947; with the bloodbath raging in both Old and New Delhi, they needed special curfew passes.

Yet this Constitutionmaking body, dominated by Congress, with nonCongressmen like B R Ambedkar the exceptions, was keen to transform India's political revolution into a social one and to create a document enabling social (and as part of it, economic) progress and fostering national unity and stability. It rejected at the outset the idea of a `Gandhian Constitution' (based on the village as a key unit of national life) and decided to accept the parliamentary government model adopted by leading Western nations.Fundamental rights and Directive Principles of State Policy (the latter inspired by the Irish Constitution) were to be the soul of this Constitution. But if the balancing of individual rights and the common good or `group interests' was a ticklish issue in a largely tradition-bound, caste-ridden and now communally-split society, there was an even more delicate matter to deal with ­ the status of religion. The Assembly was clear that India would have no state religion -it would be secular. But whether secularism in the Indian context meant `total separation of church and state' as in some Western societies or `equal respect for all religions' was to be decided. Those in favour of `equal respect' won, as India was deeply religious, and the Fundamental Rights SubCommittee, one of the Assembly's key panels, put in a clause on the freedom to practise religion.

One of its members, Rajkumari Amrit Kaur, however objected to this, saying `free practice' could legiti mise `anti-social practices' such as Sati, purdah and devdasi customs and nullify laws such as the one favouring widow-remarriage (the Constitution eventually adopted a provision saying the right to practice religion should not prevent the state from enacting social reform laws). The battle related to faith had begun soon after the Assembly was formed, and it became fierce when, during the discussion on citizenship, the matter of a uniform civil code was first raised. This was in February-March 1947, that is, in fact, some months before freedom came and months after communal violence had begun.

The rights sub-committee had 12 members. When it first met in February, it had in front of it drafts on rights prepared by some of its members like Ambedkar, K M Munshi, K T Shah and Sardar Harnam Singh, and also by the constitutional adviser B N Rau and the Congress Experts Committee, a party panel that had prepared a draft for the Assembly's `guidance'. The drafts of at least two members ­ Ambedkar and Munshi ­ included a clause on a common civil code as a justiciable right, meaning it would be enforceable by courts. Till the early 19 th century, religion had pretty much ruled the life of Indians. Following demands from Hindu social reformers, though, the British had gradually outlawed certain practices and, in 1946, readied a draft for reform of Hindu laws. Yet the majority of faith-based practices were left untouched, and in the case of Muslim personal law, the colonial power, always eager to divide and rule, had not intervened at all.

There were two opinions on this sensitive subject among Indian leaders at the time. One was that personal laws had to go at once in order to create a casteless, classless and united society on the basis of equality, direct elections and universal suffrage. The other was the view of Nehru and some other Congress leaders and, therefore, highly influential. Nehru and these netas felt the Muslims, who were facing the brunt of communal violence in many Hindumajority areas, had genuine fears, and the Constitution would have to allay these and provide the minority community a sense of security.This meant not touching their personal laws or the laws of the Sikhs, who were also affected by violence in the Punjab (claimed during Partition talks by both India and Pakistan; eventually it was divided).

As the Congress wanted to project itself as a secular outfit representative of all Indians, Jinnah's allegations from 1939 onwards that Congress governments in the provinces had “interfered with their (Muslims') religious and social life, and trampled upon their economic and political rights,“ established “a Hindu Raj“ and “emboldened Hindus to ill-treat Muslims“ must have worked on the minds of Nehru and other leaders too. So must have the Communist Party of India's 1943 resolution accepting “the essence of the demand for Pakistan“ which praised Jinnah and sought to paint Congress as a party with a religious bias. Here was a non-Muslim and an avowedly antithetical-toreligion p a r t y t o o b a ck i n g t h e League and its religionbased demand and branding Congress that had led the freedom movement.

Would the personal laws then stay or go, and did a unifor m code stand any chance? The rights subcommittee debates would determine that, followed by the decision of the Assembly's advisory c o m m i t t e e, h e a d e d by Sardar Patel, and then a consideration of the entire Draft Constitution by the Assembly .

The personal laws of the various communities

The personal laws of the various communities
From The Times of India, September 4, 2017

See graphic, ' The personal laws of the various communities '

Why India doesn't have a uniform code

The issues

The Times of India, Aug 24 2017

Now that Supreme Court has made instant triple talaq illegal, the debate on personal laws is gaining centre-stage yet again.Should India allow each community its personal laws or should all Indians follow a uniform civil code? Personal laws deal in the main with family issues such as marriage, divorce, inheritance and are by and large skewed against women across communities and religions. Yet, some voices even from women's movements are wary about a uniform civil code.What is their say? Why is a uniform code desirable and what fears does it trigger? Here, a primer on the issue

What is Uniform Civil Code?

It was first raised as a demand in the 1930s by the All India Women's Conference, seeking equal rights for women, irrespective of religion, in marriage, inheritance, divorce, adoption and succession.

