There is a widely held belief that the promulgation of a uniform civil code (UCC) will establish equality between sexes, communities, and the citizenry at large. Our lived experience with uniform laws, however, has not been pleasant. Notwithstanding the well-intentioned assumptions associated with the concept of a uniform civil code, the truth is that legal uniformity does not ensure justice for all. Before elaborating on that aspect of the debate, it must be noted that it is a myth that India has a uniform criminal code that is totally irreligious in character. The same is borne out of more than one hundred amendments that have been made in the Criminal Procedure Code (CrPC) by the various states. In Punjab, the Indian Penal Code (IPC) was amended as recently as in 2018 by citing religious sensitivities. Indeed, it can be conceded that there is a certain degree of broad uniformity when it comes to criminal laws. Despite that, India’s criminal justice system has functioned in the most brazen and discriminatory fashion. A mere glance through the religious background and caste affiliation of prison inmates reveals that the vast majority of people who’ve been at the receiving end of the state’s ire are Dalits, Tribals, Other Backward Classes, and Muslims. In places such as Uttar Pradesh, Uttarakhand, West Bengal, Karnataka, Assam, etc., the percentage of Muslim undertrials is disproportionately higher when compared with their stake in the respective state’s population. Former President APJ Abdul Kalam also made a mention of the prejudicial manner in which the state functions. While in Rashtrapati Bhavan, Kalam discovered that “almost all” the convicts on death row whose mercy pleas were pending with his office were in that predicament due to the system’s ingrained socio-economic bias.
Factors precluding the enactment of a uniform civil code
Under Article 44 of the Indian Constitution, it is mentioned that the “state shall endeavour to secure for the citizens a uniform civil code” throughout its territory. But the relevant Article has not made the given task a binding constitutional obligation. The concerned provision also prima facie contradicts the constitutional protection accorded to Naga and Mizo customary law and procedure. By means of Articles 371A (1) (A) & 371G (A), the Mizos and Nagas have been guaranteed that a law promulgated by the Union Parliament in relation to Naga or Mizo customary law won’t be applied in the states of Nagaland and Mizoram, respectively, without the approval of their state legislatures. In a uniform civil code, there are not supposed to be any exemptions or special provisions for a particular group of citizens. The code is required to be uniform through and through. Its enactment, therefore, would run afoul of the above-cited provisions of Article 371 and create a constitutional anomaly. Courtesy of Article 25 (2) (a) of the Constitution, the state possesses the power to regulate or restrict political, economic, financial, or secular activities associated with religious practice. Although the direct implication of this provision is apparent, it also implies indirectly that certain religious practices having a bearing on the temporal domain will continue unhindered in the country. Such a scenario is recognized by the Constitution. Pursuant to that admission, the state cannot exercise its authority to regulate or restrict religious practices concerned with the material world in an arbitrary fashion. It must have sound and constitutionally tenable grounds for doing that. By relying upon the above-cited Article, certain facets of personal laws can surely be regulated or restricted. That becomes all the more obvious by having a look at the succeeding subclause of the said Article which refers to enacting laws for ushering in social reforms and welfare.
Nonetheless, Article 25 (2) (a) does not empower the Union Parliament to wholly abrogate personal laws. Countermanding each and every secular activity connected with religious practices is not envisaged by it. On the contrary, it accords constitutional protection to religious practices influencing temporal actions that are in tune with the existing constitutional order. As a result, a non-binding direction issued to the state under Article 44 for securing a uniform civil code cannot override the constitutionally guarded right of citizens to carry on with reasonable religious practices which touch upon the secular sphere. In India, legal experts, politicians, media commentators, and novices have sought to drum up support for a uniform civil code by claiming that ours is the only country where personal laws happen to be in operation. The given assertion is totally bogus and misleading. Legal diversity is a global phenomenon. Muslim personal law, in particular, is legally recognized in numerous majority non-Muslim countries. These include the Philippines, Singapore, Thailand, Myanmar, Ethiopia, Tanzania, Kenya, Uganda, etc. In neighbouring Pakistan, the personal law of non-Muslims including Hindus is expressly safeguarded by their Constitution. Bangladesh, another country with which India has a shared history, has likewise secured the personal laws of non-Muslims through statutory means. Therefore, the argument that India is somehow unique when it comes to not having a uniform civil code is inadmissible. Conversely, India happens to be in the company of nations that value pluralism and seek to forge unity in diversity through legal pluralism as opposed to legal uniformity. That they continue to have religious divisions and societal problems is also an undeniable reality. Having said that, legal uniformity is not the panacea for their ailments.
