Drafting change: What the new ‘progressive’ intervention in Uniform Civil Code debate entails

The Indian Express explains the background of the Uniform Civil Code debate, and the significance of the citizens’ intervention

Written by Seema Chishti | Updated: October 18, 2017 10:06 am
Uniform civil code,  UCC draft policy, Uniform civil code draft policy, shah bano begum case, supreme court,  BJP on UCC,  indian express, india news, latest news  (From left) Law Commission head Justice (retd) B S Chauhan with musician T M Krishna, activist Bezwada Wilson, and lawyer Dushyant

Last week, a diverse group of eight Indian citizens submitted a draft Progressive Uniform Civil Code to the Chairman of the Law Commission. Indian Express explains the background of the Uniform Civil Code debate, and the significance of the citizens’ intervention today

What is the Uniform Civil Code (UCC)?

It is the idea that all citizens, irrespective of faith, should be governed by the same set of laws in ‘personal’ affairs such as marriage, divorce, succession and inheritance, and adoption. Currently, each religion has its own set of personal laws. Article 44 of the Constitution says, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” It is a Directive Principle of State Policy, not mandatory, but a directive towards a desirable end.

If it is not binding, how is it significant?

The significance is political. Jawaharlal Nehru made the modernisation of laws governing Hindu society (especially those perpetuating gender inequities) an article of faith, battling conservatives both within the Congress — including President Rajendra Prasad — and outside (such as the Hindu Mahasabha, whose leader and Nehru’s cabinet colleague Syama Prasad Mookerjee opposed gender parity). There were moments of crisis, such as in 1951, when Law Minister B R Ambedkar resigned after his draft of the Hindu Code Bill, putting men and women at par in matters of marriage and inheritance, ran into legislative roadblocks. Reforms picked up pace after the first Lok Sabha was constituted in 1952. However, Muslim personal laws were left alone — to give the community confidence, and time until they felt secure enough (after the trauma of Partition) to want to discuss social reform. Nehru’s successors put off pushing for a common civil code, and were seen by critics as being keen to bow to Muslim conservative opinion.

How did the UCC become an overtly political issue?

In 1985, the Supreme Court confirmed an order of the Madhya Pradesh High Court, which had enhanced the maintenance due to a Muslim woman from Indore named Shah Bano Begum, who had been divorced by her husband, Mohammed Ahmed Khan (Mohd. Ahmed Khan vs Shah Bano Begum And Ors). The order was seen as interfering with Muslim law, and the government of Prime Minister Rajiv Gandhi brought The Muslim Women (Protection of Rights on Divorce) Act, 1986 to overturn the judgment. The opposition BJP seized on this act of “Muslim appeasement” to push for the UCC as a core issue, along with Kashmir and building a Ram temple in Ayodhya.

The BJP’s aggression on the UCC — the fact that Atal Bihari Vajpayee’s NDA government went slow on the Code notwithstanding — has been read as an attempt to impose the “Hindu Code” on all minorities. As such, the UCC, despite the fact that it has been mentioned in the Constitution, has come to be seen as a Hindu Right idea, making all other groups uncomfortable.

And what is the reason personal law is being discussed now?

An immediate context was provided in August by the judgment of a five-judge Constitution Bench of the Supreme Court that declared instant triple talaq illegal, though not unconstitutional. Earlier in the year, during the UP Assembly election campaign, the BJP made a point about the condition of Muslim women, pitching its own purported outlook against practices such as instant triple talaq and polygamy, which appeared to be sanctioned by the custodians of Muslim personal law in India. Separately, the Law Commission headed by retired Supreme Court Justice B S Chauhan was mandated last year to work on a UCC, and to hold discussions with all stakeholders. The All India Muslim Personal Law Board refused to answer the questionnaire sent out by the Law Commission, as they found the process appearing to target Muslims alone — even though all personal laws fail the test of synchronicity with modern ideas of equality or the conduct of personal affairs. The Law Commission has now said its report would be ready only in 2018.

(It is important to note that the Special Marriages Act, 1954 allows for inter-faith marriages and a fair system for divorce, succession etc. for all Indian citizens, irrespective of faith. But very few Indians avail of it.)

Okay, and what is this new draft Progressive Uniform Civil Code?

Eight citizens — writers, artists, activists, an Armyman, a lawyer and two Magsaysay Award winners — have submitted a draft “Progressive Uniform Civil Code” to the Law Commission Chairman. Their move, based on the idea that a UCC must be progressive rather than majoritarian, has the endorsement of Senior Advocate Soli Sorabjee. “The Law Commission should obviate any apprehension that anything uniform would be majoritarian. Besides, its recommendations need to be farsighted and progressive,” the veteran jurist said.

A large part of the UCC debate so far — political, legal, theoretical — has taken place in a vacuum, with no draft being available at public forums. The draft put up by this group opens up a debate that conservatives on all sides would be reluctant to enter — underlining that anything that is uniformly imposed on citizens must necessarily be progressive, and must address all kinds of inequities and issues, not just religious ones, or those relating to women. It must be inspired by the most farreaching ideas in discussion, and must allow for marriages between all kinds of partners — male, female and transgender. The draft addresses the diversity of Indians and opens new debates, while significantly also speaking for individual rights. Article 44 has over the decades come to be seen as an issue of the Hindu Right alone — the draft Progressive UCC imagines an alternative that is neither Hindu nor majoritarian.

What has been the reaction to the Progressive UCC draft?

It has been welcomed by progressives who see it as an effort to break away from defending regressive practices in the garb of secularism, and to ensure that the alternative is not majoritarian Hindu. So, while polygamy and triple talaq go, so does the Hindu Undivided Family, a tax-saving device. Divorce is recognised as legitimate, which hits at the idea of saat janmon ka saath. It opens the door, even if indirectly, to a more open view of marital rape by seeing marriage as a partnership, not as the enforcement of “conjugal rights”.

There is a view that no Uniform/Common Code is, in fact, needed — each personal law can be different, as long as it is modern, and fair to all within the community. Other critics have called for “more consultation”. That, however, is for the Law Commission to do. The authors of the Progressive Code say they have put an idea in the public domain, which is intended to start a discussion.

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