Uniform Civil Code: Why only a tall leader like Prime Minister Narendra Modi can execute UCC in India

Decades back, in 1985, ex-Prime Minister Rajiv Gandhi destroyed the confidence and psyche of India’s Muslim women by overturning the Supreme Court’s 1985 verdict and denying Shah Bano, a hapless Muslim divorcee, a mere monthly alimony of Rs 179.

The wrongs by the Indian National Congress, and its late leader, Rajiv Gandhi, in 1985, were finally corrected, after 34 long years, under the astute leadership of Prime Minister Narendra Modi, when he ensured instant triple talaq was made illegal and unconstitutional. Ancient India’s civil codes have progressively evolved over centuries from the Vedas and Manusmriti, which are a comprehensive set of sermons and smritis by Manu, Bhrigu, Yajnavalkya and Narada. Regressive traditions, like polygamy, sati, child marriage, dowry and female infanticide stopped having legal or moral sanction in India or in Hindu customs, eons back. If Hinduism can evolve and change and become more progressive, what is stopping Muslims from doing likewise? Why this blindly illogical opposition to the UCC, from the likes of Owaisi of AIMIM?

Anyone who breaks the law has to face relevant punishment under suitable legal provisions if convicted. However, in the absence of UCC, large sections of the Muslim community have been following archaic practices which are regressive and should have no place in a progressive society. An argument often cited against UCC by Muslim religious fanatics is that the government should first do away with polygamy practised by some tribal communities and tax exemptions that are availed by Hindu Undivided Families (HUFs). Well, the counter-argument is simply the fact that the government of the day has enough powers, under the Constitution, to decide how to legislate and comparing tax exemptions available to a section of society with a regressive social evil,is as bizarre as it can get.

The problem, in the absence of an UCC, is that justice has to be served on a case-by-case basis, which is both impractical and time-consuming, whereas having a common civil code would remove the need to look at each case on its individual merits or demerits and ensure quicker justice. Also, very often, many victims from the minority community, or otherwise, have no access to lawyers and the courts and having a Uniform Civil Code will be a huge boon for such women who can expect and get justice as a matter of right because it is legally ordained, via a codified law under the UCC, without having to run to the Courts each time to make a case for an individual plea where they have been wronged.

The fact that personal laws run subservient to the Constitution,had been decided way back in 1996, in the divorce battle between Molly Joseph and George Sebastian, and the 2017 judgment against Clarence Pais only reaffirmed the 1996 verdict.The Supreme Court categorically stated that despite Christian marriages being solemnised by a parish priest in the church, as per the ‘Canon Law’ (Christian Personal Law), when it came to divorce-related matters, only divorce granted by courts under the Indian Constitution and under the Indian Divorce Act of 1869 are legally valid — family laws or church courts have no place in a democratic society, if such personal laws interfere with the basic tenets of the Indian Constitution.

Be it making Christian divorce laws ‘gender equal’ in 2001, or amending Hindu succession laws in 2005, if there can be a common criminal code, there is absolutely no reason why India should not have a common civil code too. UCC has been provided for under Article 44 of the Directive Principles. But since these principles are not legally enforceable, a suitable law is long overdue. Those who oppose UCC on the frivolous pretext that it will end India’s diversity and plurality, should know that family laws can never override the Constitution, which is the country’s only holy grail.For the sake of purely an argument, if legal sanctity alone is the yardstick, by that logic, all those from the minority community who enjoy various privileges under Article 29 and Article 30 of the Constitution would do well to know that the word ‘minority’ itself has not been defined in the Constitution.

The Motilal Nehru Report (1928) showed a prominent desire to afford protection to minorities but did not define the expression. The Sapru Report (1945) also proposed, inter alia, a Minorities Commission but did not define the term ‘minority’ and it was left to the wisdom of the courts to fill in this omission. However, despite a lack of a definition, the majority community has never grudged the minorities the array of benefits that they avail under Articles 29 and 30.

