This article has been written by Abhipsa Upasana Dash. Abhipsa is a third-year student at Symbiosis Law School, Noida.
It’s not a term that rolls easily off the tongue or can be heard in the ongoing conversations around us. Yet, a ‘uniform civil code’, or more conveniently, UCC, has been gaining currency in recent months. Last week, the flurry of criticism rose again when the ruling government asked the Law Commission to appraise the feasibility of bringing about a UCC.
The actual concept of one nation, one law is more than a neat hashtag and goes back to the initial days of drafting of the Constitution, when the issue was hotly debated—while some members of the Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, others believed that this was a goal to be gratified in stages. The directive principle—“shall endeavour to secure for citizens a uniform civil code”—was a compromise since the time was not right.The legal merits for desirability of Uniform or Common Civil Code for every Indian, regardless of his or her religious identity, are indubitable. In fact, it is one of the “Directives” to State as enshrined in Article 44 of the Constitution of India. This “Directive” does not come in conflict with Article 25 of the Constitution of India.
The time of incorporating UCC has never been right since the day we adopted the Constitution. Yet, a new wave seems to be riding the country. It’s a wave that is looking with considerable less tolerance and more understanding at existing gender gaps, particularly where personal laws and religion are concerned. As women increasingly start questioning the established stereotypes and notions, storming male-only mosques and “pure” temples, the courts prepare to look at existing inequities, has the time finally come?
Historically, two seemingly opposed constituencies- women’s rights groups and the right-wing parties and organizations- have been the brand ambassadors of the idea of a UCC. Despite, the first stage of reform of the personal laws of Hindus—giving women the right to choose or divorce their partners, some rights in the property of their fathers and husbands, abolishing bigamy—faced considerable opposition from the then Jana Sangh—the precursor of the BharatiyaJanata Party (BJP) as well as the RashtriyaSwayamsevakSangh (RSS) making it ironic that the push for a UCC now comes from the BJP.
But with congress’s track record in kind, the speculation is ripe that it will never live down the shame of pushing back the rights of Muslim women by passing the perversely named Muslim Women (Protection of Rights under Divorce) in 1986. The passage of the Act by the Rajiv Gandhi government effectively reversed a Supreme Court judgement that granted maintenance to divorced Muslim women.
Where do we go from here, and how do we move forward? Can we put aside past acrimonies and suspicions?
Several issues remain.
The first of these is the argument that it’s still not the right time. Muslims all over the world are under siege. Moreover, this government’s true intentions are always doubtful among the minorities in this country. Controversies over beef, saffronization of school and college curriculums, love jihad, and the silence emanating from the top leadership on these controversies have done little to instill a feeling of confidence. Can confidence be instilled again?
Second, while a UCC has remained a wonderful principle, nobody has actually spelt out what this common code will look like. What are the nuts and bolts of this law? Is it to take the ‘best’ practices from all religions and, if so, which ones? How would it deal with polygamy not just among Muslims but also Hindus and tribals? What will happen to the tax exemptions and breaks granted to the Hindu Undivided Family (HUF)?
One way forward is to look at the UCC in terms of gender reform, a line favoured by many, including myself. But there is a caveat here, too. Can you look at parity of law for all women without first looking at parity between men and women? For instance, says former additional solicitor-general Indira Jaising, will our law-makers consider a concept of shared labour in marriages that would necessarily mean an equal division of assets acquired in the life of a marriage in case of a divorce?
One argument in favour of a status quo and against a UCC is that secular laws are always given precedence over personal, religious codes. In the past 12 months alone, a two-judge bench ruled that Muslim women are entitled to maintenance beyond the iddat(roughly three months) period. It upheld a previous Allahabad high court judgement that “polygamy was not an integral part of religion”. It has questioned why Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others. Earlier still, it gave Muslim women the right to legally adopt children even though this goes against their personal law. However, justice cannot be dealt on a case-by-case mode.
There is another alternative—change from within. An end to practices such as triple talaq is already being demanded by social organizations. Law Board has not, so far, responded favourably even though an online petition by the BharatiyaMahila Muslim Andolan demanding a ban has already attracted over 50,000 signatures.
And yet, there can be no turning back, no drowning out of voices demanding justice. This Eid, the three-century old AishbaghEidgah in Lucknow opened its doors to women to offer prayers for the first time in its history. It was a tiny step towards what could be a new beginning.