India: Madhu Kishwar's open letter to PM Modi on how to break the UCC stalemate

An Open Letter to the Prime Minister,

Easy Solution to Stalemate over UCC--

Junk Hindu Civil Code & Adopt Existing Indian Family Laws

Dear Prime Minister Modi,

You have hailed the judgment of the Hon'ble Supreme Court on Triple Talaq as “historic” for granting equality to Muslim women and for “being a powerful measure for women empowerment.” This despite the fact that the convoluted & tortured 272-page verdict of Chief Justice Khehar pronounced that “Triple Talaq is a constitutionally valid mode of divorce being intrinsic to Islamic personal law and hence part of fundamental rights”. Interestingly, three other justices didn’t see this interpretation worth support. It’s a sad commentary on our secular democracy that a full Bench of the Supreme Court, which doesn’t have to go begging for Muslim votes, couldn’t muster the courage to take a firm view against abhorrent practices that even Islamic, theocratic countries have banned.

The fact that the mighty Supreme Court judges couldn’t make up their mind on the validity of Triple Talaq within Sharia leave alone its constitutional validity shows how ill equipped our secular courts are to don the mantle of qazis, mullahs & maulvis.

It defies comprehension why 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 is akin to having IAS officers delivering Friday sermons or lead Eid prayers.

As with much else, you have inherited this political mess from Congress government led by ultra secular Nehru who in 1950’s doggedly pushed through half baked reforms to create a Uniform Civil Code only for Hindus even though Ambedkar and several other leading lights of the Congress Party had insisted that India needed to live up to its promise of being a secular state and hence honor the Directive Principle enshrined in Article 44 of the Indian Constitution which clearly mandates that “the state shall endeavor to secure for all citizens a Uniform Civil Code throughout the territory of India”. But Nehru bestowed to Muslim Personal Law a status far above India’s Constitution and gave us a messed up version of Hindu Civil Code, which has had to be amended again & again with many new laws added in recent decades for protection of Hindu women’s rights in the family.

Do Only Muslims Follow Personal Laws? Most people rooting for the enactment of UCC are under the mistaken impression that only Muslims & Christians follow their customary laws. The reality is that even Hindus by and large follow the customary practices prevalent among their respective castes, sects and communities. For instance, despite amendments in the Hindu Succession Act that gives women equal inheritance rights, daughters in countless Hindu families don’t get any share in parental property. Instead, parents seek to “compensate” daughters by giving them dowry at the time of marriage, which has been declared illegal by the Dowry Prohibition Act.

Similarly, most Hindu communities continue to avoid intra-gotra marriages because they uphold this belief with passion that people belonging to the same gotra share a brother-sister bond. In their moral universe, a sagotra marriage is as good as incest even though there is no bar on sagotra marriages in the Hindu Marriage Act.

Likewise, the custom of marrying within one’s caste and community continues among Hindus, Muslims, Christians alike, even though neither Hindu nor Christian or Muslim law require people to marry within their caste. Tribal customary laws are lethally weighted against women without anyone daring to touch them because the issue is seen as politically volatile.

Breaking the Stalemate: The only way to break the stalemate on UCC is to undo the damage done by the Nehru-led government, which forced India’s secular courts to decide on family disputes on the basis of laws claiming religious sanction. The solution is much simpler than made out to be:
The following proposal made by me in 1985 at the time of Shah Bano controversy has the potential to break the stalemate on UCC even today, that too without coercing Muslims and Christians into reform. It also enables the government to follow the Directive Principle of our Constitution that mandates that mandates that “the state shall endeavor to secure for the citizens Uniform Civil Code throughout the territory of India”:

The secular courts of our country should stop adjudicating disputes on the basis of personal laws of any community—be it Hindu, Muslim, Christian or Parsi. Let’s junk all the laws containing a communal tag, including Hindu Civil Code.

The state should confine itself to adjudicating cases only under the already existing secular laws such as the Indian Marriage Act, Indian Divorce Act, Indian Succession Act, and Indian Wards & Guardianship Act. This will cancel out the need to enact a new Uniform Civil Code.
The existing “Indian” laws should be applicable to all citizens that decide to approach the secular courts, irrespective of their caste, creed, gender or religion. However, these laws may need to be carefully reviewed and improved in order to make them truly egalitarian and gender-just.
Those who wish to continue with the customary practices of their community claiming religious or customary sanctity should be free to do so provided they don’t expect secular courts of India to adjudicate and enforce their personal laws.
The onus of ensuring compliance with what passes under the guise of the Muslim, Christian, Sikh, or Hindu customary law should rest with the consensually accepted leaders of that community instead of putting it on India’s secular law courts.
However, if even one party to a family dispute feels wronged or dissatisfied with the verdict of the authority adjudicating customary law, that aggrieved person should have the right to approach the Indian courts where the dispute should be adjudicated only within the framework of secular laws & constitutional principles.


Laws Apply only When People Seek its Protection: Those who think this amounts to giving free hand to regressive elements within each community should 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, beating up one’s wife is a punishable offence. But if a battered wife chooses not to seek redress, the best of laws cannot be of help to her. Similarly, Muslim women who accept second or third marriages of their husbands are not going to benefit even if the arbitrary triple talaq is declared illegal.

There is now concrete evidence that when better options are available women don’t hesitate to avail of them. Today, a growing number of Muslim women are filing cases under the Dowry Prohibition Act as well as the law against domestic violence, even though these laws don’t draw legitimacy from the Holy Quran or the Shariat. Neither the AIMPLB nor any maulvi has dared prohibit Muslim women from doing so. This is because these laws don’t have the word “Hindu” attached to them.

The spontaneous, voluntary use of secular laws by affected women of all religions have had the salutary effect of bringing Hindu, Muslim, Christian, Sikh, Buddhist, tribal, non-tribal women on a common platform to fight for what are problems for women of all communities. Therefore, if we are serious about a Uniform Civil Code, let’s do away with laws with a communal tag and let the two systems compete with each other on the basis of voluntary compliance. Dumping Hindu Civil Code will also take the wind out of the sails of all those who allege that UCC is a ploy to Hinduise Muslims & Christians.

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This article was published in Economic Times, Sunday August 27, 2017

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http://economictimes.indiatimes.com/news/politics-and-nation/junk-the-hindu-civil-code-adopt-family-laws-madhu-kishwars-open-letter-to-pm-narendra-modi/articleshow/60238796.cms