Uniform Civil Code in India

Uniform Civil Code in India

December 02, 2016
Safi H. Jannaty
Safi H. Jannaty


IN no other period of time since Independence have Indians found themselves as polarized and divided over religious cultural and national issues as they are today. Minorities, especially the Muslim and Dalit communities, are feeling a sense of isolation and insecurity, which will ultimately affect economic growth and social welfare.

One controversy after the other has erupted in the nation since the right-wing party was catapulted into power two years ago. Be it the issue of Amir Khan expressing his concerns or the ruckus in the JNU or Asaduddin Owaisi refusing to praise the nation using a certain specific phrase or the killings and beatings in the name of saving cows from slaughter or Dr. Zakir Naik’s preaching, Muslim communities have been singled out not only by fundamentalist groups but also by the Indian media over which the clutches of the right-wing and capitalist forces have gained stranglehold strength.

The government is now trying to force Muslims to dispense with Shariah insofar as their personal affairs are concerned. In the name of the Directive Principles of the State Policy of the Constitution, which are like guidelines for ensuring the economic and social welfare of citizens, the government is trying to draft and implement a Uniform Civil Code (UCC) for the country.

Effectively, that would mean that the personal affairs of Indians would be governed and subject to the UCC and the provisions or rules of their respective personal laws or the hitherto civil codes would not be applied by the courts and other governmental agencies. Given the strength of the ruling party in Parliament and state legislatures, in all probability, one could expect the UCC to stop all those practices that are found to be incompatible with the religious beliefs or practices of the majority.

It all started in October last year. Banking on the request of a two-judge bench of the Supreme Court which called for setting up a bench to examine gender discrimination, especially “arbitrary divorce”, the government and the ruling party allowed the issue to snowball into a greater controversy and brought into the limelight what they called or mislabeled: “triple talaq”. Although a total misnomer, the issue of uttering “talaq-talaq-talaq” at one time which is practiced by certain uneducated sections of the Muslim community gave the forces averse to Islam and Muslims a ready tool to call for the abolition of all personal laws and the adoption of a Uniform Civil Code.

What could ultimately prove to be a formality in times to come, the Law Commission of India issued a questionnaire on October 7, 2016 inviting the Indian public to express their views on the issue of personal laws and the UCC. A glance over the questionnaire reflects not only the utter haste in which the questionnaire was drafted, but also the insidious and sinister intention of the government. The partiality and lopsidedness of the Commission and the government is so evident and manifest that it would not take a genius to determine that the whole exercise is being undertaken to target the Muslim Personal Law.

Over eighty percent of the questions directly or indirectly relate to the provisions under Muslim Personal Law or Shariah principles. Out of 16 questions in the questionnaire, eight questions are directly related to the Muslim Personal Law and practices, whereas one question each relates to practices and customs of the Hindu and Christian communities. The rest of the six questions indirectly affect or will affect the Muslim population. Most of the questions are superfluous and are listed for the sake of asking. Undoubtedly, in the face of the UCC or with the adoption of the UCC, all of these questions will totally lose their value and significance.

The involvement of the government with religious issues is also evident from the fact that when there are many other important provisions or articles related to the Directive Principles of the State policy including the enactment of laws to stop the concentration of wealth in the hands of a few; providing adequate means of livelihood for all men and women; equal pay for equal work for men and women; guarding children against exploitation; prohibiting the production and sale of alcoholic drinks and other intoxicating products which have never been touched nor discussed, what is the need to push the throttle on issues related to personal laws?

Unfortunately, Muslim political leaders and religious leaders are failing pathetically in presenting their response with objectivity and are being buried in the labyrinth so shrewdly and skillfully created by the media and other vested interests. One would wish that the “triple talaq” issue, which has been cleverly blown out of proportion, would be beheaded by Muslim leaders on the spot in order to obliterate the subject once and for all.

