The Kerala High Court recently upheld an Indian Muslim woman’s right to demand ‘khula’ or separation from her husband without his consent. The court while doing so also observed that Islamic clergy alone cannot be relied upon in matters pertaining to women’s rights, in this case, especially under the Muslim Personal Law Board.
Just a day before that the Karnataka High Court had observed that a minor Muslim girl’s marriage after attaining puberty contravenes the provisions of the Prohibition of Child Marriage Act, 2006, adding that the POCSO Act that’s meant to protect children up to the age of 18, reigns supreme in this case and no personal laws can override it.
All this when looked at from a vantage, does look like things are moving towards implementation of a Uniform Civil Code (UCC). Gujarat home minister Harsh Sanghvi on October 29 had announced that a committee will be formed, in all likelihood under a retired Supreme Court judge, for implementing the UCC in the state. Earlier, the Uttarakhand and Himachal Pradesh governments had also announced similar decisions.
It’s important to note that many tend to believe that UCC will remove all the inequalities in a single stroke and create a gender-just society. Although, honestly, what the UCC claims to offer is ‘formal equality’, which means that for fairness, people must be consistently or equally treated at all times. But isn’t a pluralist society like India, more in need of ‘substantive equality’, which goes beyond the basics of recognising the equality of everyone and identifies differences among groups of people, and talks about how the essence of equality is to make distinction between these groups and individual in order to accommodate their different needs and interests.
Last year, then Chief Justice of India SA Bobde had gone on to appreciate the UCC in Goa, the only state in India to have one. But is Goa’s Civil Code really as uniform as is generally made out to be? More than 152 years have passed since the Portuguese Civil Code of 1867 became applicable in Goa. During this period, Goan Family and Succession Law has undergone some very relevant changes. For example, the Code of Gentile Hindu Usages and Customs of Goa 1880, which provides a set of exceptions to the Code’s provisions on Family and Succession Law, and preserves customs of Hindus. The Shariat Act of 1937, however, has not been extended to Goa and Muslims are governed by the Code as well as Shastric Hindu law. Even the progressive civil code — the Special Marriage Act – has not yet been extended there.
So, with the Gujarat government’s latest move, the spotlight is back on the UCC debate. One needs to note here that the Law Commission had concluded in 2018 that “a UCC is neither desirable nor feasible”. If we look at debates that have been happening around UCC, the earliest ones have to be attributed to one of the architects of the Indian Constitution, Dr BR Ambedkar himself, who had said no government can use its provisions in a way that would force the Muslims to revolt. In fact, former member of the Constituent Assembly of India, Alladi Krishnaswami, who was in favour of a UCC back then, even conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
But is it just the Muslim community that’s coming in the way of UCC? Remember it took 14 years to pass the legislation after the Constitution of the Hindu Code Bill Committee, and even then it wasn’t one uniform act, but three different ones: Hindu Marriage Act, 1955; Hindu Succession Act, 1956; and Hindu Adoption & Maintenance Act, 1956. Moreover, not all reforms could be incorporated because of opposition from the Hindu right, with many justifying unregulated polygamy in Hindus, opposing the daughter’s right to inheritance and questioning the Constituent Assembly’s right to legislate on religious matters. Many would remember how the bill was famously opposed by the President of the country Dr Rajendra Prasad, who threatened to veto it in 1951, when Ambedkar had to resign as law minister. Prime Minister Jawaharlal Nehru had to yield and the Bill was not passed as Prasad maintained that introducing “basic changes” to personal law would inflict “progressive ideas” of a “microscopic minority” on the Hindu population.
Syama Prasad Mookerjee, later founder of the Bharatiya Jana Sangh, had said in Parliament then, that instead of the Hindu Code Bill, the government should bring a UCC. There was substance in that argument, as opposed to Nehru’s who insisted on modernising Hindu personal laws and offering additional safeguards to minorities.
Remember the BJP manifesto for the 2019 Lok Sabha elections had stressed on UCC to bring in gender equality in its truest sense. It promised a UCC would be drafted drawing from the best traditions and harmonising them with modern times. This implies that the UCC would include the best provisions of all personal laws. Creating a UCC cannot be rushed through. It requires the participation of all religious groups and the judiciary. A UCC cannot just be a reform of the personal law of minorities; it will require reforms of Hindu practices too. Like, not all Hindus in the country are governed by one law. Marriage amongst close relatives is prohibited by the Hindu Marriage Act, 1955 but is considered auspicious in the South. There is no uniform applicability of personal laws among Muslims and Christians either. The Constitution protects the local customs of Nagaland, Meghalaya and Mizoram. Even land laws in a number of states are discriminatory, and daughters do not inherit landed properties in the presence of sons.
So, it is important that the secular laws first be made gender-just before the country undertakes reforms in religious laws. Piecemeal reform rather than enactment of the UCC in one go is the way forward. And a just code rather than a uniform code.
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