While the Constituent Assembly and Parliament considered such a Uniform Civil Code desirable, they did not want to force it upon any religious community in a time of strife and insecurity . They left it as a Directive Principle of the Constitution, hoping it would be enacted when the time was right.

Why does India have personal laws?

Each religious community in India has certain unique practices in family life, from marriage to inheritance and from marital separation to maintenance and adoption.Many of these are unfair to women, in different ways. India allows each community to practise its personal law, but these cannot violate constitutional rights.

There are also civil alternatives like the Special Marriages Act which any citizen can opt to follow.Under Ambedkar's stewardship, Hindu personal law was codified in the 1950s by Parliament, erasing distinct practices, though inequali ties between men and women still persist and custom prevails in some aspects. The majority religion is easier to reform; Pakistan, Bangladesh, etc. have reformed Muslim law while being cautious with Hindu practices. Indian lawmakers have also been more hesitant to change religious laws for minorities.

In 1986, the Supreme Court's Shah Bano judgment for maintenance was amended by Parliament, in a way that placated the Muslim clergy . Muslim personal law has not been codified by Parliament, except through the Shariat Act of 1937 and the Muslim Women (Protection of Rights of Divorce) Act of 1986. Judges have to rely on Islamic jurisprudence in a case-by-case manner. The Bharatiya Muslim Mahila Andolan, which fought triple talaq in court, has sought codification of Muslim law to remove unjust practices.

Meanwhile, incremental change has happened over the decades.

Hindu succession was reformed by Parliament in 2005, and Christian divorce rights were made gender equal in 2001. The courts have steadily affirmed women's rights of maintenance, adoption, etc. in various judgments, strengthening reform in minority communities.

Who is pushing for a Uniform Civil Code?

There is vocal support for the idea from people with different motivations. Some feel that only the Hindu com munity has had its practices codified by Parliament so far and want minority practices to be similarly disciplined.

Some feel that secularism means taking out all traces of religion from family law and submitting to a single civil code that applies to all Indians in the same way . Some feel that all religious laws discriminate against women, and that the state owes its citizens a single, genderequal set of laws.

Who is against the Uniform Civil Code right now?

Many voices in the women's movement, people from minority communities, and others of a multicultural secular bent resist the Uniform Civil Code, saying that the state should push for uniform rights rather than a single code.

They call for rooting out gender bias within existing personal laws, rather than flattening religious difference under a code that they fear may be created in the mould of the Hindu majority .

They also argue for expanding civil alternatives like the Special Marriages Act, the Domestic Violence Act, the Juvenile Justice Act, etc. which apply to all women, irrespective of personal law. In their view, a Uniform Civil Code would be desirable only if it is fair to all communities, and not in a situation where minorities feel insecure.

What would a Uniform Civil Code look like?

An ideal Uniform Civil Code is easier to discuss than enact; there has never been a clear draft of such a code. It would have to restructure many laws, and forge a neutral standard. While polygamy and arbitrary divorce associated with Islam would go, so would the tax ben efits of the Hindu undivided family .Reservation would have to be extended to all religions. Distinctive practices of Buddhism, Jainism and Sikhism might also have to end, in the domain of family law.

In some aspects, Muslim law is better for women, since they recognise individual rights to property, and because marriages are civil contracts with fixed obligations, rather than sacraments.

All these would have to be taken into consideration for a just Uniform Civil Code.

Nehru okayed principle, but didn't make it a directive

Vaibhav Purandare, Uniform code: Nehru okayed principle, but didn't make it a directive, Aug 23 2017: The Times of India

India's first PM Jawaharlal Nehru professed his keen desire to have a Uniform Civil Code (UCC), but though he succeeded in codifying Hindu law, his government took no step towards reform of Muslim personal laws and sidestepped the question of a common code altogether.

When Dr B R Ambedkar asked the Constituent Assembly to adopt a uniform code, its Muslim members staunchly opposed it, so all he got in the Constitution was Article 44 in the Directive Principles that said `the State shall endeavour to secure for the citizens a uniform civil code.' The British had left Muslim laws untouched but had prepared a draft for reform of Hindu laws in 1946 in the wake of a robust Hindu social reforms movement. In 1948, Nehru asked Ambedkar, the first law minister, to head a panel that would work on this draft and finalise a Hindu code (which would apply also to Buddhists, Jains and Sikhs). When Ambedkar felt Nehru wasn't pushing the code through, he quit the Cabinet in 1951. After Nehru won a thumping win in the 1952 general elections, the Hindu Code Bill was revived, though by then it was split into many parts (relating to marriage, divorce, inheritance etc).

