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Uniform civil code: will it work in India?

It needs to be asked if it is possible or practicable to reconcile divergent laws andformulate a uniform or common code acceptable to all the communities

Article 44 of the Constitution — which talks of a uniform civil code for all Indians — was the subject of a recentdebate in Chennai.

The main argument of those who spoke in favour of such a code was that it has the potential to unite Indiabecause Hindus and Muslims had followed the “common customary Hindu civil code” smoothly till 1937 when “theMuslim League-British combine” divided them by imposing sharia on Muslims through the Muslim Personal Law(Shariat) Application Act.

But only a minuscule minority of Muslims followed Hindu customs before 1937. Even this section had the rightunder laws such as the Cutchi Memons Act, 1920 and the Mahomedan Inheritance Act (II of 1897) to opt for“Mahomedan Law”. As for a majority of Muslims, there is enough evidence to show they followed Muslim law, notthe Hindu civil code.

In 1790, when Governor-General Cornwallis introduced a three-tier court system in Bengal (which wassubsequently extended to other parts of India) he included qazis and muftis as “law officers” to assist Britishjudges. The highest criminal court of this system, Sadr Nizamat Adalat, was assisted by the chief qazi of thedistrict and two muftis. In cases pertaining to Muslims it had to apply Islamic law as per the fatwas of these lawofficers, which were binding on the court. The British judges had to wait till 1817 to overrule the fatwas when aresolution was introduced to repeal their binding character (Rudolph Peters: Crime and Punishment in IslamicLaw).

Before Cornwallis, Warren Hastings had decreed in 1772 that in matters of inheritance, marriage and other suchreligious affairs “the laws of the Koran with respect to the Mahomedans and those of the Shastra with respect tothe Gentoos [Hindus] shall be invariably adhered to.” (Richard Shweder & Others: Engaging Cultural Differences).Even when the Indian Penal Code was enacted in 1860, Muslim personal laws were left untouched.

However, these laws were sometimes superseded by antiquated customs that had acquired the force of law. Forexample, as per prevailing custom, property received by a woman as inheritance or gift was not hers and had tobe given back to the heirs of the last male owner [Muhammad v. Amir (1889) P.R. 31, cited in Mulla, Principles ofMahomedan Law]. As such customs deprived Muslim women of their property rights in Islam, Muslims wantedonly Muslim law to be made applicable to them.

Act of 1937

The Shariat Act of 1937 was the result of this demand. It repealed all such provisions in earlier legislation thatpermitted custom to override ‘Mahomedan law’ in cases where the parties were Muslims. But the British did notimpose this Act on all Muslims. It was made applicable (per Section 3) only to those Muslims who declared inwriting their intent to come under it. This explodes the myth that it sought to divide Indians on communal lines.

Nevertheless, a comparative study of the personal laws of Hindus, Muslims and other minorities will reveal thatthe sheer diversity of these laws, coupled with the dogmatic zeal with which they are adhered to, cannot permituniformity of any sort. In fact, the heterogeneity of Hindu law itself is such that even the possibility of a uniformHindu code is ruled out.

Talking of marriage alone, under the Hindu Marriage Act, 1955, marriages may be solemnised in accordance withthe rites and ceremonies of a variety of people who come under the definition of a Hindu. For instance, accordingto the saptapadhi form of marriage that is followed mostly in northern India, the marriage is deemed to be

complete and binding when the couple take seven steps around the sacred fire.

On the other hand, in the south suyamariyathai and seerthiruththa forms of marriage are followed. Under these,the marriage is valid if the parties to the marriage declare in the presence of relatives that they are marrying eachother, or if they garland each other, or put a ring on each other’s fingers or if the bridegroom ties a thali around theneck on the bride.

Rites and ceremonies

Also, for a marriage to be valid under Hindu law it has to be solemnised in accordance with the customary ritesand ceremonies of at least one of the parties. Thus, if a Jain marries a Buddhist by performing the rites of a Sikh,the marriage is invalid (Sakuntala v Nilakantha 1972, Mah LR 31, cited in Family Law by Paras Divan). In Muslimlaw there are no elaborate rites or ceremonies, but Sunni and Shia practices differ.

It, therefore, needs to be asked if it is possible or practicable to reconcile these divergent laws and formulate auniform or common code that is acceptable to all communities.

