(The Law Commission has decided to solicit views from the Indian public on the idea of a uniform civil code. It has also invited religious and social bodies to share their perspectives on the same. The crux of the debate is whether the discourse for this 'reform' should involve religious leaders and other such groups, or be limited to the legislature and the judiciary. Is there a line? If yes, where should it be drawn? This article argues that the law commission's move is antithetical to a secular state. Read the counterview here.)
In 1978, when 62-year-old Shah Bano was divorced by her husband who was an affluent Indore lawyer, she began a battle to get 200 rupees as maintenance. The husband invoked Shariat law to contend that Islam did not sanction maintenance for a divorced woman beyond the 3-month iddat period. Through the many-layered processes, her husband dragged on the case till 1985 when the Supreme Court granted her a favourable verdict.
By that time, it was no longer about an elderly abandoned spouse and the 179 odd rupees that she won as maintenance in the High Court. Shah Bano’s cause had polarised a nation. To one section she became the torchbearer for the fight for gender justice and a uniform civil code and to another, she was a Trojan Horse used by the State to penetrate the hitherto impregnable fort of Personal Laws.
Chief Justice Chandrachud had waded into controversy by choosing to interpret the Shariat instead of sticking to the code of criminal procedure under which Bano had based her claim. For good measure, the court even advised Muslims to purge “their laws” of “time-worn” inconsistencies.
The fallout of Shah Bano was immediate. The Muslim Personal Law Board which had intervened in the case demanded a rollback. The government of the day tried to douse the flames by hastily enacting the Muslim Women (Protection of Rights on Divorce) Act 1986, which was in favour of Muslim women only to the extent of its title and in fact, tried to roll back the legal position taken by the apex court.
The sad footnote to this landmark decision is that Shah Bano, under intense pressure from “community” leaders, was forced to call a press conference and denounce her own verdict, claiming that she was ignorant and now had been ‘explained’ by religious leaders that what she had acquired through her epic legal battle was unIslamic.
The Battle for UCC
The battle for the uniform civil code had started early, that is, at the stage of the framing of the Constitution itself. However, given the climate of hostility engendered by a brutal vivisection of the country by Radcliffe’s scalpel, the founding fathers chose to simply flag the issue of a uniform civil code but listing it as a directive principle of State policy in article 44 of the Constitution.
Since then, the unwritten understanding has been that the demand for reform would have to originate from within the community. This is bizarre as under our Constitution it is the legislature that enacts laws and a ‘community’, be it a minority or majority, does not have any constitutional or judicial status.
This compact lasted for decades and the issue of personal laws remained in cold storage. However, in the context of the majority community, the compact was soon disturbed when Ambedkar attempted to introduce the Hindu Code. Many may recall how legislators from the Hindu community were riled up by the concept of divorce, the rights of women to inheritance, etc which were proposed to be introduced by the revolutionary code piloted by Babasaheb.
In respect of the Muslims, so far the personal law has remained untouched. The last major enactment prior to Shah Bano was the Application of Shariat Act, 1937. The said law directed that the Shariat would uniformly apply to Muslims across the Indian subcontinent overriding local customs such as those followed by kutchi and mapla Muslims. It was said that such a law was enacted by the colonial government at the behest of the Muslim League to unify the Muslims as a whole and to create a single constituency for the Party in furtherance of the imperial policy of divide and rule. Be that as it may, post-partition, the Indian subcontinent has witnessed a unique development. While India has reformed the personal laws of the Hindus, leaving the personal laws of the Muslims untouched, Pakistan and Bangladesh, on the contrary, have reformed the personal laws of the Muslims, leaving their minorities untouched by law reform.
Pursuit of UCC Since the Shah Bano Case
Returning to Shah Bano, the case marked a significant point in India’s quest for a uniform civil code. While the Hindu Maha Sabha and the Jan Sangh were proponents of the UCC from the beginning, a significant constituency that was advocating the UCC was the women’s rights movement in India. It was felt that the religion-based personal laws of all communities indiscriminately discriminated against their women.
However, the issue of gender justice and equality which spurred the women’s movement to fight for the UCC was eclipsed by communal considerations post-Shah Bano. This had a chilling effect on the women’s movement's cry for reform as it realised the issue was no longer about gender justice.
Since the Shah Bano controversy, successive manifestoes of the BJP have promised the UCC. The NDA government which ruled for over eight years significantly did little on this front, having to manage a collation government. The Modi government in its first term also did not take any major steps in this direction.
During this period, several petitions have been filed in court seeking directions for the government to actuate the UCC. When the present government returned with a strong majority in 2019, a certain urgency was demonstrated in respect of bringing about the UCC. Even in state elections, such as the recent elections in Himachal Pradesh and Uttarakhand, which have insignificant minority populations, the BJP made the UCC an electoral issue. The Uttarakhand government had also constituted a committee to draft a UCC for the state.
Antithetical to a Secular State
It is against this backdrop that the Law Commission of India’s public notice on the UCC raises eyebrows. Given that recently, this body has given a regressive report, asking for greater strengthening of the sedition law, one worries as to what exactly could be the motive behind the resurrection of the UCC issue.
Overtly, the Law Commission's invitation to the members of the public to share suggestions seems to comply with a participative and deliberate approach in lawmaking, which cannot be faulted at first blush. However, the invitation to religious and social bodies to share their views about personal laws is fraught with peril and only gives credibility to the proposition that so-called community leaders such as a Personal Law board or a Dharam Parishad or a khap have a veto right over any lawmaking, which would affect the citizens of India who may belong to that particular denomination.
In 2018, the Law Commission had already concluded that at that stage that there was no necessity to formulate any legal proposals for a UCC. However, the Law Commission under the present chairperson Justice Awasthi has issued a notice stating that three years had lapsed since the previous process, and the time was right to revisit the issue. Interestingly, as stated, instead of issuing a notice to the general public soliciting suggestions, the notice specifically refers to “religious organisations“. Such an approach is completely antithetical to a secular state and also confirms fears that the purpose of formulating legislative proposals for the UCC may not be actuated by concern for gender, justice, and equality, but to further a communal agenda.
No one can dispute that ideally a uniform civil code is a noble principle. After all, the personal laws of every community still discriminate against women. However, we live in trying times, when the idea of a pluralistic and diversity-promoting India is under attack. With the state weaponising all ‘independent’ institutions, there is a worrying trust deficit in the governmental process, including law reform. The need of the hour is to restore the confidence of the minorities in the rule of law and the intent of the government to treat all equally.
(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)