The recent Hijab controversy brought Uniform Civil Code (UCC) back into focus.The pro-Hijab lobby tried every trick in the book to support Hijab inside classrooms, under the guise of personal choice, religious practice, privacy and more. It is not the State’s job to dictate what citizens should eat, how they dress and how they conduct their personal business, argued this pro-Hijab lobby. Well, while it is not the State’s job to regulate personal decisions and individual liberty, the State can do what it deems fit in the interests of public order, morality and health. No fundamental right is absolute and every right comes with reasonable restrictions and certain dos and don’ts.

The Hijab controversy exposed the ugly side of left-fascists and radical Islamists who, under the garb of freedom to practice one’s religion granted under Article 25, wanted to challenge the basic tenets of the Indian Constitution. Had UCC been there,this pro-Hijab lobby would have never dared to tom-tom personal laws as a means to arm-twist the State, to its bidding. It is another matter altogether though, that this lobby lost out in the Karnataka High Court,which upheld the Hijab ban in classrooms. After a split verdict by the Supreme Court, in October 2022, the apex court directed placing all the appeals pertaining to the matter before the Chief Justice of India (CJI), for the constitution of a larger bench.

After the Sepoy Mutiny, while the Britishers left various personal laws unchanged,the Indian Christian Marriage Act of 1872, the Indian Divorce Act of 1869, the Married Women’s Property Act, the Hindu Inheritance (Removal of Disabilities) Act of 1928, the Special Marriage Act of 1923 and subsequently 1954, the Parsi Marriage and Divorce Act of 1936 and eventually the Hindu Marriage Act of 1955, were enacted to codify personal laws of various communities, pertaining to issues of marriage, succession, guardianship and maintenance.

Muslim radicals, however, resisted changes to their personal laws, leading to the Shariat Application Act of 1937. However, the Shariah was never codified, and hence, its legal standing tantamounts to nothing, despite the hullabaloo by the All India Muslim Personal Law Board (AIMPLB), which in any case,is simply another NGO with no legal sanctity, set up under the aegis of Indira Gandhi in 1973, for minority appeasement. Also, the AIMPLB is primarily a Sunni Muslim body and does not represent Shias, Bohras or Ahmadiyya Muslims. Hence, what it says is not representative of the broader Muslim opinion.

Much of the Shariah today owes its allegiance to radical schools of thought like Hanbali, Maliki, Shafi’i and the Hanafi school of thought, which was the governing diktat between 1664-1672 for the likes of Emperor Aurangzeb and other bloodthirsty Muslim invaders thereafter. While the Supreme Court declared instant triple talaq, unconstitutional on 22 August, 2017, Congress and other Opposition parties repeatedly stonewalled the triple talaq amendments in the Rajya Sabha to appease radical Islamists. But finally the Modi government ensured a ban on the horrific practice of instant triple talaq in 2019. How can an inhuman practice be justified as a matter of “personal freedom”? Had UCC been there,instant triple talaq would have become history, much earlier, but the Congress Party which ruled India for the longest time,always encouraged this heinous practice,for vote-bank politics.

There are many who claim that UCC is not the solution and that change should come from within but that is a hopelessly futile argument. Hence it is important and imperative to have legal deterrents in place as civilised societies work within legal frameworks and not on flaky “goodness from within” assumptions. The reason one keeps coming back to Muslim personal laws as a reference point is only because each time the UCC debate comes up, Parsis, Sikhs, Jains, Christians or any other religious community, never has any grouse or grievance. Even progressive Muslims do not have a problem with UCC. The only people that have a problem with UCC are the hardliners or radicalised Islamists, who justify gender discrimination and inhuman personal laws under the guise of personal freedom and liberty.

In the final analysis, a judgment relating to two warring parties of the Meena tribe, dated 7 July,2021, by a single judge bench of Justice Pratibha Singh of Delhi High Court, best sums up the need for a UCC where Justice Singh says –- “In modern Indian society, which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.”

In short, UCC is an idea whose time has come and only a tall leader with a towering stature like that of Prime Minister Narendra Modi, can execute this progressive idea. UCC is not about destroying diversity or plurality. It is only about ensuring uniformity and strengthening our social fabric whereby personal laws are subservient to the general good, in accordance with the time-tested democratic ethos of the Indian Constitution.

The author is an Economist, National Spokesperson of the BJP and the bestselling author of ‘The Modi Gambit’. Views expressed are personal.

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