A Secular Case for a Common Civil Code
November 8, 2016
The news regarding Muslim Personal Law Board and other Muslim organisations’ adamant stand on the issue of triple talaq and the BJP-led union government’s attempt to push for a Universal Civil Code (hereafter UCC)1 has energised the debate on reforms in Muslim personal laws verses a UCC. A section of Muslim women along with the Bhartiya Muslim Mahila Andolan (a secular organisation established by Muslim women in 2007), have decided to take the issue to the Supreme Court in the form of a PIL. The government too, is in favour of abolishing the practice of triple talaq. However, the RSS-BJP sees this as an opportunity to polarize the Hindus by raising the issue of a UCC. The secular left-liberal sections are divided on the issue as always. The present article tries to introduce secularist debates on the need and nature of a UCC.
The focus here is to establish why reform in Muslim personal laws alone is not enough and why a UCC should not be seen from a communal point of view but as a secular attempt to fight against the patriarchy and to create equality. The first part deals with the history of the debates on the UCC, and the second part tries to highlight the central points.
Article 44 of the Constitution of India says: “the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”2 At the time of the writing of the constitution, secular universalism was the basis of the nation-making process adopted by our lawmakers and hence, it was no surprise that the Indian constituent assembly adopted such aims. All the progressive forces were firmly behind the idea of uniform laws. This zeal was derived from the liberal influences of the English tradition, namely the “rule of law”. Mino Masani, one of the liberal members of the constituent assembly, pointed out the danger of community-based laws. There were also women members in the Constituent Assembly such as Hansha Mehta and Amrit Kaur, who demanded a universal civil code as a protection of women’s rights.3 As a first step to that uniform civil code, Ambedkar as the then law minister of India produced the Hindu Code Bill in the parliament. This bill was a comprehensive attempt to ‘modernise’ and codify the Hindu traditions of marriage, family and inheritance. In 1947 when this bill was first proposed in the parliament, a substantial number of legislatures however, opposed it. This was the first sign of the problems which the UCC was to face in the future.
The President of India at the time, Dr Rajendra Prasad was vehemently opposed to any idea of state intervention in the so-called Hindu traditions.4 When the Hindu Code Bill was finally introduced, after four years of debate, in 1951, the number of people who opposed it increased. Nehru, as the Prime Minister of India, proposed caution and waited for the 1952 elections to get a mandate from the people for such reforms. Ambedkar resigned from the cabinet due to Nehru’s reluctance to push the bill in one go. Finally, the laws which came from the original Hindu Code Bill in 1955 and 1956 modified and codified the Hindu traditions of marriage, family and inheritance. The Hindu Right was furious, despite the fact that Nehru’s cabinet had mellowed down the original bill in their favour. Once the laws were enacted, the Hindu Right used it as a tool of mobilisation and polarisation vis-à-vis the minorities which still retained their personal laws. Nonetheless, the demands for universal personal laws continued to be raised by the Left and liberal groups. The women’s movement in India fought for equal rights and forced the state to make secular interventions in the form of the Dowry Prohibition Act of 1961 and the Medical Termination of Pregnancy Act, 1971. All such laws were opposed by the religious groups including Hindus, Muslims and Christians.
In the 1980s a new turn of global and domestic events turned the UCC debates upside-down within the Left and liberal circles, including the women’s movement. The rise of multiculturalism and post-modernism in the social sciences, along with the rise of neo-liberalism, influenced the policy approaches of states in the post-colonial societies too. The centrality of the individual as a subject of universal laws is a ‘modernist telo’, hence ‘outdated’ and ‘regressive’ were common refrains by enthusiasts of post-modernism and multiculturalism. For them, the Left-liberal emphasis on universal individual rights is based on “wrong” notions of their autonomy. Individuals are ‘embedded’ in “particular social roles and relationships” and “such embedded selves do not form and revise their own conception of the good life; instead they inherit a way of life which defines their good for them”.5 Hence, in the eyes of cultural relativism and multiculturalism, standing with the minority rights meant “defending cohesive and communally minded minority groups against the encroachment of liberal individualism.”6 The process of ‘national building’ too moved significantly away from notions of universalism. Though extremist multicultural positions were later rejected by the Left-liberal sections, a more tolerant view of cultural differences was gradually being adopted throughout the globe. The democratic state need not impose one version of the law on everyone, and let the cultural differences be, particularly when they belong to the minorities. There are many unresolved debates among the Left and liberal circles about the extent of specificity and of universalism. However, it was obvious that the fight for universal individual rights and equality was on the back foot at the time.
