Since the Law Commission has called for suggestions on the proposed Uniform Civil Code (UCC), there have been a lot of debates and discussions about the various issues. A number of attempts have been made to create confusion on the subject in the name of minority rights and tribal rights. Sr lawyer and a nominated Member of Rajya Sabha, Mahesh Jethmalani, spoke to Editor Organiser Prafulla Ketkar to give clarity on the issue related to the idea and intent behind the UCC
Even after 73 years of enacting the Constitution and Supreme Court in various judgements questioning the Union Government on the same, why is there a hue and cry about the entire debate on the Uniform Civil Code? Why is there so much focus on imposition of uniformity instead of civil rights? How do you see it constitutionally and legally?
Look, there are three sections from which this opposition is coming. First is the political opposition; the lead voice is Kapil Sibal. But to be fair to him, he does say, let us see the draft bill be presented first. So, you know, we will cast that aside. He said there is a motive, and, as always argued, the 2024 elections are approaching. What is the hurry? Why suddenly, why not all the nine years that the BJP was in power? But the fact of the matter is that the 21st Law Commission has been examining this since 2016. This has been an ongoing debate; probably, Mr Sibal needs to be fully aware of it. We have seen this happening in the Parliamentary Committee on Law and Justice. There was a 21st commission. It gave a report but didn’t fructify to the point of a specific recommendation. And it is true that they certainly did not have a Uniform Civil Code on the platter. As an alternative, they suggested massive and complex amendments to various personal laws, whether it’s a Parsi Marriage and Divorce Act, the Sharia Act or the Indian Divorce Act, which applies to Christians. So now, instead of going into each act, and overriding them, is it not better to have a new law? If you don’t like the word uniform because you are so passionate about diversity, call it the Indian Civil Code.
“The idea of a Uniform Civil Code has nothing to do with A religion or B religion; Nothing at all. It has got to do with civilisational advancement; it is for gender empowerment and child protection”
Secondly, since 2016, there has been a 22nd Law Commission, and a seven-year debate is going on. And as far as the BJP is concerned, it’s been part of its manifestos since it came to power in 2014. Ever since 1980, a Uniform Civil Code has been a prime aspect of BJP’s manifesto. The fact that it took it seven years should be welcomed. Nobody asked the Law Minister then why did you constitute the 22nd Law Commission. So there has been enough procedural part that has been followed.
What about the criticism of bodies like the All India Muslim Personal Law Board?
This is the second area of criticism – what I call the vested interest section. The All India Muslim law Board opposes it since they are there for their personal laws. I mean, the way they’re named, the very title of the NGO suggested the need to protect the personal lawyer at all costs. Since the Shah Bano case, AIMPLB has been an obstructionist force. For Muslim women, they are saying Section 125 (of the CrPC) should not apply. And then we had the shaman whose judgement was overturned by the 1986 Act passed to appease a secular Muslim community, which nobody knows whether it’s really representative or not. Then Kapil Sibal comes, who is the constant advocate for the AIMPLB in the courts. He will follow the suit of opposing, apart from his political opposition, right. AIMPLB comes out with opposition, and then Kapil Sibal comes out in media with some interviews, so there is some kind of linkage there also.
What do you have to say about the attempt that is being made to raise the issue of tribal rights with reference to UCC.
This is the third section, and it is probably the most valid section. The tribals have been constitutionally protected anyway under 371A, especially their customary laws. Even their customary law procedures are protected; no act of Parliament will apply to them. In the case of Nagas and 371G, I think the case of Mizos are specifically protected. Those tribes with specific customs are the stakeholders, they’ll be invited. They have been neglected all these years when we were under foreign rule, whether it was Mughal or British, or Turkish or Arabic, right? These people have been in remote locations; development has never reached out to them. So they had their practices. Nobody’s suspended them; they will be stakeholders. They can continue with Constitutional protection if they want it. One thing should be clear – the idea of a Uniform Civil Code has nothing to do with A religion or B religion; Nothing at all. It has got to do with civilisational advancement; it is for gender empowerment and child protection.
That was the spirit of the Constituent Assembly, especially when Dr Babasaheb Ambedkar argued
for the UCC.
Yes, we have to understand that almost all societies, except those matrilineal rights, were discriminatory against women. Even in Western democracies, the entire women’s emancipation movement had to be built even to claim the right to franchise. There are reasons why the Uniform Civil Code is salutary from a national perspective, apart from the fundamental fact that gender equality is a cause whose time has come. You can’t leave women out of the development race. And it is a nationalist move because you empower women and make them productive assets of a nation. If you keep them in subservience, you don’t emancipate them by giving them property rights like men; why should they start at a handicap? Today the women of our country are at the forefront of all sectors of life – sports, space travel, armed forces, sciences etc., and they are doing this despite some provision in the Hindu Code Bill. But, the same Hindu Law has brought many reforms contrary to the Hindu texts. We can see that in the Constituent Assembly debates also.
How to bring civility to this debate?
What are the issues under the Uniform Civil Code? Mainly, they include marriage, divorce, inheritance and adoption. In marriage, it will be an issue of polygamy. Will the men belonging to those religions which permit polygamy allow polyandry to women on the grounds of equality? If not, then there is a violation of those religious practices of the Constitutional right of Article 14. Then there are issues like halala. The marriage, then practices related to divorce, provisions relating to alimony and maintenance and property at the time of divorce, and the right of adoption, some Muslims don’t have the right to support some Muslim couples who want the right to adopt. Why shouldn’t they have it? Or inheritance, which means substantive progress. Now for the tribal community, this is one area where they’ll have to make a choice now.
“Any reasonable husband or wife and any reasonable parent will want a standard for governing social relations within a family; they would want the family to be governed through equitable principles based on the dignity of everybody”
Regarding tribals, we have to ask them why they don’t want to bring women into parity. People who oppose the Uniform Civil Code are invoking tribal rights; they will try to make it political need to understand that we will be talking to them. Their women may differ from their men. And they’ll have consensus on protection.
Similarly, AIMPLB does not speak for the whole Muslim community. There are a lot of reformers within the Muslim community who want the laws to change. Ultimately, the purpose of the law has to be based on humanitarian grounds, and the proposed draft should clearly talk about it. We are trying to bring religious practices, which are obstacles and tests which do not promote human dignity. We have one form of Civil Code in Goa, and nobody has complained about it. Any reasonable husband or wife and any reasonable parent will want a standard for governing social relations within a family. They would want the family to be governed through equitable principles based on the dignity of everybody. So, that’s all the Uniform Civil Code seeks to do. By having a Uniform Civil Code, which ultimately is the foundation of dignity for everybody, we become Vishwa Guru. It is India’s calling. We need to set high moral standards in every sphere of personal life as well. We’ve already proved it by not being warmongers. So it should be seen in the national spirit, and not narrow political considerations, and the political sense twisted situations are born out of the faction you represent or to appease a particular community. The Law Commission has already received more than 19 lacs responses. Once they are compiled and recommendations are made to the Government, we will have an honest discussion. In a democracy, there will be some opposition from some vested interests; they will try to churn their base for the forthcoming election. I think within the Muslim community also, if you’re looking at media debates on social media, Muslim voices are crying for reform. Even the Muslim World League chief Mohammad Bin Abdulkarim Al-Issa lauded Indian philosophy and tradition that taught harmony to the world and said that he salutes the democracy and Constitution of India. We should produce and show the country and the world that we are producing a harmonious document that will promote the morality and dignity of family members.
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