March 23, 2017

India: Madhu Kishwar's proposal to the Right -- Here’s how a Uniform Civil Code can be introduced without coercing minorities

The Times of India

Break the stalemate: Here’s how a Uniform Civil Code can be introduced without coercing minorities

March 23, 2017 

Given the unequivocal stand of the Narendra Modi government in its submissions to the apex court, it is very likely that the Supreme Court will outlaw triple talaq. However, this will not bring BJP any closer to its manifesto promise of introducing the Uniform Civil Code (UCC).
Most people rooting for enactment of UCC are under the mistaken impression that only Muslims and Christians follow their customary or religiously ordained laws. There are countless examples to establish that customary practices have not vanished among Hindus, despite countless reforms introduced since the 1950s codification of laws.
Hindus by and large continue following customary practices prevalent among their respective castes, sects and communities even though laws enacted by the state for the Hindu community have been totally secularised. For instance, most Hindu groups avoid intra-gotra marriage because they consider people belonging to the same gotra as sharing a brother-sister bond. Therefore, sagotra marriage is treated as bad as incest even though there is no bar on sagotra marriages in the Hindu Marriage Act.
It defies comprehension why the supposedly progressive Nehru government chose to institutionalise the practice of India’s secular courts doling out justice as per religious laws of different communities, even though Article 44 of the Directive Principles of state policy in the Indian Constitution clearly mandates that “the state shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India.”
It is equally puzzling that those who defend the divine sanctity of Muslim Personal Law have willingly submitted to adjudication by India’s secular courts where non-Muslim judges unfamiliar with the intricacies of Islamic law and zero knowledge of Arabic decide matters ostensibly based on Sharia and Quran. It’s as good as having IAS officers manage the affairs of mosques and deliver Friday sermons or lead Eid prayers.
Today even raising this issue threatens to tear asunder the Indian polity because all self-styled secular parties have tarred this constitutional promise as part of BJP’s Hindutva project. Hence the virulent stalemate over UCC. But the solution to this contentious problem is actually quite simple.
I present below a proposal i had offered in 1985 soon after the furore that broke out with the Supreme Court judgment in Shah Bano case. It has the potential to break the stalemate on UCC without either coercing Muslims and Christians into reform or compromising the constitutional promise of equal citizenship rights to all. Its points can be summarised as follows:
India’s secular courts should stop adjudicating disputes on the basis of personal laws of any community – be it Hindu, Muslim, Christian or Parsi.
Instead, the state should confine itself to adjudicating cases only under the existing secular laws such as the Indian Marriage Act, Indian Divorce Act, Indian Succession Act, Indian Wards & Guardianship Act. These should be applicable to all citizens that choose to approach secular courts, irrespective of caste, creed, gender or religion. But these laws need to be carefully reviewed and improved in order to make them egalitarian and gender just.
Those who wish to continue with religio-customary practices of their community should be free to do so provided they don’t expect India’s secular law courts to be saddled with the burden of adjudication and enforcement. Let the onus of ensuring compliance with customary laws rest with consensually accepted authority figures of that community – be it the local imam or granthi, the family priest, caste panchayat or the spiritual gurus of the concerned sects.
However, if even one party to the family dispute feels dissatisfied with the verdict of the authority adjudicating customary law, he/she should have the right to approach the secular courts where the dispute should be adjudicated only within the framework of secular laws applicable to all.
Those who think this amounts to giving a free hand to retrogressive elements among Hindus, Muslims, Christians, Sikhs, Parsis would do well to remember that family laws enacted by the state, including provisions of the Indian Penal Code, come into play only when someone invokes their protection through the police and law courts.
For example, the current law against bigamous marriages among Hindus works in favour of only those Hindu women who choose to sue their husbands in a court of law. A Muslim woman who accepts the second or third marriage of her husband or doesn’t legally lodge a complaint after being arbitrarily abandoned is not going to benefit even if the arbitrary triple talaq is declared illegal. This is true not just for India but also for countries that give no legal recognition to Muslim or Hindu Personal Law as India does.
There is now concrete evidence that when better options are available neither Muslim nor any other group of women hesitate from availing of them. Today a growing number of Muslim women are filing cases under Dowry Prohibition Act as well as the laws against domestic violence, even though these laws don’t draw legitimacy from the Holy Quran or the Shariat.
Neither the All India Muslim Personal Law Board nor any mullah or maulvi has dared openly prohibit Muslim women from doing so. This is because these laws don’t have the word “Hindu” attached to them.
Though these community neutral laws have several flaws, they have had the salutary effect of bringing Hindu, Muslim, Christian, Sikh, Buddhist, tribal and non-tribal women on a common platform to fight for what are common problems for women of all communities. Therefore, if we are serious about a UCC, let us do away with laws with a communal tag and let the two systems compete with each other on the basis of voluntary compliance.