One would also wish that there was one clear voice on the concept of “triple talaq” and that the Muslim community would unanimously assert that it is just a misnomer and does not exist per se in light of the right and proper teachings of the Holy Qur’an. In Chapter 2, Verse 229, the Holy Qur’an prescribes that “talaq” is permissible twice and during the period of “idah” (waiting period), the parties can stay together or part on equitable terms.

The word “twice” clearly indicates two different periods of time. One scholar has elaborated on this issue. If someone visits a friend twice and does not find him, it would mean he had visited his friend at two different times and not at one point in time. Besides, in Chapter 65 of the Holy Qur’an, which is mostly devoted to the issue of “talaq” indicating its importance and significance, it is stated that divorce is to be given in the prescribed “periods.” The word “periods” is used in the plural, which means divorce given at different times. The ruckus over women being separated instantly by the utterance of the word “talaq” needs to be negated and argued by presenting the Qur’anic verses which stipulate in many places the need for a waiting period for the sake of conciliation and allowing the parties the time to reconsider.

One also needs to understand and make others understand the issue from a logical or reasoning perspective. For the sake of argument, if we assume that the so-called “triple talaq” is practiced or exists in some communities and needs to be abolished legally, what results would that achieve for women? Would that mean that the couple could reunite after the first and second divorce as the so-called utterance of “talaq” three times at one go would be considered legally void? After abolishing the practice legally, could the government or judiciary force the couple to reunite for the second time against their will since “talaq” pronounced three times at one go was not the final “talaq” after which the couple cannot be united? Definitely not, then, what is the purpose for creating a brouhaha on the issue? In what way, would the abolition of the so-called “triple talaq” give women any protection or equality?

The Commission has asked one very valid question related to the infringement of the fundamental rights of citizens with the adoption of the UCC. If the Commission is genuinely interested in hearing the response with full objectivity to determine whether or not the UCC is needed and if the respondents, regardless of which faith they follow or whatever personal law applies to them, provide their comments with fairness and honesty, the government will have to decide to shelve the idea. There is no doubt that the imposition of the UCC or making individuals dispense with the provisions in the scriptures or religious laws they follow would infringe upon their right to freedom of religion. This is the crux of the whole issue and why communities have the right to protest.

The fundamental rights enshrined in the Constitution under Articles 25 to 28 not only grant right to profess, practice and propagate religion, but also grant the right to manage affairs in the matter of religion. It would be futile to argue that the exceptions to these rights or the powers granted to the State to legislate laws enable the government to force citizens to dispense with certain religious rights, duties and practices since those exceptions and powers are clear and they are related to public order, security and economic welfare, none of which would come into play as far as the Personal Laws or religious affairs of Muslims are concerned.

Needless to say, the fundamental rights stand above any other provision in the Indian Constitution including the Directive Principles of the State Policy. Again, there is no issue with individuals accepting or embracing the UCC or any other code, which is also their fundamental right. The Personal Laws have set different rules for organizing personal lives or managing religious affairs, which revolve around the fundamental rights of citizens. For instance, Islam allows married men to marry another woman. The UCC might or rather would stop such practice since it is not permitted in other religions. This amounts to an infringement of a person’s fundamental right. Ironically, if the UCC maintains this provision, then it would infringe upon the freedom of religion of those communities where such practice is not permitted.

Similar would be the case with the issue of marriage between first cousins, which is permissible in Islam but prohibited in many other religions. The Holy Qur’an stipulates in detail the manner in which property is to be distributed upon the death of a person and it is a religious duty to observe those rules which will be violated in case the UCC is imposed and hence would conflict with the freedom of the right to practice religion.

As the individuals in each community have been managing their affairs in the light of their religions, social customs and cultures for decades without any problem and without affecting the rights of others and when such rights were enshrined as fundamental rights in the Constitution, one fails to understand the need for the imposition of the UCC. As for those individuals who do not wish to have their affairs organized under any personal law or find the personal laws which apply to them not appropriate or right, they can always opt for the UCC.

Safi H. Jannaty,
Dammam


December 02, 2016
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