The Right moved in the opposite direction to the Left-liberal view once again. It did reject the whole idea of relativism; instead, it became rigidly Universalist albeit from a majoritarian point of view. The world witnessed a rise of popular movements rejecting any project of tolerance propounded by multiculturalists in the western societies. The Right in these societies based its campaign on fear mongering about minorities; internal as well as migrant. This deepened the crisis among the Left further. The popularity of such Right-wing rejection throughout the globe at the time forced the more pragmatic among the Left-wingers to either lie low or play with the gallery. This is not to suggest that the Right was ever tolerant. However, conservativism has always talked about ‘the respect of traditions’ and so on in the past. As far as the Right is concerned, this particular stance changed in the 1980s. Globally, the Right was gripped by cultural paranoia, and the Left and liberal forces were ineffective if not invisible.
The 1980s was an era of turmoil both economically and politically in India. The initiation of economic reforms coincided with aggressive Right-wing assertion. The issues of the Babri Masjid-Ram Madir agitation, the rise of militancy in both Kashmir and Punjab, and the Shah Bano case etc. were symbolic of the turmoil of the era.
The 1980s is hence, the period in which the communal polarisation became severe due to a rising inability—or rather, reluctance—of the state to intervene. The concurrent events of Shah Bano and Ayodhya were classic turning points in Indian politics vis-à-vis the issue of universal personal laws. The polarisation was complete between the Hindu and the Muslim Right wing. The RSS-BJP, stronger and more articulate movements of the Right than the preceding Jan Sangh of the 1950s, led the Hindu attack with slogans of ‘minority appeasement’ and ‘pseudo-secularism’, with the three fold demands of Ram Mandir, the abolition of article 370, and the UCC. It is very clear that the failure of the state in the 1980s in maintaining the secular credentials in law provided solid ground to RSS-BJP politics. If we see carefully, none of the issues raised by the Hindu Right is related to political economy on the surface. Here, the concerns of the liberals and the right wing merged. Maybe, that was the first assertion of a kind of ‘Washington Consensus’ among Indian politicians.
The Muslim and Sikh right wing too had a role to play in the 1980s. The rise of the Khalistan movement is well known, and we need not to go into the details here, as it had nothing much to do with the UCC debate. Suffice it to say that, the Sikhs were made part of the Hindu personal laws emerging from the Hindu Code Bill in the 1950s, hence, their grievances were similar to the Hindu Right. The Muslim Right, led by various ulemas and organisations including Muslim Personal Law Board and Jamat-i-Islami etc. reacted to the Shah Bano judgment more furiously than the Hindu Right had in the 1950s and 1960s, when the Hindu personal laws were codified and somewhat modernised. This reaction, though limited to urban and so-called educated sections among the Muslims, was portrayed as universal Muslim rejection. It forced the government to intervene and nullify the Supreme Court’s judgement in the Shah Bano case. Instead, the government enacted the Muslim Women (Protection of Rights on Divorce) Act in 1986.
This state intervention under pressure from the Muslim Right strengthened the arguments of “minority” rather “muslin appeasement” by the Hindu right wing. The demands of a UCC became hence, a tool for further polarisation of the Hindus against the Muslims during the late 1980s and early 1990s. The Left and liberal forces both, due to acceptance of the ideas of multiculturalism and due to realpolitik considerations, gradually desisted from raising the demand of a UCC. During the first NDA regime (1998-2004) the BJP did not have absolute majority, therefore, the UCC was never made a significant issue. Today, however, when the BJP is in power with absolute majority in the Lok Sabha, it is under pressure from the Hindu Right to push for the UCC. The desperation being shown by the BJP is also due to its failures to deliver on its main election agenda of development. There have been no substantial achievements on the economic front in the last two years. It is but obvious that issues like UCC and ‘Pakistan sponsored terrorism’ are seen as a saving grace by the pundits sitting in Jhandewalan and Nagpur. But is it that simple? Does the demand of a common civil code have no merit for Left, liberal and feminist movements? Are the demands for a common civil code and reforms in the Muslim personal laws same?
Equality is one of the most celebrated values of the enlightenment. Both the liberals and the Left, despite their disagreements over the form and extent, agree that a modern society without equality is impossible. The Indian constitution, a classic liberal text, recognises this beyond any doubt and makes several provisions for it, most explicitly in part III. Feminists of all hues—if we agree to exclude the so-called feminism of the religious right (both Islamic/Christian and Hindu in the present case)—struggle for equality. Among several ways, a universal personal law is also seen by many as an attempt to create the same equality. Perhaps, that was the reason that the Left and the liberal forces supported the demands for a common civil code very early on in the post-independent India. One of the largest women’s groups in the country, the All India Democratic Women Association (AIDWA) has supported the idea of universal secular laws for women across religious divides. The internal Left debate about multiculturalism and cultural relativism is unsettling, however. The arguments in favour of cultural relativism put forward by the pundits of multiculturalism, if accepted, will do much harm to the projects of equality. It will be like accepting the demands of khap panchayats to kill girls if they marry out of choice or to let some burn their women in the name of sati. Respecting differences cannot be an absolute in all circumstances. There must be ‘minimums’ defined through a democratic process for any society. If equality remains the universal value, there can be no denial of the need for massive reforms in the respective personal laws on secular lines, or even on the lines of a common civil code.
