COMMON LAW

Enacting UCC not to be easy for Modi government

muslim-woman-reuters Representatives of Muslim women say that while they want practices such as Triple Talaq and polygamy to be banned, they are not in favour of a common civil code | Reuters
  • Muslim religious representatives continue to be opposed to UCC, saying they doubt the intentions of the BJP government.

In 1985, the Supreme Court nudged the government to bring in the Uniform Civil Code. The context was the Shah Bano case, which brought the Muslim personal laws into debate and also gave rise to a huge controversy that culminated in the Parliament passing a law to overturn the court’s order that dealt with the issue of maintenance for Muslim women post-divorce. While the debate on the UCC was a by-product of the episode, at the centre of it was the issue of the rights of Muslim women.

Over three decades later, there is a renewed debate on whether a common civil code should be put in place for laws governing marriage, divorce, maintenance, inheritance and adoption. It is again the Supreme Court that has nudged the government on it, and yet again, it is the Muslim woman who is at the centre of the issue.

The Centre recently asked the Law Commission to prepare a report on the implementation of UCC, and it has cited the apex court’s directions to it in this regard. And the context in which this is happening is the SC deciding to test the Muslim personal law against the touchstone of Constitution and check if it violates the fundamental rights of Muslim women. The court has done this as it has decided to hear the pleas of two Muslim women – Shayara Bano and Afreen Rehman – against Triple Talaq.

Former Supreme Court judge K.T. Thomas said that UCC was actually a by-product of fundamental rights as spelt out in Article 14, which makes it clear that the state shall not deny any person equity before law and equal protection of the laws. “In this background, the question is whether women belonging to the Muslim community are being protected against denial of Article 14.”

Thomas further said that Article 15 prohibits the state against any discrimination against citizens on the grounds of religion and also sex, and also pointed out that Article 13 states that all laws, including any customary law, shall be void if it is inconsistent with fundamental rights.

Those who oppose the UCC say that it would violate the freedom of faith, guaranteed by Article 25 of the Constitution, which gives every citizen the right to follow his or her own religion, culture and customs. However, Thomas said all religious freedoms are subject to fundamental rights.

Those treading the middle ground say that while UCC is desirable and is mandated by the Constitution, it may not be practically feasible in a country like India. “It is a desirable thing to have from the Constitutional point of view. But in practical terms, it is not possible. It is a desirable goal spelt out in the Constitution, but there will be a lot of opposition to it,” said senior Supreme Court Advocate Lalit Bhasin.

Bhasin said much would depend on what view the SC takes as it deals with the issue of Muslim personal laws while hearing the petitions against Triple Talaq.

Meanwhile, Muslim religious representatives continue to be opposed to UCC, saying they doubt the intentions of the BJP government and also feel that the court is wrongly interpreting the Muslim personal laws.

Abdul Hamid Nomani of the Jamiat Ulema i-Hind said it was a ploy of the Sangh to homogenise the culture and rituals of all. “It is an election stunt. It is a social and Constitutional matter that is being sought to be turned into an election issue by political parties,” he said.

Nomani said the courts have wrongly interpreted personal laws through the prism of Article 14, that deals with the fundamental rights of citizens. “It is not a matter for the courts to decide. It is for the the state and for the community to decide,” he said.

Representatives of Muslim women say that while they want practices such as Triple Talaq and polygamy to be banned, they are not in favour of a common civil code. “We want reform in the Muslim laws. We want codified Muslim law. We are demanding what the women of other communities have got a long time back,” said Noorjehan Safia Niaz, founder of Bharatiya Muslim Mahila Andolan.

Niaz also said that there was an apprehension that in the garb of UCC, the Hindu Code Bill would be thrust upon other communities. “You also need to ask the Hindus if they are willing to give up the Hindu Code,” she said.

The UCC could well continue to be a mirage.

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