Issues sidestepped while debating the UCC’s feasibility
Besides explaining why the uniform civil code should not be viewed as a tool to further marginalize the marginalized, the votaries of the UCC must also care to address some of the issues that hinder the enactment of the same. For instance, how will the prohibited degrees of marriage be determined by the legislature? Cousin marriages do not take place among Hindus but they do happen in Muslim families. It is fairly common in Andhra Pradesh and Telangana for a Hindu woman to get married to her maternal uncle. Unions of this nature, however, are disallowed in Islam. North Indian Hindu families also desist from formulating such matches. If it is decided that the UCC will not stipulate the prohibited degrees of marriage, does that mean that the law will recognize incestuous unions between a father-daughter, mother-son, or brother-sister? Going further, would these couples be entitled to receive government benefits? Supposing that cousin marriages and marriages between a woman and her maternal uncle are outlawed for everybody, how will the state deal with people who would henceforth contract such marriages by relying upon custom? If a judicial decree is passed to separate such a couple, will it not violate their individual liberties? There is a possibility that the prohibited degrees of marriage might be finalized by taking into account unions that are unanimously held as invalid by different communities. In case that happens, only marriages between siblings and parent-offspring will stand proscribed for sure. Nonetheless, the social acceptability of unions approved by law but which are not sanctioned by faith or tradition will remain low.
Not a single government representative has thus far been able to demonstrate how the UCC will delineate the prohibited degrees of marriage. Another important aspect of the debate relates to the fancy tax breaks that Hindu joint families presently enjoy due to Hindu personal law. The government must clarify whether these tax concessions will be continued exclusively for the Hindu community, extended to others, or abolished entirely if it decides to go ahead with the promulgation of a uniform civil code. Although the last option might appear desirable to many, it will have unwanted economic repercussions for Hindu joint families especially those who are into trading. The control and management of religious endowments is one subject that is altogether ignored while discussing the suitability of a uniform civil code for this country. Religious endowments are not merely limited to places of worship and graveyards. Often, they enter the arena of secular activity. Religious endowments dedicated to the establishment and administration of schools, colleges, and hospitals are a case in point. Their usufruct accrues to a large number of beneficiaries and entails significant sums of money. The question is whether the UCC will overwhelm all existing laws concerning religious endowments and apply to every sort of dedicated property. If so, the legislature will have to craftily strike a balance between state oversight of religious endowments and religious autonomy. In this regard too, the government’s plan of action has not been made public.
Challenges associated with the continuance of Muslim personal law
Almost every column which is published about UCC harshly and disproportionately criticizes the existence of Muslim personal law in India. Equal attention is not given to dissecting the customary laws of the Nagas and Mizos or the personal laws of the Hindus, Sikhs, Christians, or Parsis. Those championing the need for a uniform civil code by relentlessly attacking Muslim law are wholly unaware of the provisions of the much-maligned Muslim Personal Law (Shariat) Application Act of 1937. If they had read the relevant legislation, they would have gained zero knowledge of Muslim law. All that the given Act does is grant limited recognition to the uncodified law of Islam. Some aspects of Muslim personal law have, nevertheless, been codified through other statutes.
According to the Muslim Personal Law (Shariat) Application Act, 1937, when the parties involved are Muslims, a matter relating to marriage, divorce, inheritance, or religious endowments can be settled by relying upon their religious law. While the largely uncodified nature of Muslim personal law poses significant problems for the judiciary, it provides the bar as well as the bench with a great deal of jurisprudential flexibility when dealing with matters that come under its purview. The Muslim Personal Law (Shariat) Application Act of 1937 has not defined Muslim law. No mention is made of the books from which the law is supposed to be derived or the weightage to be provided to the miscellaneous legal manuals and Hadith texts. The statute is silent about the course of action to be followed when a dispute governed by its provisions arises between two Muslims who hail from different sects, sub-sects, schools of jurisprudence, or religious movements. On account of these salient features of the relevant statute, the courts enjoy an enormous level of freedom while interpreting Muslim law. There is nothing stopping the courts from not perpetuating a patriarchal and antiquated reading of Muslim law. It is their job to interpret the law in an egalitarian fashion to ensure gender justice besides preserving individual rights and freedoms.
During the middle part of the nineteenth century, the Ottoman Empire strove to modernize itself. Interestingly, the series of reforms that they initiated included the promulgation of a new civil code. The document which was prepared under the leadership of Ahmed Cevdet Pasha relied heavily on the views of Hanafi jurists owing to the empire’s patronage of that school. Nevertheless, the drafting committee at times gave primacy to those juristic views which suited the requirements of their times. Occasionally, they also did not shy away from borrowing opinions held by non-Hanafi legists. By taking a cue from the said approach of the Ottomans, judges of Indian law courts will be able to better manage litigations concerning the application of Muslim law.
