The debate over Uniform Civil Code in India has reached its crescendo. India’s Prime Minister Narendra Modi set the ball rolling last month when he asked— “Can a country be run on two laws?” The question posed by Modi has started a debate in India.
What are Personal Laws?
India follows legal pluralism with different religious communities following their own personal laws. Personal laws include matters of inheritance, divorce, child custody and alimony. Personal laws have their origins in British colonialism. Various history scholars have argued that Personal Laws in India were introduced by the British in order to “divide and rule” Indians along religious lines. However, there are counterarguments also that contend that the British introduced Personal Laws to preserve the culture of different religious communities in the Indian subcontinent.
Even though Hindu Personal Laws have been codified and reformed starting in the 1950s, Muslim Personal Law has not been reformed over time.
It is pertinent to mention that the ruling Bharatiya Janata Party’s (BJP) ideological parent Rashtriya Swayamsevak Sangh (RSS) staunchly opposed the codification and the reformation of Hindu Personal Laws in the early 1950s.
However, now that the BJP is in power, the RSS is pushing for a Uniform Civil Code.
The BJP claims that Muslim Personal Laws are an aberration because of Congress’ Muslim appeasement. The party further alleges that the personal laws perpetuate gender inequality in the Muslim community.
Muslim Women Equality and Uniform Civil Code
The origin of the debate over Muslim women’s equality and the Uniform Civil Code goes back to the early 1980s.
The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano maintenance case is seen as a landmark case in India’s legal history that had significant implications for the rights of Muslim women in matters of divorce and maintenance. In 1978, a 62-year-old Muslim woman named Shah Bano sought maintenance from her husband, Mohammed Ahmed Khan, after he divorced her through Triple Talaq. Shah Bano’s husband refused to provide her maintenance, leaving her in a difficult financial situation. Shah Bano approached the courts seeking financial support from her husband under Section 125 of the Code of Criminal Procedure (CrPC), which provides for maintenance to be given to a wife by her husband if she is unable to maintain herself.
The case reached the Supreme Court of India in 1985. The court ruled in favour of Shah Bano, stating that she was entitled to maintenance from her husband even after the divorce. The judgment was significant because it recognized that Muslim women could claim maintenance under secular law rather than solely being governed by Muslim Personal Law. However, the verdict was met with strong opposition from conservative Muslim groups, who argued that the court’s interference in Muslim personal law violated their religious rights. The Congress-led Indian government, under pressure from various Muslim organizations, passed the Muslim Women (Protection of Rights on Divorce) Act in 1986. The act overturned the Supreme Court verdict in the Shah Bano case and limited the maintenance period for divorced Muslim women to the Iddat period as laid down by Shariah.
The Shah Bano case and the subsequent passage of the Act sparked debates and discussions about the rights of Muslim women in India and the tension between personal laws and the principles of gender equality enshrined in the Indian Constitution. The case remains a pivotal moment in the ongoing discussions surrounding the rights and status of women in the context of personal laws in India.
What is Uniform Civil Code?
A Uniform Civil Code will abolish all personal laws and govern all the citizens of India with a uniform law. The marriage, divorce, inheritance, child custody, alimony and maintenance will be uniform for all the citizens irrespective of their religion.
For Muslims, the opinion of religious scholars on the above-mentioned personal matters will no longer hold. The courts will decide these matters according to the secular laws of the country.
Liberal Defence of Uniform Civil Code
Liberal intellectuals across India are defending the implementation of the Uniform Civil Code. They argue that personal laws have perpetuated gender inequality in various religious communities. Further, they also see Uniform Civil Code as a vehicle of progress for the religious communities.
Their arguments are based on the fact that the founding fathers of India’s Constitution did not conceive India as a federation of religions.
Concerns over Uniform Civil Code
Minorities, especially Muslims have raised genuine concerns about the implementation of the Uniform Civil Code in India.
First, the demand for Uniform Civil Code is coming from the BJP-led government. Muslims do not trust the BJP government. The BJP government is using gender inequality in the Muslim community to emphasise the importance of the Uniform Civil Code. However, if BJP’s historical record concerning Muslims is considered, one cannot trust that they are well-wishers of Muslim women.
Second, if the record of the previous nine years of BJP rule is analysed, Muslims have been pushed to the margins. While the BJP government in Karnataka banned Hijab in schools and colleges, it did not take similar action against the religious symbols of other religious communities. Similarly, there have been several incidents where BJP-led state governments took action against Muslims who offered prayers publicly, but the same state governments facilitated the public religious expression of the Hindu community.
Therefore, the Muslim community of India is facing a dilemma. While they are not against the implementation of the Uniform Civil Code but at the same time they fear that the Code will be an expression of Hindu majoritarianism.