Supreme Court is the door to Uniform Civil Code, not Parliament

After periodic reminders from the Supreme Court through observations while dealing with matrimonial cases involving mainly Muslim women, the Narendra Modi government has asked the Law Commission to examine the viability of implementing a Uniform Civil Code in the country based on “the best elements” from various existing personal codes. Predictably, the Congress party has questioned the

decision, particularly its timing just ahead of the Assembly elections in Uttar Pradesh. The vocal sections of the Muslim population have also challenged the decision.

The legal merits for the desirability of a Uniform or Common Civil Code for every Indian, irrespective of his or her religious identity, are unquestionable. In fact, it is one of the directives to government that is enshrined in the Constitution of India (Article 44). And this “directive” does not come in conflict with Article 25 of the Constitution of India that guarantees the freedom of religion, because Clause 2 of this Article separates religion from secular laws that removes some regressive religious practices. It clearly states that freedom of religion shall not limit the state from making any law “providing for social welfare and reform.” And then we have Article 14 of the Constitution, under which every Indian has equal rights; no one under this doctrine of equality can be discriminated in the name of background, caste and creed.

Supreme Court of India. Reuters

It is equally a misnomer that uniform civil law will disallow one marrying according to her own religion. What it does basically is that it ensures uniform rights to all in marriage, divorce, property rights and inheritance in a society that is essentially patriarchal. In fact, its intended beneficiaries are women in general. In that sense, the common civil code is gender-sensitive; it has nothing to do with religion.

However, it is the lack of political consensus that has led to the absence of uniform civil laws in the country. Political parties, particularly those who claim to be secular, are afraid that any move towards having common civil laws will disturb some minorities who constitute their biggest vote-bank. They do not realise that by arguing against Uniform Civil Code they are indulging in perhaps one of the worst communal practices that one can think of.

It is to be noted that apart from the Muslims, all other religions in India have undergone some social reforms or the other in their personal laws and practices. The Christians have had Indian Christian Marriage Act, 1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925. In 1983, initiatives were taken by Bishops, clergy, lawyers and social activists to modernise several sections in these laws that were considered discriminatory. The Parsis have the Parsi Marriage and Divorce Act, 1936.

The Hindu civil laws (that apply also to the Sikhs, Jains and Buddhists) have been codified many a time by Parliament - the Hindu marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoption and Maintenance Act, 1956.

In contrast, the Muslim Personal Law has remained unchanged over the centuries. It is derived mainly from the Quran and the Hadith. The Quran is the main source book of Islamic laws, but it is to be noted that Muslim Personal Law “as it is known and practiced today was compiled more than a hundred years after the death of the Prophet.” Be that as it may, the fact remains that the Muslim leaders in the country and the All India Muslim Personal Law Board (AIMPLB) – a private organisation — have resented whenever the Supreme Court makes negative remarks on the “triple talaq” practice and the poor maintenance of  divorced Muslim women. They say that “the country's top court has no jurisdiction to undertake the exercise as the community's personal law was based on the Quran and not on a law enacted by Parliament.”

In fact, drawing a line between a law enacted by the legislature and social norms dictated by religion, the AIMPLB has told the Supreme Court that “Mohammedan law is founded on the Holy Quran and Ahadith of the Prophet of Islam and this cannot fall within the purview of the expression 'laws in force', as mentioned in Article 13 of the Constitution," and that "the personal law of Muslims has not been passed or made by a legislation." For AIMPLB, Muslim personal law is inextricably interwoven with the religion of Islam.

However, AIMPLB’s logic that Muslim Personal Law is a religious issue and hence beyond the purview of man-made laws is deeply flawed. It is true that except Bangladesh and Indonesia, every Islamic country has a uniform law based on Sharia which applies even to non-Muslims. But it is also true that in virtually all other countries where Muslims live in significant numbers there is a uniform law — both civil and criminal. If Muslims living in the United States or France can be regulated by man-made uniform laws and yet remain proud Muslims, why should AIMPLB fear that Indian Muslims will cease to be Muslims once they come under uniform civil law? That this argument is all the more redundant when the same Indian Muslims are under the purview of the “man-made” criminal law. The Indian criminal law is not based on Sharia as is the case in many Islamic countries. How come Sharia is sacrosanct for civil laws but not for criminal laws?

Even in India, Goa still practices a common civil code, which has been the law since 1867 when the state was under the Portuguese colonial rule. Admittedly, this code allows some flexibilities to certain religious or customary practices that are debatable, but the point is that on principle there is one civil law for all the Indian citizens living in Goa. And the Muslims in the state are quite comfortable with it. In fact, when in 1981 some orthodox Muslims under the banner of Goa Muslim Sharia Organisation, supported by outside Muslim leaders, tried to apply the law of India to Goa (that would have taken the Goan Muslims out from the purview of Goa’s common law), the move was opposed successfully by Goan Muslim youth groups and Goan women’s associations. This being the case, are Muslims of Goa lesser Muslims than their counterparts in Uttar Pradesh?

It is often argued that the Muslim community itself will generate a process of change and reform in the course of time. As an argument, there are merits in it, but if one goes by the reality on the ground, there is not much hope. As we have already seen, there have been simply no reforms in Muslim personal practices over the last 100 years. In fact, if anything, the situation has worsened for gender equity and justice among the Muslims in recent years. Wahabism, with enormous Saudi petrodollars at its disposal, has penetrated India viciously. As a result, we see how in states like Jammu and Kashmir, Kerala and Telangana, the great culture of Sufism (liberal Islam in the subcontinent) has been badly challenged by Wahabi outfits that are segregating boys and girls in the madrassas, insisting only on the teaching of Sharia law in the madrassas, compelling girls to wear ‘Islamic clothes,' including the hijab, and promoting rapid changes in the eating culture of places like Kashmir (before 1990s, hardly any Kashmir ate beef).

So what is the way out? In the prevailing political atmosphere of the country, it is simply not possible to legislate for a Uniform Civil Code. Here the judiciary has to step in, keeping in the tradition of “common law legal system” where “law is often developed by judges and courts when giving decisions in individual cases that have precedential effect on future cases.” Here, “the body of past common law binds judges deciding later cases to ensure consistent treatment and so that consistent principles applied to similar facts yield similar outcomes.” In other words, past judicial cases become the most important source of law, which gives judges an active role in developing rules.

It is to its credit that the Indian judiciary has been fairly consistent in its observations that the Muslim women are being treated unfairly under the prevailing Muslim Personal law (in the last two years, I have come across at least four such observations). Now, it is time for concrete judgment that could become a “common law”. The Supreme Court must reassert its pre-1986 powers.

It may be noted that the then Rajiv Gandhi government, in what was a clear case of Muslim-appeasement, had legislated in 1986 the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA) to nullify the famous Shah Bano judgment. The Supreme Court, under the direction of then Chief Justice Chandrachud, had ruled that notwithstanding the separate Muslim Personal Law system, Shah Bano, a hapless divorced woman, deserved continued maintenance from her former husband under the Indian criminal law (section 125 of the Cr.Pc that requires a person with sufficient means to maintain his wife, if she has not remarried).

If the Supreme Court reasserts its pre-1986 powers and overrides the MWPRDA in pending cases involving Muslim women, it is expected that the Modi government, unlike the Rajiv Gandhi government in 1986, will not challenge the decision. Though the BJP manifesto talks of its commitment towards Uniform Civil Code, it is doubtful that the Modi government will ever pass such legislation during its tenure, given its minority character in the Rajya Sabha. The best course, for it, therefore, is not to challenge any judicial verdict that has reformatory impact on Muslim Personal Law.