To further explain the given point, let us dissect the issue of nikah halala. A woman who is given an instantaneous triple divorce by her husband is ineligible for remarriage with him. She becomes eligible to remarry her former husband only if she gets married to another person and that wedlock is dissolved later post-consummation. The intervening marriage is not supposed to be a makeshift arrangement. It was always required to be a regular marriage entered into with the purpose of lasting companionship. Unfortunately, over time a racket developed. Divorced couples desperate to reunite following the execution of a triple divorce were exploited by ungodly men. They perpetuated the practice of nikah halala whereby the divorced woman got married to another man for a limited period. The person in question would quickly consummate the marriage and divorce the lady the next day. Resultantly, the concerned woman becomes eligible for remarriage to her previous husband who had divorced her thrice. Though the census does not collect data about groupings within the Muslim community, it is generally stated that the majority of Indian Muslims are Sunnis who subscribe to the Hanafi school of jurisprudence.
Those Hanafi jurists who evaluated the contentious debate surrounding nikah halala through the perspective of philology held that the custom is loathsome but valid. They arrived at that conclusion with the help of a Prophetic saying (Hadith). Abu Yusuf, the main student of Abu Hanifa, however, equated the practice of nikah halala with temporary marriages (muta). Since the latter are proscribed in the Sunni sect, Abu Yusuf maintained that marriage contracts labelled as nikah halala are invalid. Malik ibn Anas, the eponym of the Maliki school of jurisprudence, which is exceptionally popular in Africa, held a marriage termed as nikah halala to be void. He spoke about rescinding these dubious marriage contracts both before and after consummation. He also clarified that a woman does not attain the permissibility to remarry her divorced husband by undergoing this charade of a process. Tomorrow, if the court adjudicates upon the specified issue, it is well within its jurisdiction to discourage and entirely stamp out the practice of nikah halala by citing the views of Abu Yusuf and Malik. Indian courts are not bound to always adhere to opinions expressed by Hanafi jurists. Besides Hanafis, India is home to a significant number of Shias and Shafi‘is. The religious movement of the Ahl-e-Hadith is quite popular amongst the masses too. Given the diverse demographic makeup of the Indian Muslim community, the courts shouldn’t hesitate to look beyond Hanafi jurisprudence to resolve vexed problems. Following years of criticism, the practice of talaq-e-biddat or instantaneous triple divorce was eventually invalidated through the intervention of the Supreme Court in 2017. The situation would not have worsened to that level had the courts de novo drawn on the positions taken by Zahiri, Jafari, Ismaili, and Ahl-e-Hadith jurists. Their legal authorities did not recognize the unilateral pronouncement of triple divorce by the husband in the first place.
The Zahirites argued that a triple divorce pronounced in one go by the man has the effect of a single divorce. Once that opinion is accepted, problems that could emerge subsequently are automatically taken care of. The possibility of nikah halala would be ruled out as the separated couple remains eligible for remarriage without the need for an intervening marriage with a third person on the part of the woman. That is the great advantage of pronouncing one divorce at a time as well as the upside of the Zahirite position of deeming an instantaneous triple divorce as amounting to one divorce. Therefore, the courts ought to accord preference to reasonable, rational, and authentic interpretations of Muslim law. On the issue of polygamy, it must be asserted that a woman has the right to stipulate in her marriage contract that her husband is not allowed to take a second wife. If the man consents to that stipulation at the time of signing the contract, he is required to fully abide by it as mentioned by Abd al-Rahman al-Awza‘i, a famed jurist from the eighth century. All that the state authorities, viz., the legislature, executive, and judiciary, need to do is to mandate the inclusion of a column pertaining to the permissibility or impermissibility of polygamy in every nikahnama or marriage contract. They should also specify that the said column cannot be left blank. If that is done, Muslim women will singlehandedly resolve the matter of polygamy at the community level prior to their respective marriages. The second thing which must be explicitly stated in every nikahnama is that the marriage will not be dissolved without an attempt at reconciliation through arbitration. The proposed scheme of mediation between the estranged parties through one representative each is envisioned in the Quran itself. It liberates Muslim women from the likelihood of putting up with a one-sided, reckless, and hasty divorce procedure. The authorities must recognize this wise provision of Muslim law and institutionalize it for the betterment of Muslim women.
