Must for gender justice
Source: By R D Sharma: Deccan Herald
Code must be drafted by jurists, social scientists and intellectuals from various communities, who have country's welfare at heart. The debate on Uniform Civil Code (UCC) has surfaced, once again, with the recent verdict of five-judge bench of the Supreme Court by 3-2 majority setting aside the medieval practice of instant divorce known as triple talaq or talaq-e-biddat in common parlance. The court deserves full commendation for undoing the gender injustice implicit in the archaic practice so effortlessly, within constitutional parameters as well as the Islamic canon.
For, the court has confined itself only to instant divorce leaving aside other contentious issues like polygamy and nikah halala unresolved which were also under challenge before it. Even two other forms of talaq —talaq-e-ahsan and talaq-e-hasan, that too are inherently discriminatory and fail the test of gender equality, have not been struck down. Hence the verdict doesn’t ensure complete justice for women of Muslim faith in the country. However, it presents an opportunity to initiate a debate on putting in place a common code that brings equality across faiths and gender. Former Chief Justice of India J S Khehar, in his minority ruling, pleaded for the same.
Against democracy
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. Just as Hindus, Jews, Christians and Parsis are governed by their own personal laws, so are the Muslims. As various provisions of these laws, based on scriptures, traditions and customs of religious communities, are not only outdated and highly discriminatory to women, they militate against the very essence of democracy, basic human rights and secularism at large. Therefore, the state should not distinguish between citizens on the basis of their religious beliefs and practices. Hence the need for a common code;
The issue of UCC is not new. It is as old as the Constitution. There was a fierce debate on this in the Constituent Assembly. However, keeping in view the considerable degree of apprehension among the Muslim members in particular, it was placed in the Chapter on Directive Principles of State Policy under Article 44 of the Constitution. It directs, non-bindingly of course, that the “State shall endeavour to secure for the citizens a UCC throughout the territory of India.” But for wholly extraneous reasons, various governments at the Centre refrained from implementing it despite sharp reminders from the Supreme Court from time to time. The BJP, after keeping this reform on backburner for long, now feels that there cannot be gender equality without such a code.
All this notwithstanding, any move in this direction is bound to be resisted by the politicised sections of the religious orthodoxy in almost every community on the plea that their distinctive identities will come under threat. But all such fears are clearly unfounded and baseless. For instance, the penal provisions of both the Hindu and Muslim laws have already been superseded by a uniform criminal code without any disruptive effects. The Special Marriage Act 1954 is a similar measure under which two persons of different communities can marry one another without changing their caste or religion. The UCC, if enacted, will operate as one of the key instruments by which the law of land can be made to prevail over customs of the minorities in matters other than those of faith.
In any case, the government will have to be very cautious and sensitive to the feelings of the minorities, especially Muslims, beset by a heightened sense of insecurity after the demolition of Babri Masjid and subsequent communal disturbances in Gujarat and Uttar Pradesh. Hence, any attempt to clumsily impose a uniform code on an unsettled minority could deepen the existing rift between the two communities. That no government in power at the Centre has so far initiated legislation on this aspect shows both a grasp of the politically explosive nature of the issue and a reluctance to run afoul of those who control critical vote banks.
Instead, the official policy has been to wait for reform from within the communities. But it never happened. The outcome has been a triumph of the ‘status quo’ with the rights of women being continuously compromised. It is, in fact, this injustice which needs to be rectified without further delay. The government will now do well to frame a model civil code incorporating all progressive aspects of different religions which can be circulated and debated on a national scale.
The UCC has to be an amalgam of the best of laws drawn from all over. Its drafting will have to be done not by government but by jurists, economists, social scientists and intellectuals from various communities, who have the welfare of the entire country at heart. And once the code is formulated, it is for them to spread the message across and win over the diverse dissenting groups. For a law -- however necessary, effective and easy to operate -- gets reduced to a mere paper tiger unless it is backed by strong and continuous public support.
Simultaneously, it is important to remove the doubt from the minds of minority communities that in the name of UCC, they are being saddled with Hindu law. The Muslim fear that the code will rob them of their identity is without any logic and substance. Law is one thing, religion quite another. It is the latter which decides one’s identity and UCC has nothing to do with it. The code will not dictate to anyone the mode of worship or decide the number of times one must pray. It will not determine what festivals to celebrate or what ceremonies, rites or rituals to observe.
For the code to serve any meaningful purpose, it should not end up as an enabling measure, applicable only to those who choose to abide by it. Such a proviso will certainly defeat its real objective as it cannot serve as an effective deterrent to those who abuse personal laws to commit crimes against women. One common law for all will also serve the cause of national integration. Since all sections of society will be equally affected by its enactment, no one will have any special cause for grouse or grievance, whatsoever.
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