India already has an optional civil code in the form of the Special Marriages Act, 1954. This, read with similar Actssuch as the Indian Succession Act, 1925, provides a good legal framework for all matters of marriage, divorce,maintenance and succession for those who may wish to avoid the religion-based laws.

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Why I Support The Uniform Civil Code

The Supreme Court has once again set the cat amongst the pigeons on the matter of a Common Civil Code.Gloating and breast beating has commenced on all sides of the politico-social spectrum. As an Indian Muslim Iwould like very much to be heard....

The Supreme Court has once again set the cat amongst the pigeons on the matter of a Common Civil Code.Gloating and breast beating has commenced on all sides of the politico-social spectrum. As an Indian Muslim Iwould like very much to be heard.

Let’s get some ridiculous myths out of the way first:

Myth 1: All Muslims are opposed to a Common Civil Code.

Clearly, this is not the case. I am one who is not, as are many others.

Myth 2: The Muslim Personal Law gives Muslims some great benefits that are being withheld from non-Muslims.

Nothing can be further from the truth. The personal law only gives Muslims the right to be governed by Shariahprinciples in the personal matters of marriage, inheritance, property rights and religious observance. Commercialand criminal law is the same for all Indians.

So why do I support a common law for all Indians in civil matters? For four very good reasons.

First, there are at least six schools of jurisprudence among Muslims, four among Sunnis and two among Shias.The Indian Muslim Personal Law is a curious amalgam of principles from different schools, but most particularlythe Hanafi branch of Sunni legal belief.

While most Indian Muslims are from this sect, our so-called Muslim Personal Law does not cover large numbersof Muslims, who prefer their own interpretation of Shariah law. Therefore, this is hardly in conformity with pureKoranic practice, as the more extreme elements among the Muslim clergy would have us believe.

Second, I believe the most important demand that Muslims should make in secular India is that we are treatedequally. That we have equal rights and opportunities as all other Indians and that the State will afford us the sameprotection of our rights and property as it would Hindus. I do not believe Muslims can make that demand when atthe same time we want to be treated differently in matters of personal law. This is an irreconcilable inconsistency.

Third, at least half of all Muslims are badly served by the Muslim Personal Law. Triple talaq, no rights tomaintenance (thank you, Rajiv Gandhi!) and subordinate rights of inheritance are all examples of how my Muslimsisters labour under an unfair and, dare I say it, unIslamic set of regulations. I have a daughter and if she shouldwant to marry a Muslim it will be under the Special Marriages Act, thank you very much.

And lastly, this ridiculous Muslim Personal Law is a convenient stick for Hindu communalists to beat Muslims with.Giving us the right to be governed by our own personal law gives them the right to claim that we are some kind ofprivileged minority with a suspect commitment to the Indian Republic. Take away the law and deprive PravinTogadia of the stick.

However, I would also like to raise two very specific and critical qualifications to my support of the Supreme Courtmention. We cannot move towards a Common Civil Code without absolute clarity on these matters:

One, understand and do something about the fundamental reasons why Indian Muslims cling to their ownPersonal Law. Deep within the psyche of the Mussalman is a fear of disenfranchisement, of complete loss ofidentity and marginalisation within Indian society.

Two, every time you burn homes in Gujarat, every time you treat Urdu as an alien tongue, every time a Muslimboy loses a job opportunity thanks to discrimination and every time Mr Togadia hints darkly at ‘the enemy within,’you compound the siege mentality.

When everything is taken away, goes the ghetto belief, let us cling tightly to what we are. The Muslim PersonalLaw, sadly, has become one of the symbols of identity, an identity under threat.

A Common Civil Code must imply that ALL citizens are covered under the same laws on civil and commercialmatters.

Let us dismantle at the same time, special privileges under the Hindu Undivided Family provisions as also anyspecial laws governing the personal affairs of Christians, Parsis, Jains, Buddhists, and Sikhs as well as othergroups like the Nairs of Kerala who follow the principles of matrilineal descent.

Do away not only with Muslim Personal Law but also other laws on the statute books that grant legal sanctity tounique practices of the diverse communities of India.

As an Indian Muslim I wholeheartedly support the idea of a Common Civil Code. It is a fair and equitable DirectivePrinciple of the Constitution of India. Let us, however, understand this matter in its entirety, away from thehysterical jubilation and frantic wailing of communalists on both sides.

One people. One law.

Yes, for sure!

Tariq Ansari is Managing Director, Mid Day Multimedia, Mumbai.

