Monday, October 31, 2016

A Secular Case for Common Civil Code

Abdul Rahman

The news regarding Muslim Personal Law Board and other Muslim organisations’ adamant stand on the issue of tripal talaq and BJP led union government’s attempt to push for Universal Civil Code (hereafter UCC)[1] has energised the debate on reforms in Muslim Personal laws verses UCC. A section of Muslim women along with Bhartiye Muslim Mahila Andolan (a secular organisation established by Muslim women in 2007) have decided to take the issue to the Supreme Court in the form of PIL. The government is in favour of abolishing the practice of tripal talaq too. However, RSS-BJP sees this opportunity to polarize the Hindus raising the issue of UCC. Secular left-liberal sections are divided on the issue as always. Present article tries to introduce secularist debates on the need and nature of UCC. 


The focus here is to establish that why reform in Muslim personal laws alone is not enough and why UCC should not be seen from a communal point of view but a secular attempt to fight against patriarchy and create equality. The first part deals with the history of the debates on UCC and the second part tries to highlight the central points.      

II
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.”[2] At the time of the writing of the constitution secular universalism was the basis of nation making process adopted by our law makers and hence it was no surprise that Indian constituent assembly adopted such aims. All the progressive forces were firmly behind the idea of uniform laws. This zeal was derived from liberal influences of English tradition, namely the “rule of law”. Mino Masani, one of the liberal members of the constituent assembly pointed out the danger of community based laws. There were also women members in the Constituent Assembly such as Hansha Mehta and Amrit Kaur who demanded a universal civil code as a protection of women rights.[3]  As a first step to that uniform civil code Ambedkar as law minister of India produced Hindu Code Bill in the parliament. This bill was a comprehensive attempt to ‘modernise’ and codify the Hindu traditions of marriage, family and inheritance. In 1947 when this bill was first proposed in the parliament a substantial number of legislatures, however opposed it. This was the first sign of problems which UCC was to face in the future.

The President of India at the time, Dr. Rajendra Prasad was vehemently opposed to any idea of state intervention in the so called Hindu traditions.[4] When Hindu Code Bill was finally introduced after four years of debate in 1951 the number of people who opposed it increased. Nehru, as Prime Minister of India proposed caution and waited for the 1952 elections to get a mandate from the people for such reforms. Ambedkar resigned from the cabinet due to reluctance of Nehru to push the bill at one go. Finally, the laws which came from the original Hindu Code Bill in 1955 and 1956 modified and codified the Hindu traditions of marriage, family and inheritance. The Hindu Right was furious despite the fact that Nehru’s cabinet had mellowed down the original bill in their favour. Once the laws were enacted Hindu Right used it as a tool of mobilization and polarization vis-à-vis minorities which still retained their personal laws. Nonetheless, the demands for universal personal laws were still raised by the left and liberal groups. The women movement in India fought for equal rights and forced the state to make secular interventions in the form of Dowry Prohibition Act of 1961 and Medical Termination of Pregnancy Act, 1971. All such laws were opposed by the religious groups including Hindus, Muslims and Christians. 

In the 1980s a new turn of global and domestic events turned the debates of UCC upside down within the left and liberal circles including the women movement. The rise of multiculturism and post-modernism in social sciences along with the rise of neo-liberalism influenced the policy approaches of states in the post-colonial societies too. The centrality of individual as a subject of universal laws is ‘modernist telo’ hence outdated and ‘regressive’ was a common refrain by enthusiasts of post-modernism and multiculturalism. For them left-liberal emphasis on universal individual rights is based on “wrong” notions of their autonomy. Individuals are ‘embedded’ in “particular social roles and relationships” and “such embedded selves do not form and revise their own conception of the good life; instead they inherit a way of life which defines their good for them”.[5] Hence, in the eyes of cultural relativism and multiculturalism, standing with the minority rights meant “defending cohesive and communally minded minority groups against the encroachment of liberal individualism.”[6] The process of ‘national building’ too moved significantly away from notions of universalism. Though extremist multicultural positions were later rejected by the left-liberal sections a more tolerant view of cultural differences was gradually being adopted throughout the globe. The democratic state need not impose one version of law on everyone and let the cultural differences be particularly when it belongs to the minorities. There are many unresolved debates among the left and liberal circles about the extent of specificity and universalism. However, it was obvious that the fight for universal individual rights and equality was on the back foot at the time.   

