(Hindustan Times
December 13, 2007)
Cracking the code
by Ramachandra Guha
Article 44 of the Constitution of India reads: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The first Prime Minister of India, Jawaharlal Nehru, and the first Law Minister, BR Ambedkar, were both modernists who wished to reform archaic personal laws and bring them in line with progressive notions of gender justice. They were both committed, in theory, to a Uniform Civil Code. However, faced with the bitter opposition of Muslim members in the Constituent Assembly, they decided to begin with the reform of the personal laws of the Hindus, a community whose liberal wing was both influential and articulate. All the same, it took them all of eight years to pass the laws that finally made caste irrelevant in marriage, allowed Hindu women the right to choose or divorce their marriage partners, abolished bigamy and polygamy among Hindus and granted Hindu daughters and wives rights in the property of their fathers and husbands.
The opposition to the reform of Hindu personal laws was led by the Jana Sangh (forerunner of today’s BJP) and the RSS. The RSS held hundreds of meetings throughout India, where the proposals to outlaw bigamy and to give women property rights were denounced in the strongest language. The Hindu Right claimed that, as one born in a low-caste home, Ambedkar had no business or authority to interpret or override the Hindu shastras. The laws being drafted to allow personal choice in marriage and inheritance rights to daughters were denounced as “an Atom Bomb on Hindu society”.
On the other side, the socialists and Communists chastised the government for not reforming the personal laws of all communities. In the Lok Sabha, a Communist member named BC Das called the new laws for Hindus “a mild, moderate attempt at social reform with all the hesitancy and timidity characteristic of all social measures sponsored by this government”. The great socialist parliamentarian, J.B. Kripalani, told the government that “you must bring it [the new laws] also for the Muslim community. Take it from me that the Muslim community is prepared to have it but you are not brave [enough] to do it”.
Such were the alignments in the 1950s; how different are the alignments now! For the last two decades, the BJP and the RSS have insisted that since the Hindu laws were reformed, the Muslims should also follow suit. The demand gathered pace after the Shah Bano controversy, and has figured heavily in the BJP’s oral rhetoric and printed publications through the 1990s and beyond. On the other side, those professedly secular parties, the Congress and the Communists, are now bitterly opposed to the framing of a Uniform Civil Code.
The debates of the 1990s and beyond have thus placed the major political parties in exactly the opposite positions as they had found themselves in the 1950s. Then, the Jana Sangh and the RSS had opposed the granting of equal rights to Hindu women; now, they say that they stand for equal rights for Muslim women. Then, the Congress and the Left had supported, and indeed had passed, personal laws in favour of the majority of Indian women; now, they say they are not in favour of a further extension to Muslim women.
It is difficult to credit the BJP with being seriously committed to ensuring justice to Muslim women. In its six years in office, it did not make the slightest attempt to introduce legislation in Parliament that would, for example, have abolished polygamy, enhanced the rights of widows and divorced women or mandated gender-neutral property and inheritance laws. This may well have been because to resolve the issue would have been to render it impotent as an electoral gambit. So long as the Muslims had their separate laws, it was easy to portray the community itself as separate, and hence not worthy of trust.
As for the Congress, in opposing a common civil code, it is deeply oblivious of its own history. The drafting and passing of a gender-sensitive civil code for all Indians would, in fact, only be a fulfilment of the Congress’s and constitutional legacy. Sadly, the two women who have led the Congress party for long periods (Indira Gandhi and Sonia Gandhi) have not — at least in this respect — moved an inch to enhance the rights of their fellow women citizens. Even more culpable in this regard was Rajiv Gandhi. The Supreme Court judgment in the Shah Bano case presented the government of the day with a marvellous opportunity to push through progressive legislation on behalf of all Indian women. Rajiv Gandhi had 400 MPs at his command; what he did not have was an understanding or appreciation of his own grandfather’s legacy.
The reform of family law has thus become deeply politicised, subject to the pressures of party politics rather than governed by the principles of gender justice or the ideals of the Indian Constitution. But, as Shabana Azmi has pointed out, “For far too long women have been victimised and justice has been denied to them under the pretence of personal law.” This is true of formal Muslim law but also of customary Hindu law, as in the still-powerful caste councils that ostracise women who dare marry outside their community. There is thus “an urgent need to cull out the just and equitable laws of all religions and form a blueprint for a uniform civil code based on gender justice”.
Azmi’s formulation allows us to alleviate the fear that any new, all-India law would be modelled on Hindu law alone. Jurists can work from first principles, in designing personal laws that do not discriminate by caste or gender or religion. To be modern, and Indian, we need surely to honour and uphold the essential principle of a modern democracy, which is also the guiding spirit of our Constitution, namely, ‘equality before the law’.
The first woman Chief Justice, Leila Seth, has persuasively argued that a common civil code “will help break down those customary practices harmful to women and give women individual identity as independent citizens of India”. To the fear that such a code would imperil religious freedom, she has this answer: “A uniform civil code will not take away the right to perform religious ceremonies and rituals; but would any woman object to a code that gives her equal property rights, protection from polygamy and arbitrary divorce, and the right to adopt and the right to inheritance even if her father or husband converts to another religion?”
These voices of independent feminists and liberal jurists have, however, been drowned out in the din of partisan politics. The BJP will speak of a Uniform Civil Code simply to spite the Muslims, but shall make no move to implement it, preferring to have the issue hang as a threatening Damocles Sword instead. The Congress and its allies will oppose a common civil code for reasons that are equally perverse — because the BJP claims to support it, and because they can then be seen as standing alongside the Muslim minority or, rather, with the priestly orthodoxy which professes to speak in its name.
The writer is the author of India after Gandhi: The History of the World’s Largest Democracy
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