While the R-S-S saw in it an assault on Hindu tradition and many swamis quoted from the scriptures to show, for instance, how Hindu marriages were sacrosanct and indissoluble, the political opposition, right-wing as well as the Left, attacked Nehru's government, asking why the code wasn't an `Indian' one. Dr Shyama Prasad Mookerjee of the Jana Sangh said, “I know the weaknesses of promoters of this bill. They dare not touch the Muslim minority . There will be so much opposition coming from throughout India that government will not dare to proceed with it. But of course you can proceed with the Hindu community in any way you like and whatever the consequences may be.“

The Hindu Mahasabha's N C Chatterjee questioned the need for a `Hindu' Marriage Act if India was a secular nation. And if polygamy was bad, “why not rescue our Muslim sisters from that curse and plight?“ Socialist leader JB Kripalani said the government ought to bring in monogamy for Muslims too and added the community was “pre pared for it.“ His wife Sucheta Kripalani, a Congress MP, felt the Muslims weren't quite prepared but said she hoped the government would bring in a UCC “soon“. The Communists too wanted the personal laws of all communities to be reformed; B C Das and Bhupesh Gupta felt the reforms being undertaken weren't far-reaching enough.

Nehru believed that given the preand post-Partition violence, Muslims who had stayed back in India would feel insecure if a UCC was introduced immediately. He said the UCC had his “extreme sympathy,“ but the time was not “ripe“ for it. “I want to prepare the ground for it and this kind of thing (Hindu code) is one method of preparing the ground,“ he said. Muslim MPs then thanked him profusely for “protecting“ their personal laws.

The bills on reforming Hindu laws were passed in 1955-56, after which the UCC debate and the one on codifying Muslim law more or less died down. It resurrected itself in 1985-86 (by then Panditji had been dead for over 20 years and his daughter Indira, too, had passed away) when Nehru's grandson Rajiv overturned the SC verdict in the Shah Bano case.

SC, 2017: Govt Cannot Interfere With Religious Laws

But 3 Of 5 On Bench Say Govt Cannot Interfere With Religious Laws, August 23, 2017: The Times of India

While declaring triple talaq an unconstitutional practice, the Supreme Court's five-judge bench by a majority said personal laws of every religious denomination enjoyed the status of fundamental rights and could not be invaded by government.

“Personal law has constitutional protection. This protection is extended to personal law through Article 25 of the Constitution. It needs to be kept in mind that the stature of personal law is that of a fundamental right,“ Chief Justice J S Khehar and Justice S Abdul Nazeer said.

The ruling, supported by a separate judgment by Justice Kurian Joseph, was celebrated by the All India Muslim Personal Law Board and Muslim outfits like All India Majlis-e-Ittehadul Muslimeen as validation of their stand that government could not interfere with personal laws.

The two other judges -Justices R F Nariman and U U Lalit, who along with Justice Joseph scrapped triple talaq -did not offer any comment on this issue.

CJI Khehar and Justices Nazeer and Joseph stressed that government was competent to reform personal laws on grounds like public order, health and morality -excep tions which have been provided for under Article 25(2) of the Constitution.

This leeway can be used by government to try to carry out changes in personal laws.The court also asked the Centre to take steps to codify Muslim personal law, especially to eliminate triple talaq, by enacting a law. The court appealed to po litical parties to rise above politics and consider such a legislation.“Measures have been adopted (to codify and eliminate maladies) for other religious denominations even in India, but not for Muslims,“ Justices Khehar and Nazeer said.

Underlining the importance of personal laws for the protection of minority rights, CJI Khehar said, “The elevation of personal law to this stature came about when Constitution came into force. This was because Article 25 was included in Part III (fundamental rights chapter) of the Constitution. Stated differently, personal law of every religious denomination is protected from invasion and breach, except as provided by and under Article 25. It is not possible to breach the parameters of faith, as they have the protective shield of Article 25 (except as provided in the provision itself.“

Justices Khehar and Nazeer said since `personal law' had the stature of a fundamental right, “it is, therefore, the constitutional duty of all courts to protect, preserve and enforce all fundamental rights, and not the other way round. It is judicially unthinkable for a court to accept any prayer to declare as unconstitutional, for any reason or logic, what the Constitution declares as a fundamental right.Because in accepting the prayer, this court would be de nying the rights expressly protected under Article 25.“

Justice Joseph agreed with the CJI on this issue and said, “To freely profess, practice and propagate religion of one's choice is a fundamental right guaranteed under the Indian Constitution, subject to public order, health, morality and other provisions of Part III dealing with fundamental rights.“

He, however, also acknowledged that the Constitution equips the State with powers to reform personal laws. “ Article 25(2) permitted the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and, providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the CJI,“ Justice Joseph said.

The CJI and Justice Nazeer said reforming personal law was squarely within the domain of government. It said maladies in Hindu personal law -sati, devadasi system and polygamy -were all abolished by enacting separate laws and codifying Hindu personal law. They said Islamic countries the world over had taken steps to correct Shariat to eliminate triple talaq and it was time India took a similar step.

See also

All India Muslim Personal Law Board

Muslim law and adoption: India

Muslim personal law, India: Divorce

Muslim personal law, India: Divorce (SC verdict, 2017: full text)

Muslim personal law, India: Marriage

Muslim personal law: India

Muslim personal law: India (fatwas)

Muslim personal law: Pakistan (fatwas)

Uniform Civil Code: India