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Ambedkar And The Uniform Civil Code

'I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover thewhole of life and to prevent the legislature from encroaching upon that field.'

During the debates in the Constituent Assembly, B.R.Ambedkar had demonstrated his will to reform Indian societyby recommending the adoption of a Civil Code of western inspiration. He had then opposed the delegates whowished to immortalize personal laws, especially Muslim representatives who showed themselves very attached tothe Shariat:

"I personally do not understand why religion should be given this vast, expansive jurisdiction, so asto cover the whole of life and to prevent the legislature from encroaching upon that field. After all,what are we having this liberty for? We are having this liberty in order to reform our social system,which is so full of inequities, discriminations and other things, which conflict with our fundamentalrights."

However, Ambedkar did not obtain anything more than an article of the Directive Principles stipulating that:

"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory ofIndia."

This recommendation was to remain a dead letter, notably because the minorities – to begin, with the Muslims –took a hard line on their personal law. Many Congress members also opposed a reform of Hindu practicesconcerning inheritance, marriage (and divorce) and adoption, as shown by the fate of the Hindu Code Bill.

This phrase refers to a project aiming to reform traditions of the Hindu society. The British had drafted such a textin 1946 but they had had no time to get it adopted. In 1948, Nehru entrusted the drafting of the new code to a sub-committee of the Assembly and nominated Ambedkar as its head. The latter got written in it fundamental principlessuch as equality between men and women on the question of property and the necessity of justifying concretely apetition for divorce – a procedure which belonged too often until then to a case of a repudiation of the wife by herhusband.

This questioning of the customs governing the private life of the Hindus aroused a profound emotion, not onlyamong the traditionalists of the Hindu Mahasabha, but also among leaders of the Congress as prestigious asRajendra Prasad, who, after being president of the Constituent Assembly had become the first President of theIndian Republic. Prasad, in a letter to Patel, who himself showed strong reservations vis-à-vis such reforms of theHindu traditions, rose against a project whose "new concepts and new ideas are not only foreign to the Hindu lawbut are susceptible of dividing every family".

Jawaharlal Nehru was attached to this code in which he saw, quite as Ambedkar, one of the corner stones of themodernization of India. He even announced that his government would resign if this bill was not passed.Ambedkar pressed him to submit it as quickly as possible to Parliament. The Prime Minister asked him for a littleof patience and even split the Code into four subsets for defusing the opposition before submitting it to theAssembly on September 17, 1951.

The debate which followed confirmed then the hostility of the most traditionalist Congressmen. After four days ofdiscussions, Ambedkar gave an ardent speech where he went as far as to question the morality of Lord Ram andhis wife Sita and mentioned that the extra-marital relationship of Krishna and Radha was as indication of the

degraded condition in which Hinduism maintained its women. This brought the most conservative electedmembers to become even more critical of him. They retorted back through T. Bhargava that Ambedkar wanted thislaw to legalize his recent union with a Brahmin nurse. He had indeed married, in April 1948, Dr. Sharda Kabir, oneof the doctors whom he had consulted, in 1947, when his work at the head of the Drafting Committee hadprovoked a rapid deterioration of his health.

Finally, on September 25, the portion of the Hindu Code Bill concerning marriage and divorce was deformed byamendments and finally buried without Nehru uttering the least of protest. Considering that he had not beensupported enough by the Prime Minister, Ambedkar sent him his letter of resignation from his government on 27September.

In a press release published a little later, Ambedkar attributed Nehru’s backtracking to the pressures of theCongress: "I have never seen a case of chief whip so disloyal to the Prime Minister and the Prime Minister so loyalto a disloyal whip…." Actually, Nehru apprehended that the Congress MPs would reject this project en bloc and/orthat the President of the Republic, Rajendra Prasad, would really carry out his threat to refuse to promulgate it asa law.

It is utterly significant that Ambedkar chose to leave the government of Nehru on the issue of the Hindu Code Bill.It shows indeed that, while he believed in the political path of social reform from above, this approach did notcontent itself with a simple constitutional frame but implied concrete implementation questioning the logic of thesocial system. Now, if a large number of the Congressmen approved the constitutional framework of the Indiandemocracy, they were not prepared to support these tangible advances questioning the social status quo.

Extracted from Christopher Jaffrelot's forthcoming book, "Ambedkar and Untouchability - Analysing and Fighting Caste", to be published by Permanent Black in 2004.