Uniform Civil Code Or Codified Personal Law?

In the background of a bunch of writ petitions filed before the Supreme Court, by some Muslim women’s organizations and individual victims, challenging the regressive and arbitrary practices of triple talaq, halala and polygamy among India’s Muslims, the Law Commission has come out with a questionnaire on the viability of a uniform civil code. The timing of the release of this questionnaire, close on the heels of the Union of India’s categorical stand against these arbitrary and unconstitutional practices before the Supreme Court, has raised concerns in the minds of those pressing for serious reforms in the personal laws of India’s Muslims. One concern is that, this would enable the All India Muslim Personal Law Board – a self-appointed custodian and defender of Islam – to whip up a fear psychosis in the Muslim community and stonewall any meaningful outcome in the pending legal proceedings. Predictably, the All India Muslim Personal Law Board has issued a call to all Muslims to boycott the questionnaire. That this stand is immature, illogical and shortsighted is not surprising given the fact that the Board is like Rip Van Winkle who wakes up once in 20 years to scream that Islam is in danger.

It is for the Muslims of India to now exercise their collective wisdom and decide the response to such a perceived threat to their identity. It has been pointed out by a few people that the use of the word “common”, with reference to the civil code in the Law Commission questionnaire, instead of “uniform” used in Article 44, is mischievous as it reflects the Sangh Parivar’s avowed objective of submerging all the diverse cultural and religious identities into a “one culture, one nation” identity known as “Hindutva”. The words of the Law Commission–“to harmonize the various cultural practices” – to express its objective, further reinforce this suspicion in the mind of a beleaguered community which is facing continuous onslaughts from the over-enthusiastic cohorts of the ruling dispensation. To add insult to injury, most of the questions pertain to Muslim personal law.

Having said that, what should be the response of the Muslim community to the questionnaire? Should it, (as mandated by the AIMPLB), boycott the questionnaire, or, should it participate in the debate and express its views on the viability and need or otherwise of a uniform civil code? Logically and rationally the answer would have to be “Yes” for the latter proposition. By boycotting the questionnaire and stonewalling any debate or discussion, the Muslim community is rendering itself vulnerable to a “common” civil code being thrust down its throat. And, if this common civil code has a tinge of saffron flavor, then the community will have only itself to blame. On the other hand, by participating in the debate, the Muslim community would be demonstrating its openness to the democratic process and retain the moral right to question any code that seeks to submerge its core identity and values. And in this, the community would find support, not just from other, similarly placed, minority communities, but also from sections of the majority community itself.

It is also time for the Muslim community to introspect on how things have come to such a pass. That the “Shariah” law as practiced in India falls short of meeting the evolved standards of gender justice and equality is a given. Practices like triple talaq, halala and polygamy, steeped in patriarchal and medieval narratives, can hardly be regarded as just and fair. The moot question is - are these practices really an integral part of the “Shariah”? Even a cursory study of the history and evolution of the Muslim Personal Law would reveal that the Quranic injunctions and hadith traditions were subjected to a process of logical study, interpretation and deduction by ordinary mortal minds having no pretensions to divinity. Their conclusions are known as “Fiqh”. In India, Fiqh underwent substantial distortion under the British rule and evolved as Anglo-Mohammedan law, which actually passes off as the “Shariah”. Leaving aside the distortions brought in by the British jurists, the fact that the law could be interpreted by those living in the 7^th to the 11^th centuries to suit the then social conditions, leads to the logical conclusion that the changed social context warrants fresh interpretation by modern minds.

When the Hudood injunctions prescribing gruesome punishments for moral offences (such as stoning to death for adultery, amputation of limbs for theft and beheading for murder) could be replaced with more humane visitations like imprisonment under a uniform penal code, (notwithstanding the spiritual mandate that the offenders who escape punishment in this life would suffer more gruesome punishments in the Hereafter), there is no reason why unjust practices like triple talaq and polygamy, (which are at best only permitted and not mandated), should not be given up.Why can’t Muslim men give up these misconstrued rights,which are not an essential or integral part of the practice of the religion?

Islam, as originally conceived, was a reformist movement that brought about sweeping changes in the established patriarchal system existing in the Arabian peninsula in the 7^th century AD. Unrestricted polygamy, polyandry, female infanticide, buying and selling of women and many other hedonistic practices were put an end to. The rights of women to hold property, to consent for marriage and to seek dissolution of an unhappy marriage were established and enforced. Traditions attributed to the Prophet of Islam even go into minute details of how gently and lovingly men should treat their wives during coitus. The Quran declared that husbands and wives were a raiment unto each other, thereby recognizing and reiterating the equality of status between men and women. Practices like conditional polygamy were no doubt permitted, but under the circumstance of a lopsided male-female ratio caused by the ravages of prevailing wars. In the present era, where the converse ratio exists and where women command an equal status with men in terms of education, fiscal freedom and physical independence, it would be anachronistic and absurd to say that polygamy has any validity or justification. To retain polygamy, restricted, conditional or otherwise, in a country governed by a secular, democratic Constitution would be undermining the express promise of equality and the right to a life of dignity. The Quran itself unequivocally emphasizes monogamy.

Marriage as a contract is itself a revolutionary concept. It presupposes equality between the contracting parties. When a marriage cannot be contracted without the consent of both parties, it cannot also be terminated except by consent of both parties or through a process of arbitration (as prescribed in the Quran) or through judicial intervention (as practiced in many Muslim countries). There cannot be a unilateral, arbitrary and whimsical termination of the contract by one party alone without inviting penal consequences. Obviously, capricious practices like triple talaq and polygamy, are antithetical to the very idea of equality, which underlies an Islamic marriage. In this context, Muslims have to understand that there is nothing in the Quran or the Hadith traditions that prohibits a progressive approach to matters of social intercourse. It is wrong on the part of the Muslims to claim that giving up these unjust practices would be compromising on their religious identity. The core identity of a Muslim is the belief that there is one God and Mohammed is His Messenger. This belief is the essence of Islam and defines the real identity and faith of a Muslim and this is what is protected under Article 25 of the Constitution of India. Secularism is not a millstone to be hung round the neck of any one community. It is a liberating, and yet uniting, principle enshrined in the Constitution. It upholds the right to a life of dignity and equality and therefore binding on all.

The Muslims have missed the bus by failing to get the personal law codified in conformity with the principles of equality and justice enunciated by the Quran and enshrined in the Constitution. The Muslim Personal Law (Shariath) Application Act, 1937, makes the “Sharia” applicable to the Muslims of India. However, the absence of a definition of Sharia, has lead to chaos with seminaries and scholars issuing conflicting fatwas on the same issues. The victims of this chaos are not just the women but also the men. A codified personal law would usher in the much needed clarity and consistency. While the AIMPLB slept over the idea of codification, the Bharathiya Muslim Mahila Andolan, a women’s organization based in Mumbai, boldly came out with a draft code. However, this courageous effort was met with cynicism and derision.  Now, with the prospect of a uniform civil code looming large, it would be wise to give up the paranoia and engage in a reasoned debate with the government and ensure that the secular values, religious plurality and cultural diversity, which define the greatness of this country, are not compromised at the alter of uniformity. An effort can still be made to get the personal law codified.

AJ Jawad is a practicing Lawyer and Mediator at Madras High Court.

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