It is often pointed out, and rightly so, that historically, Muslim and Christian personal laws have been more progressive than the Hindu personal laws, which were only codified and modernised in the 1950s. Some intellectuals of the Left are fearful of the attempts to ‘Hinduise’ the UCC in case it is adopted today, when the BJP is in power. This is a genuine concern. However, the point is not to create a UCC overnight, but to agree in principle whether we want it or not. If we start debating its possibility and there is consensus, we can always fight against any ‘cultural imperialism’. We can’t be postponing the debate forever.
It is a fact that the Sharia had more provisions for the rights of women than any tradition or codes of Manu in matters of marriage, divorce and share in the ancestral property. Post the reforms in the Hindu personal laws, however, this ‘advantage’ is history. Thanks to interventions of a secular judiciary from time to time, Hindu women moved from no share to equal share in ancestral property in 2005. They are now much ahead of Muslim women, who still have a right to one-third share. Their share in the property of their parents has not moved since the seventh century.
However, a UCC is not specific to one community and if there are progressive elements in a community’s personal laws, there should be attempts to retain these as a common law. The case for a UCC is not for regression, but for progression. The UCC would be an attempt to secularise the laws and see women as women and not as a Muslim woman or a Hindu woman. Both suffer if divorced without any means of subsistence. A Muslim woman should have the right to claim, if she wants to, an equal share in the ancestral property as any Hindu woman. She needs the same rights to abortion as a woman whether she is a Muslim, a Hindu or a Christian. She cannot be punished because she was born in a particular community. This is common sense. Of course, there should be flexibility and space for the peculiarities of the individual cases. But, the need for equal justice is beyond any doubt. Thus, demands for secular universal laws or a common civil code—despite the fact that the Right wing is leading it—remains an important demand for the women’s movement in India.
Now the question arises, and this is a very significant question, ‘what would be the basis of universality’ in the common code? Some liberal and Left-wing intellectuals have an apprehension, as mentioned above, that since a right wing government is in power they might try to ‘Hinduise’ the common provisions of the code. This is a possibility, but one should not throw the baby out with the bath water. The common personal law, if at all actualised, must be based on a democratic process in which the culturally harmless practices of marriage rituals of each community should be allowed to be. The main concerns of equality in marriage, family and inheritance must be based on the model of existing secular laws which are in turn based on the principle of rule of law where they are already available, as in the case of divorce and inheritance under the Special Marriage Act of 1954. Where it is not available, it should be created with care and consensus. The possibility of hegemonic cultural influences on the common civil code can be minimised or eradicated if secular principles are adopted. For example, the provision of polygamy in Islam is not a ‘harmless cultural practice.’ In fact, it is not even a common practice among the Muslims. One can quote shuras from the Quran about the restrictions imposed on men to marry more than one wife but that does not theoretically eradicate the possibility. Again, one can debate whether we want universal ‘gender neutral polygamy’ or the abolition of the institution of marriage altogether. These are possibilities, if we agree that religion should not be the restricting element for either men or women. As far as divorce (talaq) is concerned, there is a secular procedure available, and all the culturally regressive and obscurantist practices including the practice of triple talaq need to go. No religious community can claim to have a superior personal law. Even the Hindu personal laws have problems of inequality and untoward benefits in the name of the Hindu undivided family. There are shortcomings and patriarchal biases inherent in all of them. A common civil code should be seen as addressing those lacunae from a secular women’s rights perspective.
There is another argument put forward by some scholars that due to the gradual secularisation of laws and progressive interpretations by the courts from time to time, most of the community-based personal laws are anyway universalised, hence, there is no real need for a UCC. Rohit De argues that,
Legislative reforms in Hindu and Christian laws and the increasing juridification of the Muslim law have created a greater degree of uniformity among different personal laws. Secondly, there is more debate and dissent within communities and a concerted attempt to reform family law from within. Thirdly, new evidence suggests that gender inequality within the family bears a greater correlation to socio-economic conditions than the form of religious law. But perhaps, most importantly, the new areas of emphasis on family law reform address questions such as domestic violence which cut across community identities and concerns.7
The most popular example of such development is the Domestic Violence Act of 2005 and the Dowry Prohibition Act of 1961. Examples of how the courts have interpreted the Muslim Women (Protection of Rights on Divorce) Act, 1986 in favour of women without any resistance from the Muslim men are also given. But the question remains, why should we leave it on the subjectivity of lawyers and judges to decide what should an objective right of a woman be?
