Several ministers are said to have cautioned Prime Minister Narendra Modi against pushing for the implementation of a Uniform Civil Code (UCC) without holding a comprehensive debate on this contentious issue. Union Minister of Urban Development Minister M Venkaiah Naidu has repeatedly emphasized the need to have a debate on the “common civil code” and stressed that the government will move forward only after a broad consensus has been formed.
Minister of Parliamentary Affairs Mukhtar Abbas Naqvi reiterates the same point of view stating that “the need of the hour is to debate this issue at length across all forums in order to create a consensus. Such a debate must take place at the grassroots level. We must understand all the divergent viewpoints before any draft can be prepared.”
No comprehensive debate has taken place on this subject in the last one year. The matter of a UCC has been referred to the Law Commission which will hold consultations with various stakeholders including consultations with the personal law boards of the Muslims, Christian, Sikh, Buddhist and Parsi communities.
However, it’s believed the NaMo administration may take a strong stand on the issue of triple talaq. The government may put forth over the next week that it believes that the system of triple talaq is not in conformity with the Shariat. Such a stand may be validated by the example of over 20 countries including Saudi Arabia, Pakistan, and Indonesia who do not allow triple talaq.
The All India Muslim Personal Law Board (AIMPLB) has already informed the Supreme Court in early September that “personal laws cannot be re-written in the name of social reforms,’ insisting that “personal laws cannot be challenged as violative of Part III of the Constitution.” Their stand is that issues of personal law are for Parliament and not the Supreme Court to decide. The Uniform Civil Code is a directive principle and not enforceable. Personal laws are protected by Article 25, 26 and 29 of the Constitution as they are acts done in pursuance of a religion.”
A Bench of Chief Justice of India T.S. Thakur and Justices A.M. Khanwilkar and D.Y. Chandrachud has admitted the petition filed by Ishrat Jahan, a native of Howrah, with a batch of petitions filed by several Muslim women, women’s rights organisations and the Supreme Court’s own suo motu PIL to consider whether certain practices of marriage and divorce under the Islamic personal laws amount to gender discrimination. These include triple talaq, nikah halala and polygamy.
Dr. Ranjana Kumari of the Centre for Social Development believes that whatever verdict the highest court may give, ultimately a decision on this matter will require an act of amendment by Parliament. ” It would have been better for the government to have adopted a comprehensive approach to this issue rather than tackle it piecemeal.”
Kumari regrets that though in the 1970s and early 1980s, women’s groups had pushed for a Uniform Civil Code in order that women discriminatory laws in the areas of marriage, divorce, inheritance, guardianship and adoption could be done away with it, nothing was done.
“When the Status of Women Report was placed before the government way back in 1975, there was near unanimity on the need for an all embracive Uniform Civil Code which would look at the contentious issues of marriage, divorce, guardianship, inheritance, custody of children and adoption. Unfortunately, that opportunity was missed by us,” Kumari recalls.
This unanimity has now ended. Not only are political parties tugging in different directions but women’s groups and legal luminaries believe that passing the initiative on to the present government may see them pushing through a `common Hindu code’ in the guise of a UCC. Supreme Court lawyer Rebecca John believes that Article 44 included in Part 4 of the Indian Constitution, lists the Uniform Civil Code as one of the Directive Principles which cannot be enforced by any court.
“There is an overall thrust to have a common Uniform Civil Code, but it is a fallacy to think that the Hindus have a common law and it is this existing law of north India which must be codified into a Uniform Civil Code,” says John.”This is part of the bullying of north Indian against other Hindu communities,” she feels.
Elaborating, John points out, “The Hindu Marriage Act and the Hindu Ascension Act are practices of north India which received primacy over the eastern and southern states. Are Hindus willing to give up the beneficial aspect of the Hindu Undivided Family which has been used for tax exemption purposes?” she asks.
Vani Subramanian, an activist from Saheli, emphasizes that we need to understand that the Hindu common law can hardly be defined as democratic. “There is a move now for women to try and negotiate for more rights within their own personal laws. Women are struggling to bring about reform within their own religious practises and that is significant,’ explained Subramanian.