A.J. Philip
On October 6, 2016, Justice BS Chauhan, a former judge of the Supreme Court of India and chairman of the Law Commission of India published a questionnaire on the advisability or otherwise of introducing a uniform civil code.
He begins his appeal quoting Article 44 of the Constitution which says, “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.”
I read with great interest the questionnaire which is seemingly innocuous. I was even tempted to fill it up and send it to the commission. Be that as it may, the state’s resolve to introduce the Code is contained in the Directive Principles of the Constitution, which are not legally enforceable.
They are rather like Mahatma Gandhi’s dream of ushering in Ram Rajya, which is like the Kingdom of God that Christians are fond of mentioning by quoting the book of Matthew. I understood that the Kingdom of God is Within You, when I read Leo Tolstoy’s famous book by the same title. By the way, at the spiritual level, no one influenced Gandhi more than the great Russian writer.
The uniform civil code is not the only one that figures in the Directive Principles. The Constitution also resolves to promote the scientific temper, reduce the inequality that exists between man and man and introduce Prohibition all over the country. There are many other objectives listed under this head. I selected three for my own convenience and to keep the column within limits.
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We see how the present government led by Narendra Modi has been promoting the scientific temper by claiming that Indians were the first to master plastic surgery by pointing out how Ganesh, the Lord of Success, obtained the head of an elephant.
This government has also been promoting the myth that the aircraft that Indians invented could fly forward, backward and sideward, not like the one invented by the Wright Brothers in which Modi constantly flies these days.
It is also to promote the scientific temper that the Union government is planning to set up a Ramayana museum at Ayodhya spending Rs 250 crore. As regards bridging the gap between the rich and the poor, one just needs to know how richer Adani and Ambani have become since May 2014 when Modi came to power.
On the question of prohibition, ask Oommen Chandy of Kerala or Nitish Kumar of Bihar as to what happened when they tried to introduce prohibition in their states.
That brings us back to the question as to why the Law Commission of India did not think of introducing a questionnaire on all the points mentioned in the Directive Principles. Why did it single out the code? Who prompted it to do so — Delhi or Nagpur?
As everyone knows, the BJP becomes unique only because of three specific demands it has been making. They are 1. Build a magnificent temple at Ayodhya, 2. Abolish Article 370 of the Constitution which extends some special privileges to Jammu and Kashmir and 3. Introduce a uniform civil code.
When Atal Bihari Vajpayee came to power as head of the National Democratic Alliance (NDA), the BJP made a solemn undertaking that it would not pursue any of those three demands to its logical culmination. Had it insisted on the demands, the government would have fallen.
During the May 2014 elections too, the BJP did not mention these demands. In fact, Modi gave the impression that he was interested only in developing the country into a mighty state and not building a temple for Lord Ram, who should live in the hearts of the people. (There are only a few temples where Ram is the presiding deity. One of them is in Jammu built by the Kashmir Maharaja.)
True, the demands were mentioned somewhere in the party’s election manifesto in fine print. Since the BJP succeeded in getting a huge majority in the elections, it has given the party the idea that it could fulfil those three promises.
Incidentally, all these three demands expect the Muslims to make a sacrifice. They should not protest against the construction of a temple at the spot where the Babri Masjid once stood.
By the way, the Directive Principles expect the government to preserve and protect historical monuments. Surely, such monuments included the mosque in question. The Muslims of Kashmir should sacrifice the special rights they enjoy in the state. Again, the Muslims should sacrifice their personal laws in the name of the uniform civil code.
The Modi government is too clever by half when it says that there is a difference between triple talaq and the code. What is triple talaq? It allows the Muslim husband to divorce his wife by uttering talaq (divorce) three times. Does divorce happen more among Muslims than among Hindus, Sikhs, Jains and Christians? There is little evidence to prove that. Also, a Muslim man cannot easily overcome familial and societal pressures to divorce his wife. He is as much a family man as a Hindu is.
True, if the Muslim husband and wife want to separate, they can easily separate. In contrast, a Christian woman can obtain divorce only if the man is incapable of consummating the marriage or it could be proved that he was suffering from an incurable disease before the marriage about which the woman was not told. Ditto for the man. The church does not accept divorce through mutual agreement.
Even when a Hindu husband and wife decide to separate legally, they have to wait for a long period to obtain a favourable decree from the court. In case one contests the decree, the divorce can take several years. There is also a fundamental difference between a Muslim marriage and a Christian or Hindu marriage. For the Christian, marriage is a sacrament but for the Muslim it is a contract between two parties. It is easier to end a contract than a sacrament.
True, triple talaq is not accepted in some Islamic countries like Pakistan, as pointed out by the votaries of the uniform civil code but, then, Pakistan is not the model that we need to follow. There are many Muslim women who are victims of triple talaq. The same can be said about many Hindu women who are unable to come out of difficult marriages because the divorce law is cumbersome.
