To be or not to be: UCC dilemma

The Uniform Civil Code (UCC) is a set of laws that seeks to replace personal laws based on religion with a common set of laws for all citizens of India. In India, personal laws are applicable to individuals based on their religion, and this has resulted in a fragmented legal system. The UCC is seen to promote secularism and provide equal rights to all citizens.

The idea of a uniform civil code was first introduced in the Indian Constitution by Dr BR Ambedkar, who believed that a common set of laws would help eradicate social inequality and promote national unity. However, due to opposition from various religious groups, the implementation of the UCC has been a contentious issue in India.

India is a country with diverse religious and cultural traditions, and personal laws have been in existence for centuries. These laws are based on religious texts and customs and have been modified over time.

Personal laws govern various aspects of life, such as marriage, divorce, inheritance, and adoption, and vary based on religion. The UCC has been a subject of debate since India gained independence in 1947.

The Constitution of India provides for the UCC under Article 44, which directs the state to secure for its citizens a uniform civil code throughout the territory of India. However, the Constitution also recognizes the right of citizens to practice their religion and follow their personal laws.

Opponents of the UCC, who see India as a ‘Federation of Religions’, argue that it is an attempt to impose Hindu traditions on the minority communities and violates the right to practice one’s religion. They also argue that the UCC would result in the loss of cultural and religious identity for minority communities.

Proponents of the UCC argue that personal laws are discriminatory and violate the principles of gender equality and human rights. They also argue that the UCC would promote national integration and provide a common set of laws that would apply to all citizens equally, irrespective of their religion.

On March 29, Solicitor General (SG) Tushar Mehta told the Supreme Court that the Central government is in favour of a Uniform Civil Code (UCC) but enacting it is within the domain of the Parliament and not the courts. “Uniform Civil Code is desirable. But this is a legislative aspect. Cannot be decided on a writ petition,” he had said.

The submission was made in response to a plea by Bharatiya Janata Party (BJP) leader and advocate, Ashwini Kumar Upadhyay seeking gender- and religion neutral laws to govern divorce, guardianship, inheritance, and maintenance.

A bench of Chief Justice of India DY Chandrachud, Justices PS Narasimha and JB Pardiwala agreed with this submission, stating that the court could not direct the parliament to enact a law. The CJI also explained to the petitioner that the court is an incorrect forum to raise the issue and that it is up to the parliament to effectuate the UCC.

The Muslims who advocate for UCC, their voices are not amplified enough to show this is not a ‘BJP’ conspiracy to belittle Indian Muslims but a demand from within the community, to usher the Indian Muslim community of 174 million into the 21st century.

Enough Muslim intellectuals, scholars, writers, activists and members of civil society have time and again reiterated, through books, papers, articles, essays, podcasts and talks on TV panels and through social media that “There is nothing personal about the Muslim Personal Law. It’s communal, in both the communitarian and the sectarian sense. In fact, it’s not even Islamic…”

The Muslim Personal Laws found their way into the jurisprudence of India during the Mughal period. The Mughals were Muslims, and their arrival in India in the 16th century brought Islamic law to the Indian subcontinent. During this time, the Muslim rulers introduced Islamic law as a separate legal system for Muslims in India, alongside the existing Hindu legal system.

The introduction of Islamic law was a significant departure from the existing legal system in India, which was based on the Dharmashastras, or Hindu legal texts. The Muslim rulers introduced Islamic law to ensure that the Muslim population in India was governed by a legal system that was in line with their religious beliefs.

Over time, the Islamic legal system evolved in India, and various schools of Islamic law emerged. These schools were based on different interpretations of Islamic law and had their own set of rules and regulations. The schools of Islamic law that emerged in India were primarily the Hanafi, Shafi’i, and Maliki schools.

During the British colonial period, the Muslim Personal Laws were recognized as a separate legal system for Muslims in India. The British colonial authorities introduced the Indian Penal Code and the Indian Evidence Act, which applied to all citizens of India, irrespective of their religion. However, in matters of personal law, Muslims were allowed to follow their own laws based on their religious texts.

After India gained independence in 1947, the Constitution of India recognised the right of citizens to follow their own personal laws based on their religion. The Constitution also provided for the implementation of a Uniform Civil Code, which would replace personal laws with a common set of laws for all citizens of India.

However, the implementation of the Uniform Civil Code has been a contentious issue in India, with various religious groups opposing it. There are certain arguments that suggest that the Muslim Personal Laws of India are anti-Islam. These arguments are primarily made by progressive Muslim scholars and activists who believe that the Muslim Personal Laws are patriarchal, discriminatory, and contrary to the principles of gender equality and human rights.

One of the primary arguments against Muslim Personal Laws is that they are based on patriarchal interpretations of Islamic law. These interpretations are said to discriminate against women in matters of marriage, divorce, inheritance, and property rights. For example, the practice of triple talaq, which allows Muslim men to divorce their wives by simply saying “talaq” three times, is considered discriminatory and anti-Islamic by many progressive Muslim scholars.

Another argument against the Muslim Personal Laws is that they violate the principles of gender equality and human rights. Many of the provisions of the Muslim Personal Laws are said to discriminate against women and deny them basic rights, such as the right to choose their own spouse, the right to divorce, and the right to inherit property. These provisions are also said to be contrary to the principles of universal human rights, which are based on the principle of equality before the law.

Progressive Muslim scholars and activists also argue that the Muslim Personal Laws are a result of historical and cultural factors, rather than Islamic principles. These scholars argue that the Muslim Personal Laws were formulated during the colonial period and were influenced by British colonial authorities and local cultural traditions, rather than Islamic law. As a result, they argue that the Muslim Personal Laws are not truly representative of Islamic principles and values.

But the Deoband and Aligarh model of “rationalists”, in their usual obscurantist tactics and obfuscating style, argue that the Muslim Personal Laws are based on Islamic principles and should not be changed or reformed in any way. The implementation of the UCC will require careful consideration and dialogue with all stakeholders to ensure that it promotes equality and does not result in the marginalisation of any community.

(Arshia Malik is a Delhi-based writer, blogger and social commentator.)

Disclaimer: Views expressed above are the author’s own