Reforming personal laws: Uniform code no magic wand

Thus, Justice Khare's pronouncements don't fulfil the criterion for "judgment" under Article 145(5) of the Constitution. But that hasn't prevented a robust debate on the UCC.

Justice Khare holds that a UCC would promote "national integration" and should be enacted forthwith. This logic is flawed. For one, it is not for the courts, as distinct from Parliament, to decide how to promote national integration.

Tap here to add The Daily Star as a trusted source

And for another, uniform laws about marriage, inheritance, etc, don't hold a special key to "integration". A society as plural and diverse as India's could well have different personal laws -- so long as they are consistent with fundamental rights.

Hindutva supporters use the UCC as a stick to intimidate the religious minorities. They want it imposed without debate or consent. And Muslim conservatives stoutly oppose any change in personal laws. In between fall many who believe a UCC is desirable, but India is not ready for it -- "not yet".

All these positions are open to question. The case for common laws on marriage, divorce, succession, etc, arises not from "national integration", but from two other considerations: social justice and legal universality -- which says all citizens should be governed by common laws as far as possible.

India's Constitution-makers recognised the difficulty with an absolute, unqualified, UCC mandate. So they used soft language: "the state shall endeavour to secure a UCC ..." They placed Article 44 within the Directive Principles of State Policy, which are not enforceable by the courts, unlike fundamental rights.

The 14 substantive Directive Principles include worthy goals: creating a welfare state, improving public health and nutrition, providing free education, guaranteeing the "right to work", under "just and humane conditions", promotion of international peace, etc. It's ludicrous to privilege Article 44 over the other 13 Principles.

Justice, especially gender equality, is all-important. All Indian personal laws are patriarchal and biased against women. Thus, a Hindu woman can rule India, but she cannot head the family! She cannot claim equal inheritance or a matrimonial home.

The children of a Parsi woman who marries a non-Parsi are considered non-Parsi, and cannot enter a Fire Temple. Not vice versa.

Muslim personal law allows for polygamy and doesn't demand a fair procedure for divorce nor obligates maintenance. Christians seeking divorce through mutual consent must suffer a longer separation period than non-Christians.

These laws violate requirements of elementary justice and Article 14 of the Constitution which prohibits discrimination. They must be reformed so that men and women have equal rights as in the Special Marriage Act, 1954.

Equality is paramount. It must override custom, religious tradition or practice -- although religion often doesn't really sanction discrimination.

All religious communities have had mixed reactions to attempts to reform personal laws. In the early 20th century, Hindu leaders including Lokmanya Tilak opposed laws raising the minimum age of marriage and allowing widow remarriage. Later, enlightened Hindus tried to codify Hindu personal laws, resulting in new Acts in the mid-1950s.

This led to an unseemly confrontation between Nehru and President Rajendra Prasad. The reform process ground to a halt.

Yet, many Hindus harbour the illusion that they have a uniform code, and there's no need for further reform. As the legal luminary H.M. Seervai held, "there is no common [Hindu] civil code". And there's no momentum for reform.

Muslims strongly protested the Shah Bano judgment. But they have since accepted pro-reform judicial verdicts, including a Bombay High Court judgment against "triple talaq", and two Supreme Court judgments (Shamim Ara and Danial Latifi cases).

One of these mandates payment of alimony to the divorced wife for life -- unlike in any other community. Groups like Majlis and Awaz-e-Niswaan say the vast majority of Muslim women want to change "laws which violate their rights".

This should settle the dishonest argument that Muslim personal law has never been modernised, and that Muslims are uniquely resistant to reform. In fact, there is modernising, secularising, progressive change among India's Muslims.

A recent survey of nearly 10,000 Muslim women shows that differences in status -- educational, social-economic or in decision-making -- are attributable more to income, class or region than to religion. A Muslim woman is more likely to be illiterate because she is poor, not because she is Muslim.

Muslim women are less subject to domestic violence than Hindu women. They are more independent and mobile and have greater say in decisions about housing or family size. They vote in larger numbers.

Muslim women are increasingly becoming aware of their rights -- and of legal reforms in many Muslim-majority countries. They are "intruding" into male preserves like the armed forces and theology.

Chamravattom, India's first village to become fully computer-literate is in Malappuram district on Kerala's Malabar coast, where Muslims form 40 percent of the population. The first-ever woman driver of a city bus in Chennai is Hameeda Banu, a diploma-holder in mechanical engineering.

A modern professional middle class is crystallising among Indian Muslims which stands for progress and equality, and resists conservative Mullah-Maulvi leaders.

If Hindutva's champions of personal law reform were really serious, they would have worked with this group, rather than use the UCC as instrument of chiding and coercion.

They shed crocodile tears over the plight of Muslim women, but are blind to Hindu women's growing oppression through bride-burning, female foeticide, and spread of purdah. Their real agenda has nothing to do with reform or justice.

Yet, it's not enough to criticise the Hindutva lobby for hypocrisy. Pro-reform secularists must fight for personal law reform among all communities.

Praful Bidwai is an eminent Indian columnist.