The Phantom of the Opera

Justice V. N. Khare’s recent observation on the Parliament’s remissness in not “framing a common civil code in the country” has once again ignited the debate on the common civil code in India. The honorable judge argued that the adoption of a common civil code would felicitate national integration. I am glad that someone thought about national integration. For the past few years, I have been wondering about those once ubiquitous slogans (Hindu Muslim Sikh Isai, aaps me sab bhai bhai) on national integration that have vanished from the public places.

The reactions from various quarters to Justice Khare’s ex-catherdra remarks are on predictable lines. It is common knowledge that the BJP has always espoused the cause of a common civil code. It goes with their one nation, one culture Hinduvta line. The rekindling of the debate at this moment, when the BJP is preparing for the next year’s parliamentary elections, has come as god sent. VHP’s international secretary, Praveen Togadia, has asked Muslims not to oppose the Uniform Civil Code (UCC). He said that if Muslims opposed the uniform civil code, it would be construed that they want India to be an ’Islamic state’. One is not surprised at the intimidating tone of Togadia and his ilk.

On the other hand, the Muslim clergy, as also the Muslim intelligentsia to some extent, is opposed to the idea of adopting a common civil code. Their reasons are different. They see the imposition of a common civil code as a violation of their minority rights and interference in the Shariah laws. They fear that their identity will be taken away as if, for example, Muslims will have to perform satpadi and the poor qazi will be shown the door. In addition, as pointed out by Maulana Rabey Nadwi, Chairman of the All-India Muslim Personal Law Board, a uniform civil code would be a huge burden on courts. He says that at present marriage, divorce, and inheritance cases are speedily decided by maulanas and ulemas and if a common civil code is enforced, then it would cast a huge burden on the courts. While ulemas decide cases in a matter of days, courts will take years and years to decide.

Imtiaz Ahmed, well-known sociologist and political commentator, has stated in an interview that there is no theory which can legitimately argue that people are going to be more integrated simply because they are governed by a uniform civil code. For example, even though Hindus and Sikhs have the same personal laws, the anti-Sikhs riots took place in 1984. What happened to national integration in this case? Similarly, no one can say with certainty that Hindus and Muslims will stop reaching for each other’s necks if there is a UCC in place. UCC can only be justified one the ground of legal universality, which is certainly an ideal worth working for.

The common Muslim, and I am one of them, is confused on this issue. On one hand there is a constitutional commitment for the same, even though this constitutional provision is merely a direction to the state (such as the directive on the prohibition of intoxicating drinks and prohibiting the slaughter of cows), on the other it is clearly being used as a tool to humiliate the Muslim clergy and put the average Muslim on the defensive by the Hinduvta forces.

The Islamic laws are derived from the interpretations of the Quran and the practice of the prophet Mohammad and are subject to various yardsticks such as consensus, judgement, analogy, equity, public interest, custom and legal reasoning. Traditional Islamic family law reflected to a large extent the patriarchal scheme of Arabian tribal society in the early centuries of Islam and certain institutions and standards of that law were felt to be out of line with the circumstances of Muslim society in the 20th century, especially in urban areas where tribal ties had disintegrated and movements for the emancipation of women had arisen.

This situation seemed to create, in the first place, the same apparent impasse between the changing circumstances of modern life and an allegedly immutable law that had caused the adoption of Western codes in civil and criminal matters. Hence, the only solution that seemed possible, for instance, to Turkey in 1926 was the total abandonment of the Shariah and the adoption of Swiss family law in its place. Likewise, an Egyptian law was enacted in 1931 that no disputed claim of marriage was to be entertained where the marriage could not be proved by an official certificate of registration, and no such certificate could be issued if the bride was less than 16 or the bridegroom less than 18 years of age at the time of the contract. Accordingly the marriage of a minor contracted by the guardian was still perfectly valid but would not, if disputed, be the subject of judicial relief from the courts. Similarly, reform in the matters of child marriage and divorce was effected in the Indian subcontinent by statutory enactments, directly superseding the traditional Hanafi law. The Child Marriage Restraint Act, 1929, prohibited the marriage of girls below the age of 14 and boys below the age of 16 under pain of penalties; while the Dissolution of Muslim Marriages Act, 1939, modelled on the English Matrimonial Causes Acts, allowed a Hanafi wife to obtain judicial divorce on the standard grounds of cruelty, desertion, failure to maintain, etc.

All these examples clearly establish that reform is possible in Islamic laws under changed circumstances. This is why a number of Muslim majority countries like Morocco, Tunisia, Syria, Turkey and Iran have taken up measures to prohibit polygamy. Therefore, the refrain that there is no scope for reform in the Muslim personal laws in India is bunkum.

I guess what can be done here is a simplification of Muslim law as it stands today. Many have pointed out that there is need for reform in the Anglo-Mohammedan law on marriage and divorce. The irony is that most Muslims don’t know that the Muslim Personal Law cannot be equated with the Shariat per se. It is a creation of British magistrates, judges and the Privy Council. Moreover, the Muslim community itself is divided as different groups follow different maslaks (sects). There are at least six schools of jurisprudence subsumed in rubric of the Indian Muslim Personal Law, the Hanafi branch of Sunni legal belief being the most dominant. This sort of confusion further buttresses the case for simplification of Muslim law.

In this light, the most logical step at the moment is reform in the personal laws. There is need for urgent reform on matters such as triple talaq, rights to maintenance and rights of inheritance which are clearly unfavorable towards Muslim women. The best thing to do is to bring change step by step. Bringing legal uniformity in a step by step manner will ensure acceptance without much opposition. For example, there has been no opposition to the Supreme Court judgement in the case involving the Muslim (divorced) Women’s Act where the court made a Muslim husband liable to pay maintenance to his divorced wife for life.

Finally, as A G Noorani has said in a recent article, even ardent supporters of a uniform civil code must have other concerns. The poor Muslims, whose lot is even worse than that of the dalits, need education, jobs, and peace more urgently than anything else. A time will come when the educated and enlightened Muslims of India will demand on their own a system of legal uniformity. One people, one law! Why not?