Much of the discourse around personal laws in the country has been shaped by the apex court’s verdict in Muhammad Ahmed Khan vs. Shah Bano Begum. In that case, the Supreme Court (SC) basically dealt with the question of providing maintenance to a divorced Muslim woman beyond her waiting period (iddat). The issue at hand involved the crisscrossing of personal law and the Criminal Procedure Code. The decree of the SC in the pertinent case was succeeded by the passing of The Muslim Women (Protection of Rights on Divorce Act), 1986, by the Union Parliament. That measure on the part of the then government has been the focus of fierce scholarly debates (and not-so-scholarly discussions). There is a general impression that the Rajiv Gandhi-led government attempted to annul the Shah Bano Begum verdict through the above-mentioned statute. Upon perusing that legislation, it seems that the legislative intent was to create alternate arrangements for the maintenance of a divorced Muslim woman following the lapse of her waiting period. Her children, parents, miscellaneous relatives, and the State Waqf Board are sequentially required by the Act to shoulder the responsibility of maintaining her in case she does not have the means to support herself and chooses not to get married again. In accordance with the said Act’s provisions, a case of this nature can be decided by the dictates of the CrPC when both parties agree to its application. The point to be noted is that the constitutional validity of The Muslim Women (Protection of Rights on Divorce Act), 1986, was challenged by Danial Latifi who had previously served as Shah Bano Begum’s counsel. After much delay, a five-judge bench of the apex court, however, upheld the Act’s constitutionality. A few critical remarks were made here and there but the bench absolved the legislature of the charge of having undone that which was propounded by the SC in Shah Bano Begum’s case. The judgement went on to add that the applicable statute “in reality codifies what was stated in Shah Bano’s case” by the apex court.
Before passing away in 1992, Shah Bano Begum also withdrew her claim for maintenance. It is difficult to say what compelled her to react that way. She might have been under tremendous societal pressure or she could have also had a change of heart because of inflamed religious passions. Thus, the jury is still out vis-à-vis that entire episode. Herein, it should be added that the traditional stance is that the husband owes the obligation of maintaining his divorced wife during the waiting period only. Still, one must highlight the liberal view that it is not proven through textual evidence that providing maintenance to one’s divorced wife beyond the waiting period is forbidden. Apart from providing maintenance during the iddat, the Zahirites contended that the husband is also liable to bestow his wife with a gift of consolation at the time of divorce. Malik ibn Anas recommended doing that as well. Such a gift is supposed to be in tune with the man’s financial capacity. Relying upon these interpretations, the courts must acknowledge the given duty of husbands and create an additional source of sustenance for divorced Muslim women. The amount to be paid in the form of “gift of consolation” should be determined by the courts while being cognizant of the resources the divorced woman requires to support herself until remarriage or death. The settlement money ought to be paid by the husband either in lump sum or installments if he is incapable of disbursing the total amount in one go. In the event of the latter route’s adoption, the installments could go on for a time period greater than the woman’s iddat. Regarding inheritance under Muslim law, there is understandable consternation at the unequal shares of the daughter and son. What is not well known is that a person can gift his entire property inter vivos to his children without paying any regard to their sex. Likewise, an individual can exclusively gift a part of his estate to his daughter. While internal mechanisms exist in the Muslim law of inheritance for dealing with a range of scenarios, the state can provide Muslim citizens with the added option of having recourse to secular laws if they are not satisfied with their share in the inheritance.
Concluding remarks
We must realize that the authority to interpret Muslim law in India rests with the judiciary. One can validly counter-argue that judges are not theologians. They cannot be expected to deduce accurate rulings from religious texts. When there will be a codified statute at their disposal, the judges will not experience much difficulty in interpreting Muslim law. It is humbly stated that expecting judges to possess considerable knowledge of both secular and religious law is not an impossible ask. One of the greatest legal minds that our country has produced was Dinshah Fardunji Mulla. He authored numerous works including commentaries on the Code of Civil Procedure, Hindu law, and Anglo-Muslim law. Many of his writings, which were published in the early decades of the twentieth century, continue to be well-regarded and widely cited in our courtrooms. The most interesting part is that Dinshah Fardunji Mulla was a Parsi by faith. Yet his legal understanding encompassed enviable knowledge of religious laws which did not apply to Zoroastrians. At the end of the day, the judiciary must endeavour to balance religious freedom with constitutional morality and fundamental rights guaranteed to every citizen irrespective of the mandate of personal laws. We are certainly not asking the state to ignore misogynistic traditions in the realm of personal law. What is being objected to is the wholesale dismantling of personal laws and their supplanting with a uniform civil code. The continual employment of personal laws should not be viewed in a negative sense. Their usage does not turn Article 44 of the Constitution into a dead letter. As Professor Tahir Mahmood once said, Article 44 has made securing a uniform civil code the responsibility of the state. Pursuant to the same, the stated goal should be met through the collective efforts of the state’s three organs.
