Why Uniform Civil Code that does not affect religious freedom is hard to imagine
In a landmark verdict, the Supreme Court struck down triple talaq, or instant divorce, and declared the practice unconstitutional by a 3:2 majority. The judiciary’s attempt to eliminate discrimination and arbitrariness of the archaic practice has strengthened the movement for gender justice in the country.
The verdict will bring a paradigm shift in the status of the Indian Muslim women, giving them a sense of equality and empowerment. It is not only a victory for the five women who challenged the 1,400-year-old practice, but also for hundreds of women suffering silently, who now have an opportunity to redeem their existence and gather the courage to fight against injustice.
While the historic judement comes as a huge relief to millions of women, it brings back uncomfortable memories from the 1985 Shah Bano case of striking resemblance. Shah Bano, who filed a criminal lawsuit against her husband for abandoning her after his second marriage, emerged victorious as the Supreme Court ruled in her favour granting her the right to alimony from her husband.
Interestingly, 32 years back, Rajiv Gandhi overturned the then Supreme Court’s verdict by enacting the ironically named Muslim Women (Protection of Rights on Divorce) Act, 1986 under the pressure of the Muslim clergy, eventually diluting the essence of the secular judgment. The controversial Act gave the right to maintenance to Muslim women for the iddat period (about three months) after divorce, after which they would have to depend on the charity of relatives or the Waqf board. The legal battle initiated by Shah Bano is finally at rest after four decades.
With the changing dynamics of the Indian society, the tide of politics is certainly taking a new direction. After sensing the mood of the nation, the same political lineage, who was once accused of minority appeasement, is now welcoming the judgment, calling it progressive and secular.
From Shah Bano to Shayara Bano, it has been a long journey for the Indian Muslim women challenging governments to uphold their rights to life and liberty under the Constitution. Is it a coincidence that this long awaited judgment is seeing the light of the day amidst the government’s propaganda of fulfilling a long pending agenda of enforcing a common civil code?
The demand for a Uniform Civil Code which started with a movement to seek equal rights for women, sharply divided the members of the Constituent Assembly in 1948. Ambedkar, the architect of our Constitution, demonstrated a strong will to adopt a common civil law because as he put it, “I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for?”
The concept of a common civil code to govern matters of marriage, divorce and inheritance, received a strong condemnation not only from the members of the Hindu Mahasabha and the minority community, but also from the leaders of the Congress as prestigious as Dr Rajendra Prasad. They argued that its provisions would go against their religious beliefs and hence their fundamental rights.
Gradually, in the wake of Partition and the riots that gripped the country thereafter, members decided to put Uniform Civil Code as a part of the Directive Principles, hoping it would be enacted when the time was right.
As the debate still continues, the question remains, how should we go about the task of having a Uniform Civil Code?
India is home to a diverse set of cultures, customs, traditions, castes, languages and religious ideologies. As we take a step forward to communal harmony, we must not fail to assess that such a code can potentially make or break the national unity. What is required is a model that seeks to celebrate our diversities; that does not go against the constitutional guarantee of secularism and the right to practice any religion. But it is hard to imagine a Uniform Civil Code which does not affect religious freedom in times when right-wing fringe organisations are constantly intervening in the secular polity of our country.
The defining feature of a functioning democracy is its adherence to the theory and practice of the fundamental principles of equity, justice and inclusion for all. The government must make every attempt to build confidence among all the religious communities to ensure equality and religion neutrality. Without this, a common civil code can only serve as a threat to the society as against a panacea.