On Uniform Civil Code
Date : January 9, 2017
For some strange reason, an eminently secular issue has been communalized by those who wear the lable of secularism proudly on their sleeves. They say that in the period immediately after the independence, they were for the code – but since the Sangh parivar has taken up the issue they are having second thoughts. Little do they wish their readers to know that the Sangh has been for such a code ever since the independence!
Then we have foreign publications alleging that the Sangh has taken up the issue only as part of their supposed communal agenda. A Frenchman, Christophe Jaffrelot, who writes a lot on the RSS and the BJP for publications in India and abroad, recently wrote that a uniform civil cove would deprive ‘the religious minorities of certain features of their particular juridical identity’. If the writers had just re-read their contention, they would have realized that if such a code is anti the religious minorities, all the western democracies can be considered to be anti the religious minorities.
In 1955, when the Hindu Code Bill was passed, one of the issues that were asked of Jawaharlal Nehru was why were there was no similar condification in case of other communities. Nehru’s answer was that the other communities were not ready for them, and that there was no real demand from the members of these communities.
An article titled ‘Is govt ready for uniform civil code after 63 yrs?’, The Times of India (August 16, 2010) says: “Ridiculing this argument, J B Kripalani had said, ‘It is not the (Hindu) Mahasabhites who alone are communal; it is the government also that is communal, whatever it may say. It is passing a communal measure. I charge you with communalism because you are bringing forward a law about monogamy only for Hindu community. Take it from me that the Muslim community is prepared to have it but you are not brave enough to do it.’ …. Poignant words, weren't they? He accused the Prime Minister of lacking in courage to bring in reforms by codifying the Muslim law.”
But the Nehruvian line of community not being prepared still continues. In an article in The Mint (June 4, 2013) titled “The Nehruvian condescension towards minorities”, Rajeev Mantri & Harsh Gupta write: “Malini Parthasarathy, director of The Hindu Centre for Politics and Public Policy, echoed Nehru in a debate on Twitter, when she said that reform in the Muslim community should happen through “persuasion” rather than “imposition”. Parthasarathy said that India must take group rights seriously “if we want the world to believe that we are a genuine democracy.” But that does not answer why citizens affiliated to one religion should be “forced” to face difficulties in adopting children, for example—and if their religion is indeed opposed to adoption or other practices, why not let those individuals decide? Even Infosys Ltd founder N.R. Narayana Murthy has argued that reform in the Muslim community should come from “them”. Delivering the first Darbari Seth Memorial Lecture in 2002, Murthy said on the issue of having a uniform civil code that the onus to introduce it should be on leaders of a given community “if they want their community to prosper.” Should Indians not care about the welfare and prosperity of their fellow Indians?”
The secular line today is that they do not wish for a uniform civil code, but wish to see have gender just laws in all the communities. This is plain and simple chicanery (atrick of deception or subterfuge to achieve one’s purpose). When asked if these gender just laws would be different for different communities, they have a blank look on their face. If they do, then surely they will be denying members of the other communities of a favourable code in one community. If they don’t, then they are talking about a uniform civil code.
This chicanerey goes to the low level when they say that a uniform civil code should be opitional. Leave aside the question that by definition a uniform civil code can never be optional. The real issue, which they cannot deal with, is who is to exercise an option, and when. At the time of marriage, for example, the couple would just not think about even a remote possibility of divorce. But, should the unfortunate situation come to pass, who will exercise the option, and is it possible for justice to be done?
It is no one’s contention that the Hindu codes are egalitarian. They too need modification, and reform. For example, a man take a second wife if the first wife does not object. Given the nature of a section of the society, it is often very difficult for the first wife to object. The man just has too much power. And there have been high profile cases where the man has ostensibly converted to Islam to marry another woman, who has also ostensibly converted to Islam. In the present climate, a secular government and the secularists find it very difficult to take up these issues relating to the Hindus and yet keep a straight face.
A misconception created by the secularists is that amongst the Muslims the real issue relating to a civil code is that a man can divorce a woman by saying talak three times. They have converted the debate from whether this form of divorce is just for the woman or not, into whether the pronouncements should be made at one time, consuming less than 5 seconds, or whether it should be spread over two months. Surely, a man bent on divorcing, would really have no problem to wait for two months, and it would be rare that he would change his mind during this period.
Today, many of the Muslim clerics have said that the use of modern technology like mobile phone (both voice and messaging), email, etc., are all perfectly legitimate forms for a man to divorce his wife. This causes a lot of distress to the Muslim woman, and the secularists are to be blamed for so many Muslim women suffering in India.
