“You must bring it, also for the Muslim community. Take it from me that the Muslim community is prepared to have it but you are not brave enough to do it.”, thundered J.B. Kriplani, the veteran socialist, while debating upon the Hindu Code Bill. This was roughly seventy years ago; the person on the receiving end of this rebuke was none other than Pandit Nehru, worshiped by many, as the architect of modern and secular India. Nehru had a hard time getting the bill through the Provisional Parliament. Within the government, the bill faced considerable opposition from the then President Rajendra Prasad, who made his dissatisfaction known to Prime Minister Nehru. This aggrieved Dr. B.R. Ambedkar who was the Law Minister in Nehru’s Cabinet. Inside the Parliament, the government was attacked by jurist N.C. Chatterjee of Hindu Mahasabha, and Dr. Syama Prasad Mukherjee of Jana Sangh, the ideological precursor to the Bharatiya Janata Party (BJP). Both of them questioned the assumption that monogamy was virtuous for Hindus alone, and so a universal law for all religions was not possible. Outside the Parliament, the Bill was opposed by a coalition of Hindu-Right convened to form the Anti-Hindu Code Bill Committee. The Bill lapsed in the Provisional Parliament, and eventually, Pandit Nehru had to break up the bill into four different Acts, that saw their way through the Parliament, in the 1950s. The failure in getting it passed as a single Act was cited as one of the reasons why Dr. Ambedkar chose to resign from the cabinet in 1951.
Nehru was hesitant towards the idea of a Uniform Civil Code (UCC), believing that the newly-formed Indian state had an extra liability of reassuring Muslims (who remained in India after partition), about their safety, and rights. He believed that the time was not right for the state to consume the religious identity of its people in the favor of equality. By the time the last bit of the Hindu Code Bill was enacted in 1956, he became increasingly occupied with issues of low economic growth, cold war politics, and hostile neighbors, leaving the task of enacting UCC to future Prime Ministers. Unfortunately, Nehru was the only Prime Minister of the stature who could have enacted it without having to worry about its political consequences. Post-Nehru, it became a political anathema, with Rajiv Gandhi choosing to overturn the Shah Bano Judgement despite having what was the largest mandate ever given to any Indian Prime Minister.
Today, the idea of a UCC remains entrapped merely as a Directive Principle of State Policy, in Article 44 of the Constitution, waiting to see the light of the day. Governed by Muslim Personal Law (Shariat), the Mullahs and Imams remain more stringent than ever against any interference in their personal laws, which they consider to be of divine origin, the word of Allah, conveyed through the Prophet.
However, closer scrutiny reveals that these claims of its sacrosanct character fall right through. To begin with, the Muslim Personal Law (Shariat) Act was enacted only ten years before independence (in 1937), by the Central Assembly. Before that, the Hindus and Muslims were governed by the same set of laws, as can be understood by noting that the criminal law is still uniform in the country. Furthermore, as documented by Arun Shourie, in his book ‘A Secular Agenda’, certain sections of the Act were amended corroding its claims of being sacrosanct. A prime example would be that the original bill had said, that ‘notwithstanding any customs or usages or law’ the Shariat shall apply. The Act, on the other hand, says that ‘notwithstanding any customs or usage’, the Shariat shall apply. No law, therefore, was to be, and no law is to be, subservient to what the Shariat may be said to hold.
Yet in a struggle for monopoly over jurisdiction, Mullahs and Imams have blocked reforms, and have relied upon a campaign of disinformation to create public opinion in their favor. The result is that Muslim women continue to suffer the horrors of triple talaq, which remains applicable even when announced in a drunken state, or in a fit of rage, and the same can be overturned only after going through the degrading practice of Nikah Halala, which involves marrying, and spending a night with another man, so as to renew her previous marriage. Polygamy too remains prevalent despite not being a must. Proclaimed Islamic nations like Tunisia, Morocco, Pakistan, Iran, etc. have codified the personal laws, wherein the practice of polygamy has either been totally prohibited or severely curtailed to check the misuse of this obnoxious practice.
This is not to say that the need for reform is just limited to Islam. Hinduism too is in need of further reform where practices of ‘vivaha Homa’ (invocation before the sacred) and ‘saptapadi’ (seven steps round the fire, by the groom and the bride) are essential for a marriage to be validated. The absence of proof of any of the two ceremonies could render the marriage null and void. This illustrates a straightjacket-based understanding of Hinduism. With its countless sampradayas (factions) and innumerable customs, the law cannot narrow down the requirements of marriage to two ceremonies. Many tribes in India, which adhere to Hinduism, do not perform either of the two.
Ironically, it has always been the Hindu Right which has supported the cause of a Uniform Civil Code. What is also true is that they have done little to assuage the fears, and concerns of the Muslim population. There lies a reasonable fear that instead of a gender-just civil code, a more aggressive code would be implemented, one that is purposely hostile to Muslims. On the other hand, left-liberals either continue to pay lip-service to the issue or go virulently against it, arguing that the community as a whole still hasn’t reached the pedestal of progressiveness required to be open to the idea of such a code. This, as we can see, is a circular argument, wherein progressiveness is required to adopt a progressive Code, and yet neither can be expected without the other.
Dr. Ambedkar offered a way out. He offered to have a code, which can be optionally adhered to, with the prospect of it becoming permanent when the time was right. Meanwhile, Goa with its Portuguese Civil Code continues to provide an example of the harmony of civil laws, without any discord within the different communities. It will not be an overstatement to assert that we as a nation, owe to ourselves, the taking of a necessary step towards equality. Enacting a gender-just civil code would be a true tribute to Baba Saheb’s legacy.
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