The Right moved opposite to that of the Left-liberal view once again. It did reject the whole idea of relativism and instead, became rigid Universalist albeit from a majoritarian point of view. The world witnessed rise of popular movements rejecting any project of tolerance propounded by multiculturists in the western societies. The Right in these societies based its campaign on fear mongering about minorities; internal as well as migrant. This deepened the crisis among the left further. Popularity of such rightwing rejection throughout the globe at the time forced more pragmatics among the left to either lie low or play with the gallery. This is not to suggest that the Right was ever tolerant. However, conservativism has always talked about ‘the respect of traditions’ and so on in the past. This particular stance changed in the 1980s as far as the Right is concerned. The Right was globally gripped in cultural paranoia and the left and liberal forces were ineffective if not invisible.  

1980s was an era of turmoil both economically and politically in India. The initiation of economic reforms was coincided by the aggressive rightwing assertion. The issues of Babri Masjid-Ram Madir agitation, rise of militancy in both Kashmir and Punjab, and the Shah Bano case etc were symbolic of the turmoil of the era.
      
1980s is hence the period in which the communal polarisation became severe due to rising inability or rather reluctance of the state to intervene. The concurrent events of Shah Bano and Ayodhya were classic turning points in Indian politics vis-à-vis the issue of universal personal laws. The polarization was complete between the Hindu and the Muslim rightwing. The RSS-BJP, more stronger and more articulate movements of the right than its predecessor Jansangh of the 1950s, led the Hindu attack with slogans of ‘minority appeasement’ and ‘pseudo-secularism’ with three fold demands of Ram Mandir, abolition of article 370 and UCC. It is very clear that the failure of the state in 1980s in maintaining the secular credentials in law provided solid ground to RSS-BJP politics. If we see carefully none of the issues raised by Hindu Right is related to political economy on the surface. Here the concerns of the liberal and the rights merged. May be, that was the first assertion of a kind of ‘Washington Consensus’ among Indian politicians.

The Muslim and Sikh rightwing too had a role to play in 1980s. The rise of Khalistan movement is well known and we need not to go into the details of it here as this had noting much to do with the UCC debate. Suffice is to say that, Sikhs were made part of the Hindu personal laws emerging from Hindu Code Bill in the 1950s and hence their grievances were similar to the Hindu Right. The Muslim Right, led by various ulemas and organisations including Muslim Personal Law Board and Jamat-i-Islami etc reacted to Shah Bano judgment more furiously than the Hindu Right in 1950s and 1960s when the Hindu personal laws were codified and somewhat modernised. This reaction, though limited to urban and so called educated sections among the Muslims was portrayed as universal Muslim rejection. It forced the government to intervene and nullify the Supreme Court Judgement in Shah Bano case. The government instead enacted Muslim Women (Protection of Rights on Divorce) Act in 1986.

This state intervention under pressure from Muslim Right strengthened the arguments of “minority” rather “muslin appeasement” by the Hindu rightwing. The demands of UCC hence became a tool for further polarization of the Hindus against the Muslims in late 1980s and early 1990s. The left and liberal forces both, due to acceptance of the ideas of multiculturalism and due to realpolitik considerations gradually desisted itself from raising the demand of UCC. During the first NDA regime 1998-2004 BJP did not have absolute majority and hence the UCC was never made a significant issue. However, today when BJP is in power with absolute majority in the Lok Sabha it is under pressure from the Hindu Right to push for UCC. The desperation shown by the BJP is also due to its failures to deliver on its main election agenda of development. There are no substantial achievements on the economic front in the last two years. It is but obvious that issues like UCC and ‘Pakistan sponsored terrorism’ are seen as saving grace by the pundits sitting in Jhandewalan and Nagpur. But is it that simple? Is the demand of common civil code has no merit for left, liberal and feminist movements? Are demands of common civil code and reforms in the Muslim personal laws same?   
    
III

Equality is one of the most celebrated values of enlightenment. Both the liberal and the left, despite their disagreements over the form and extent, agree that a modern society without equality is impossible. Indian constitution, a classic liberal text, recognises this beyond any doubt and makes several provisions for it most explicitly in part III. Feminists of all hues, if we agree to exclude the so called feminism of the religious right (both Islamic or Christian and Hindu in the present case), struggle for equality. Among many ways, universal personal law is also seen by many as an attempt to create the same equality. Perhaps that was the reason that the left and the liberal forces supported the demands for common civil code very early in post-independent India. One of the largest women groups in the country, All India Democratic Women Association (AIDWA) has supported the idea of universal secular laws for women across the religious divides. The internal left debate about multiculturism and cultural relativism is unsettling however. The arguments in favour of cultural relativism put forward by the pundits of multiculturism, if accepted, will do much harm to the projects of equality. It will be like accepting the demands of Khap panchayats to kill girls if they marry out of choice or let some burn their women in the name of Sati. Respecting differences cannot be an absolute in all circumstances. There must be ‘minimums’ defined through a democratic process for any society. If equality remains the universal value there can be no denial of the need of massive reforms in the respective personal laws on the secular lines or even on the lines of a common civil code.

