Uniform Civil Code and the Rajiv Gandhi precedent

Rajiv Gandhi carefully listened to what the shariat said on the subject

Prime Minister Narendra Modi raising the highly controversial issue of the Uniform Civil Code (UCC) is obviously a dog whistle aimed at rallying the faithful to his standard divisive agenda on the eve of the general elections scheduled for 2024, when the INDIA alliance threatens to derail his long run of electoral victories.

In doing this, he brings to mind the precedent of the Supreme Court in the Shah Bano case (1985), placing UCC in Article 44 of the directive principles of state policy on a higher level of imperative action than all other articles in the same part of the Constitution. Thus, while Article 39(c) directs that the state shall ensure that there is no “concentration of wealth”, Adani and Ambani have risen to the highest global levels on personal wealth scales while all indices indicate an obscene widening of income inequalities in India.

Faced with the fury of the minorities at the prospect of their personal laws being abrogated by a parliament in which they are woefully under-represented, Rajiv Gandhi found an ingenious way out of the conundrum. He reconciled the directive in Article 44 to “endeavour” to work towards a UCC and the requirement in Article 39 (a) to treat “men and women equally” with the continuation of community-based personal laws.

Illustration: Bhaskaran Illustration: Bhaskaran

This was the Muslim Women (Protection of Rights on Divorce) Act, 1986. The constitutional validity of the act was challenged by Danial Latifi, a highly respected jurist, through a writ petition filed in September 1986. A constitutional bench held, in a judgement delivered in November 2001, that far from “reversing” the Supreme Court’s Shah Bano judgement, the impugned act had actually “codified” that judgement. How?

Instead of denouncing Muslim divorce practice as seventh-century Arab “barbarism“, Rajiv Gandhi and his law minister, Ashoke Sen, actually took the trouble to carefully listen to and meticulously study what the shariat said on the subject. It was clear that Muslim personal law on divorce was actually highly enlightened in that provisions for monetary settlement were strictly laid down to ensure due compensation for divorce, and maintenance thereafter for the divorcee and her children was guaranteed by the male members of her family of birth, failing which the waqf was charged with taking care of the woman and her children. Complementing this was Muslim social practice that not only permitted but actually encouraged remarriage. (In consequence, a 2019 study by Abu Saleh and others found that 78 per cent of divorced Muslim women find another husband within two years of divorce).

The problem was the reactionary mullahs (clerics) who enforced the shariat in personal matters. To rectify this, Rajiv Gandhi’s 1986 act upheld the right of Muslims to their own personal law but brought its enforcement within the ambit of secular civil law by empowering magistrates to “order” state waqf boards to provide adequate maintenance to divorced Muslim women and their offspring, failing which the waqf authorities would be hauled before the magistrate.

For the past two decades, all Muslim divorce disputes are consolidated before the highest court of the land and even-handed justice dispensed to Muslim women who might otherwise have faced the most terrible gender discrimination. This shows the way forward. For instead of attacking the roots of ‘unity in diversity’ by calling out others as barbaric, which is what Modi’s dog whistle is all about, let our many different religious communities have their own personal laws but bring enforcement of gender equality within the civil jurisdiction of the courts.

Aiyar is a former Union minister and social commentator.