For the same, the Union Parliament does not need to promulgate an overarching legislation. The desired objective can be realized by reforming and modernizing personal laws gradually while being conscious of uniformity. Numerous state governments are today busy devising plans for enacting a uniform civil code in the areas under their jurisdiction. These state governments are mistaken in behaving this way as the counsel in Article 44 relating to the securing of a uniform civil code applies to central authorities. That is evident from the invocation of the words “throughout the territory of India” and doing that is something which goes well beyond the jurisdiction of state governments. Moreover, if every state legislature will promulgate its own UCC, the very purpose of their exercise will stand defeated as uniformity would go for a complete toss with the emergence of multiple civil codes at the state level. We should also realize that uniformity does not guarantee gender justice. The common civil code in Goa which is increasingly being hailed as an exemplar by liberals and communalists alike has its fair share of patriarchy. It empowers a Hindu man to practice bigamy if his wife is unable to bear him a child by the time she turns twenty-five years old. The husband can also take a second wife in case his first wife specifically fails to give birth to a male child until the age of thirty. The imitation of the Goa Civil Code by the Union Parliament will undoubtedly lead to the mainstreaming of objectionable practices. We must also clarify that what we have in Goa is a common civil code as opposed to a uniform civil code. These are two distinct concepts. A common civil code, while being a single piece of legislation, may have separate and exclusive provisions for a particular set of citizens. Now that is a scheme which UCC puritans cannot admit. Thus, as a concept, a common civil code happens to be much more flexible than a uniform civil code. But our discussion is about the latter and not the former.
The critics of personal laws insist that their existence in a secular democracy fosters religious separatism, communal disharmony, and national disintegration. They further opine that holding on to such religious laws is indicative of a lack of faith in the Constitution and the undermining of the legal system. Those who peddle these kinds of arguments forget that personal laws have been integrated into our legal system and are duly recognized. Such detractors of personal laws are, howbeit, never found questioning the exemptions which can be granted to a Scheduled Area from union and state laws through the Constitution’s Fifth Schedule. Under the Sixth Schedule, autonomous districts and autonomous regions are also insulated from ambit of the Code of Criminal Procedure and the Code of Civil Procedure except for in select matters. In the states of Meghalaya, Tripura, and Mizoram, the President through a public notification can make any law enacted by Parliament inapplicable or applicable with certain exceptions and modifications to an autonomous district or autonomous region. This too is set out in the Sixth Schedule. Despite the enshrining of such special privileges for Northeastern states in the Constitution, family laws, particularly Muslim personal law, are singled out for criticism. The barbs usually directed at Muslim personal law by politicians lack academic merit and simply reflect their Islamophobic mindset. Vociferous advocates of legal uniformity should get in touch with leading corporate arbitrators. They would be aghast to know that Indian corporate houses are increasingly resolving their disputes through arbitration. One legal academic noted that arbitration proceedings are regularly held abroad in places like Singapore. Corporate disputes involving astronomical sums of money and which have grave financial ramifications are mediated in foreign lands through the application of European laws. The arbitration decree awarded is, thereafter, implemented here in India by giant-sized companies.
By opting for this path, corporations avoid long-drawn legal battles before the courts. None of this, nonetheless, ever bothers the champions of legal uniformity. The Indian Constitution also speaks about settling international disputes through arbitration. Notwithstanding the given directive principle contained in Article 51, the Indian government hasn’t made any recent effort to resolve territorial disputes with Pakistan and China through arbitration before an international forum. Yet we don’t find anybody zealously advocating the need for implementing Article 51. The point is that there is a lopsided focus on Article 44 to the exclusion of other directive principles of state policy. Instead of the discourse being dominated by Article 44, there should be an increased emphasis on the ideals prescribed in Articles 38, 39 & 46. They call for reducing income inequality, eliminating inequalities of status, facilities, and opportunities between individuals, vocations, and regions, distribution of wealth and material resources, and promotion of the educational and economic interests of the weaker sections including the Scheduled Castes and Scheduled Tribes. These are the things that our country needs the most rather than divisive rhetoric related to a uniform civil code. The proponents of UCC strongly assert that it is essential for simplifying our complicated legal system. Well, to tell the truth, our legal setup is in that position because India happens to be an over-legislated state. The buck does not stop with merely personal laws. The notion that every problem can be overcome through legislative action is naïve. This is especially true in the context of gender equality and justice. To secure that end, legislation alone won’t help. Besides reforming family laws, the refinement of minds and attitudes is a must for sustained social change.
(Saif Ahmad Khan is a writer based in Allahabad.)