It is often pointed out and rightly so that historically Muslim and Christian personal laws have been more progressive than the Hindu personal law which were only codified and modernised in 1950s. Some intellectuals of the left are fearful of the attempts to ‘Hinduise’ UCC in case it is adopted today when BJP is in power. This is a genuine concern. However, the point it not to create a UCC overnight but to agree in principle whether we want it or not? If we start debating its possibility and there is consensus we can always fight against any ‘cultural imperialism’. We can’t be postponing the debate forever.

It is a fact that Sharia had more provisions for the rights of women than any tradition or codes of Manu in terms of marriage, divorce and share in the ancestral property. However, post the reforms in the Hindu personal laws this ‘advantage’ is history. Thanks to interventions of secular judiciary from time to time, Hindu women have moved from no share to equal share in the ancestral property in 2005. They are now much ahead of a Muslim woman who still has right to one third share. Their share in the property of their parents has not moved since the seventh century.

However, a UCC is not specific to one community and if there are progressive elements in a community’s personal laws there should be attempts to retain it as a common law. The case for UCC is not for regression rather for progression. UCC would be an attempt to secularise the laws and see the women as women and not whether she is a Muslim woman or a Hindu woman. They both suffer if divorced without any means of subsistence. A Muslim woman should have the right to claim, if she wants to, an equal share in their ancestral property as any Hindu woman. She needs same rights to abortion as woman whether she is a Muslim, a Hindu or a Christian. She cannot be punished because she was born in a particular community. This is common sense. Of course there should be flexibility and space for the peculiarities of the individual cases. But, the need of equal justice is beyond any doubt and hence demands for secular universal laws or common civil code despite of the fact that rightwing is leading it, remains an important demand for Indian women movement.

Now the question arises, and this is a very significant question, ‘what would be the basis of universality’ in the common code? Some liberal and left intellectuals have an apprehension, as mentioned above, that since a rightwing government is in power they might try to ‘hinduise’ the common provisions of the code. This is a possibility but one should not throw the baby with the bath water. The common personal law, if at all actualised must be based on a democratic process in which the culturally harmless practices of marriage rituals of each community should be allowed to be. The main concerns of equality in marriage, family and inheritance must be based on the model of existing secular laws which are in turn based on the principle of rule of law where they are already available, as in the case of divorce and inheritance under Special Marriage Act of 1954. Where it is not available, it should be created with care and consensus. The possibility of hegemonic cultural influences on the common civil code can be minimised or eradicated if secular principles are adopted. For example, provision of polygamy in Islam is not a ‘harmless cultural practice.’ In fact it is not even a common practice among the Muslims. One can quote shuras from the Quran about the restrictions imposed on men to marry more than one wife but that does not theoretically eradicate the possibility. Again, one can debate whether we want universal ‘gender neutral polygamy’ or abolish the institution of marriage altogether. These are possibilities, if we agree that religion should not be the restricting element for either men or women. As far as divorce (Talaq) is concerned, there is a secular procedure available and all the culturally regressive and obscurantist practices including the practice of triple talaq need to go. No religious community can claim to have a superior personal law. Even the Hindu personal laws have problems of inequality and untoward benefits in the name of Hindu undivided family. There are shortcomings and patriarchal biases inherent in all of them. Common civil Code should be seen as addressing those lacunas from a secular women right’s perspective.     

There is another argument put forward by some scholars that due to gradual secularisation of laws and progressive interpretations by the courts from time to time most of community based personal laws are anyway universalised and hence there is no real need for a UCC. Rohit De argues that,

Legislative reforms in Hindu and Christian laws and the increasing juridification of the Muslim law have created a greater degree of uniformity among different personal laws. Secondly, there is more debate and dissent within communities and a concerted attempt to reform family law from within. Thirdly, new evidence suggests that gender inequality within the family bears a greater correlation to socio-economic conditions than the form of religious law. But perhaps, most importantly, the new areas of emphasis on family law reform address questions such as domestic violence which cut across community identities and concerns.[7]

The most popular example of such development is The Domestic Violence Act of 2005 and Dowry Prohibition Act 1961. Examples of how courts have interpreted the Muslim Women (Protection of Rights on Divorce) Act, 1986 in favour of women without any resistance from the Muslim men is also given. But the question remains, why should we leave it on the subjectivity or lawyers and judges to decide what should be an objective right of a woman?   