The question of pluralism and multiculturalism is also raised. Let Muslim women decide if there should be reforms in their personal laws or not. Why should we impose it from outside? Then there is another question about who decides what is good and bad? Nivedita Menon argues, for example, that there are much ‘better’ provisions of Mehr and the protection of the second wife in Sharia than in the Hindu acts, though Hindu right makes these provisions looks regressive. She argues that gender justice is not necessarily based on universal laws.8 These are difficult issues to decide. However, we should not forget that pluralism and cultural relativism is a double edged sword, as pointed above. Mr Wali Rahmani, general secretary of the All India Muslim Personal Law Board, defends triple talaq on the basis of pluralism.9 The heads of khaps, when they expressed their opposition to the attempts by the Supreme Court to make them illegal by law, quoted similar grounds. There are multiple examples where the Hindu right wing defends caste and gender oppression in the name of ‘pluralism’. Shah Bano was denied her allowance on a similar basis; often, child marriage, emale circumcision and even sati have been justified. As argued above, we need to see culture in a different light – pluralism should be no excuse for regression. This is not to argue that pluralism per se is unacceptable. But, it cannot be an absolute. Reforms from within can take millennia. It all depends on circumstances. We should not forget the history of the women’s rights movement in India both during the colonial and the post-colonial phases. All struggles for gender justice have had to face similar arguments, and in all cases the women’s movement has rejected them. If a section of women from the Muslim community want their freedom and rights now, can we ask them to fight within their community first? Did we do that in case of sati, child marriage, widow remarriage etc. in the past? There are many Muslim societies in the world which have modernised their personal laws through state intervention. In most of these societies, the community did not take initiatives to change such laws.
In the present case the demand for the reforms is coming from within the Muslim community. The AIMPLB is not even giving a sympathetic hearing to the demands. Instead, there is a contemptuous rejection. It seems they are playing with genuine insecurities, among the progressive sections within the community and that from the outside of it, emanating from the fact that BJP is in power to safeguard the interest of men. Is this not patriarchal arrogance?
The achievement of a common civil code is still far, and it would not be simple either. The obscurantism in all religious groups is guided by the patriarchy and not religion. Culture and religion are masks which the patriarchy wears all the time. Cultural relativism is yet another sophisticated tool used by the patriarchy against movements for equality. One should be careful of not playing into the hands of one Right wing or another, particularly in the times in which we are living in India now. However, no fear should stop us from fighting for and demanding what is just.
Article 44 is in part IV of the Indian Constitution which is called Directive Principles of State Policy, and is non-justifiable in courts. In this Part there are also articles 39 (Common Good and Economic Rights of people), article 41 (Right to work and education etc.), article 42 (Provision for Just and Humane Condition of Work and Maternity) and article 43 (Living Wages etc). This same Part also has article 48 (Organisation of Agriculture and Animal Husbandry), which asks the state to protect cows and other milch and draught animals. Part IV-A is about fundamental duties which, in its entries, ask Indian citizens “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”. The passionate and enthusiastic call for a common civil code and maybe article 48 – partially, and none of the other issues mentioned in the same part of the constitution, exposes the selective and parochial approach of both the Indian state and the citizenry like none other. The time is right to take them head on, and not to be defensive in any manner.
Notes and References
 There are some differences between the idea of a Common Civil Code and a Universal Civil Code theoretically. However, in this article it has been used interchangeably for the purpose of debate.
 See A. G. Noorani’s (2015) excellent articles in Frontline on the debates in the constituent assembly and later court judgements related to this article. “Hindutva’s Stick”, November 24 and “Zeal and Poor Scholarship”, December 11.
 De, Rohit (2013), “Personal Laws: A Reality Check”, Frontline, September 6, 2013
 The Hindu Code Bill, Economic and Political Weekly, 24 December 1949, http://www.epw.in/system/files/pdf/1949_1/52/the_hindu_code_bill.pdf
 Kymlicka, Will (2002), Contemporary Political Philosophy: An Introduction, Oxford: Oxford University Press, P-336
 Ibid, P-337
 The Hindu Code Bill, Economic and Political Weekly, 24 December 1949.
 Menon, Nivedita (2016), “It Isn’t About Women”, The Hindu, July 15.
 "Muslim Groups Reject Law Panel Move on Uniform Civil Code", The Hindu, October 14.
Originally published in Vikalp. Republished here with minor edits for clarity.
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