Muslim women are often portrayed as victims of oppression and inequality. The fact is that they enjoy better rights to property than Hindu women. Female foeticide is so rampant in India that there are only 866 female live births in Haryana against 1000 male live births, according to a recent study. The report mentions that the sex ratio is much better among Muslims and tribals where women are not “stigmatised”.
In Haryana, which has the worst sex ratio, the situation is much better in the Muslim-majority Mewat district. Is not there something to learn from the Muslims on how they treat their womenfolk?
Those who frown at Muslims who protest against the plan to impose a uniform civil code should remember that the Hindus were far more vehement when the government codified the Hindu law. Among those who protested against it were the first President, Dr Rajendra Prasad. The code is part of the Sangh Parivar’s plan or dream to have a Single Country, Single Religion and Single language for the whole of South Asia which is what Akhand Bharat is.
Nepal had these characteristics when it was a Hindu Kingdom. Did it bring any prosperity to the country except to the King who was in cahoots with the royalists? On all human indices, Nepal always figured at the bottom. The BJP probably wants to make a Nepal of India. In fact, the Sangh Parivar had tried to defend the institution of the Nepal King like Gandhi who defended the Caliph though the Turks had no use for the institution.
The uniform civil code is a subject that was debated intensely in the Constituent Assembly. It was rejected because it was in conflict with the right to practice and propagate their religions granted to the minorities in the Constitution. This right which is part of the Fundamental Rights and which is enforceable by a court takes precedence over the Directive Principles.
It was as a compromise that it was mentioned in the Directive Principles. In India, criminal laws are uniformly applied. A Muslim and a Hindu are given the same punishment for the same crime. Somebody may point out that more Muslims were hanged to death than Hindus since capital punishment became a rarity.
In the case of Christians, they had certain special laws like the Travancore Christian Succession Act under which a woman had a share in the property of her father or Rs 5000 which was lower. The amount was fixed at a time when Rs 5000 was a princely sum. The law recognised dowry which was stated publicly and the woman had every right to claim it if the marriage collapsed for one reason or another.
With the abolition of dowry, which is now given secretly, a woman suffers more when her marriage fails. The Supreme Court has ruled that wherever there is a clash of personal law and secular law the latter will prevail. Christians cannot adopt, they can only be guardians.
The real target of the Sangh Parivar ideologues is the Muslim personal law which allows Muslim men to marry up to four times. They perpetuate the myth that every Muslim has four wives and each woman produces babies like a four-footed animal I do not want to mention here. How farcical the argument is! For every Muslim to have four wives, there should be 4000 Muslim female births against 1000 Muslim male births.
The fact is that every Muslim man cannot marry because men outnumber women. I grew up in a Muslim locality where there was not a single case of a man having four wives.
It is often touted that 90 per cent Muslim women want abolition of triple talaq and the Muslim man’s right to have four wives. It is forgotten that 90 per cent or more Muslim women live in monogamous relationships.
In fact, in absolute numbers, there are more Hindu men who have more than one wife than Muslims who have more than one wife. As a Muslim friend once quipped, “Muslims are so poor that they cannot afford to keep one wife, forget having multiples of them”. In Bihar where I lived for 10 years I came across many Hindu men who married a second time because they were not satisfied with the illiterate girls they were forced to marry at a young age.
A Union Minister who had a former air-hostess as his second wife had abandoned his first wife who lived in a Dalit basti in Vaishali in North Bihar. M Karunanidhi did not keep any secrecy about his second wife. What is not realised is that a Muslim’s second wife is entitled to some rights whereas the second wife of a Hindu has no such rights because the second marriage is not valid.
Also, people forget that when a Muslim man joins a government service, he forfeits the right to marry a second time because he is covered by government rules. He can do so only at the cost of his job. In other words, the personal laws are not sacrosanct. In India only Goa had a uniform civil code introduced by the Portuguese.
They were not as uniform as it was made out. For instance, the Catholics were governed by the canon law. In their case, ecclesiastical authorities had a greater say on matters of marriage, adoption, succession etc than the civil authorities. The Muslims are not the only ones to enjoy special privileges. The Hindu Undivided Family enjoys many tax benefits. The law simply does not recognise a Christian Undivided Family or a Muslim Undivided Family.
In the ultimate analysis, the whole issue is about a few Muslim men keeping more than one wife and some Muslim women who feel that they should have stayed with their husbands and not separated from them. For every such Muslim man there are several Non-Muslim men who keep concubines and for every such woman, there are several non-Muslim women who feel suffocated in terrible matrimony.
For the BJP, which laments over the fate of Muslim women, it is an issue that polarises voters. It knows that the heavens will not fall if the personal laws are allowed to continue. What is the ideal system? The khap panchayat system that the RSS advocates? Who is the ideal man or woman in India whom the rest should model after? How boring it would be if everyone dresses, speaks, eats and leads a family life like the Prime Minister or the RSS chief in the name of uniformity?
The writer, a senior journalist, can be reached at [email protected]