The question of pluralism and multiculturism is also raised. Let Muslim women decide if there should be reforms in their personal laws or not. Why should we impose it from outside? Then there is another question about who decides what is good and bad? Nivedita Menon argues, for example, that there are much ‘better’ provisions of Mehr and protection of second wife in Sharia than Hindu acts though Hindu right makes these provisions looks regressive. She argues that gender justice is not necessarily based on universal laws.[8] These are difficult issues to decide. However, we should not forget that pluralism and cultural relativism is two edged sword as pointed above. Mr. Wali Madani general secretary of All India Muslim Personal Law Board defends Tripal Talaq on the basis of pluralism.[9] The heads of Khap, when they expressed their opposition to the attempts by the Supreme Court to make them illegal by law, quoted similar grounds. There are multiple examples where the Hindu rightwing defends caste and gender oppression in the name of ‘pluralism’. On the similar basis Shah Bano was denied the allowance and often Child Marriage, Female Circumcision and even Sati has been justified. As argued above we need to see culture in a different light and pluralism should be no excuse to regression. This is not to argue that pluralism per se is unacceptable. But, as stated above, it cannot be an absolute. The reforms from within can take millennia. It all depends on circumstances. We should not forget the history of women right movement in India both during the colonial and post-colonial phases. All the struggles for gender justice had to face similar arguments and in all cases women movement has rejected them.  If a section of women from the Muslim community want their freedom and rights now can we ask them to fight within their community first? Did we do that in case of Sati, child marriage, widow remarriage etc in the past? There are many Muslim societies in the world who have modernised their personal laws by state intervention. In most of these societies the community did not take initiatives to change such laws. 

In the present case the demand for the reforms in coming from within the Muslim community. All India Muslim Personal Law Board (AIMPLB) is not giving even a sympathetic hearing to the demands. Instead there is a contemptuous rejection. It seems they are playing with the genuine insecurities, among the progressive sections within the community and that from the outside of it, emanating from the fact that BJP is in power to safeguard the interest of men. Is this not patriarchal arrogance?     

The achievement of common civil code is still far and it would not be simple either. The obscurantism in all religious groups is guided by patriarchy and not religion. Culture and religion are masks which patriarchy wears all the time. Cultural relativism is yet another sophisticated tool used by patriarchy against the movements for equality. One should be careful of not playing in the hands of one rightwing or the other particularly at the time in which we are living in India now. However, no fear should stop us from fighting and demanding what is just.

IV

The article 44 is in part IV of the Indian Constitution which is called Directive Principles of State Policy which is non-justifiable in courts. In this part there are also articles 39 (Common Good and Economic Rights of people), article 41 (Right to work and education etc), article 42 (Provision for Just and Humane Condition of Work and Maternity) and article 43 (Living Wages etc). This same part also has article 48 (Organisation of agriculture and Animal Husbandry) which asks the state to protect the cows and other milch and draught animals. The part IV A is about fundamental duties which in its entries (e) asks Indian citizens “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”. The passionate and enthusiastic call for common civil code and may be article 48 partially and none of the other issues mentioned in the same part of the constitution exposes the selective and parochial approach of both the Indian state and the citizenry like none other. The time is take them head on and not to be defensive in any manner. 


Notes and References


[1] There are some differences between the idea of a Common Civil Code and a Universal Civil Code theoretically. However, in this article it has been used interchangeably for the purpose of debate. 
[2] See A G Noorani’s (2015) excellent articles in Frontline on the debates in the constituent assembly and later court judgements related to this article. “Hindutva’s Stick”, November 24 and “Zeal and Poor Scholarship”, December 11
[3] De, Rohit (2013), “Personal Laws: A Reality Check” Frontline, September 6, 2013
[4] The Hindu Code Bill, Economic and Political Weekly, 24 December 1949, http://www.epw.in/system/files/pdf/1949_1/52/the_hindu_code_bill.pdf
[5] Kymlicka, Will (2002), Contemporary Political Philosophy: An Introduction, Oxford: Oxford University Press, P-336
[6] Ibid, P-337
[7] The Hindu Code Bill, Economic and Political Weekly, 24 December 1949.
[8] Menon, Nivedita (2016), “It Isn’t About Women”, The Hindu, July 15.
[9] Muslim Groups Reject Law Panel Move on Uniform Civil Code, The Hindu, October 14.

The Author teaches Political Science at Indraprastha College for Women, University of Delhi

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