Apart from the mental torment, the Muslim woman, and the children born of her, have to suffer physical hardship since the man has no obligation, as per the law that stands today, to give a pittance for some three or four months. It was on this account that Shah Bano had brought a case against her ex-husband, and the Supreme Court judged that she was entitled to maintenance as per the Indian Penal Code. On the altar of vote-bank politics, the grand-son of Jawaharlal Nehru, enacted legislation to overturn the judgement.
Many Muslims women are still fighting this patently unjust legislation. Their misfortune is the secular political parties, as well as the secular intellectuals, are nowhere coming out in their support. Of course, these secularists will be shedding crocodile tears in the comfort of five-star hotels, etc., where seminars are organised on the need to reform the Muslim laws so that the women are not discriminated against.
There are many other aspects of the civil code that need to be mentioned. For example, amongst the Muslims, there is no concept of adoption. The man and woman can only be guardians to the children that they take into their home. If these children work hard to assist their parents into building a prosperous business, the children have no right over the property when the parents expire. All of it will go the relatives of the parents, and not to these ‘adopted’ children.
In the early 1970s, the daughter of Jawaharlal Nehru wanted to make adoption available to all communities. But such was the pressure of from even the Muslim ministers in her own cabinet that she had to drop the move.
In Christian communities, a man can divorce a woman on grounds of adultery by his wife, while the woman has to prove adultery plus either mental or physical cruelty. Amongst at least some Christians, the womand does not have a right for a share in her husband’s property on his expiry. And there have been cases where the children have left their mother on the streets by selling the house that they have no longer any need for. At least in case of the Christians, many of laity have worked for reforms, with some support from their churches. The result of these efforts can be best explained by a Christian herself when she wrote in a Christian publication as follows:
So, even when a community is seeking for the changes, secularism means that they too are ignored because it would then put the pressure on the Muslim secularists to come out with reforms which will be vigorously opposed by the clergy.
Article 44 of the Indian Constitution says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” A long time has passed, and many people, particularly women, of all communities have suffered all these years due to the failure of the state to pass the honourable legislation to do justice for the people of India. Yet, today, the secular media and the secular intellectuals are applauding that the Janata Dal (United) of Nitish Kumar had successfully forced the BJP to set aside this issue so as to have a coalition government.
L K Advani of the BJP, in the Illustrated Weekly dated March 6, 1993, has suggested a way of working for a uniform civil code. He said: “When the BJP talks of a uniform civil code, it does not contemplate imposing the Hindu law on the country. Our party manifesto has very clearly stated that the BJP would ask the Law Commission to examine the Hindu law, the Muslim law, the Christian law and the Parsi law and cull out the modern, progressive, equitable ingredients of these laws and, on that basis, draw up a common civil code. If some of the laws relating to the Hindus today have to go on that account, they have to go. For example, the Hindu Undivided Family act may have to go. Whatever has to be done, has to be done for all.”
Yet, the secularists go about saying that a uniform civil code would mean that the Hindu codes will be made applicable to all, and that the Hindu rituals will be used to perform a marriage. They do not wish the non-Hindus to know that the Hindu code bill was a purely secular measure, and not based on any of the Hindu scriptures. Or that the marriage rituals are not at all necessary to register the wedding in a civil court. But then without chicanery, the secularists cannot make their case.
In 1998 itself, the BJP should have requested its alliance partner to have a discussion on the merits or otherwise of the uniform civil code. However, it set this very secular issue aside, stating that there was a compulsion of coalition. This did not go well with its core support base, particularly since it was set aside without having a discussion on the subject.
In an article in The Times of India (February 2, 2103), the sociologist, Dipankar Gupta wrote: “Gandhiji never asked the people if they wanted untouchability out, nor did Nehru go for a straw poll before he piloted the Hindu Marriage Act. Neither of these measures would have been possible if Gandhi and Nehru stood in the shadow of the people and feared the light. As they knew how to call a bully's bluff, they junked the mirror for Brecht's hammer, and gave us the liberties we enjoy today.”
The Christian community has been prepared for changes a long time ago, and the laity says that they have their churches on board. The Muslim woman has been pleading for the changes all these years. It is the bluff of the Islamic clergy, coupled with the lack of the courage of the moderate Muslim, that needs to be called.
(Ashok Chowgule is the Working President (External) of the Vishwa Hindu Parishad.)