The Telegraph
Since 1st March, 1999
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Without understanding the basics of the uniform civil code, much has already been said on the subject. This is not to doubt anyone’s intentions, but only to emphasize that the problem does not lie in the efforts to make law uniform. Law, irrespective of which religion or community it belongs to, are framed by a patriarchal society and is often anti-woman in perspective. A uniform civil code, if it comes into practice, has to ensure that this basic injustice is not written into it.

Uniformity in law is important, but it should not come by a court order. The change has to come from inside. Besides, more than national integration, what a uniform civil code should aim is to address the basic needs of people. This is unlikely to happen given the predilections of a saffron government. The Supreme Court seems to have merely rejuvenated a controversy that will give an upper hand to sanghis and vitriolic mullahs.

The need for a common civil code had been felt because of the exploitation of Islamic law by other communities. Hindu men often changed their faith to marry another woman without divorcing the first. Instead of curbing this vicious tendency, it was decided that a uniform civil law was the need of the hour. But progress towards uniformity was offset by the government’s own volte face. The Rajiv Gandhi government in 1986 overturned the Supreme Court ruling on the Shah Bano case and introduced the Muslim Women (Protection of Rights on Divorce) Act to boost the Congress minority vote bank.

Seize the moment

A similar movement is in progress today. The talibanized Hindutva of the sangh parivar is trying to make sure of its majority vote bank. No wonder the saffronites have seized the opportunity. While they show no interest in following up the apex court’s observation on the Ram Mandir deadlock, they have pounced upon Justice V.N. Khare’s observation on the uniform civil code. But the Bharatiya Janata Party, having hurriedly taken up the civil code mantle, does not realize that a injudicious implementation of such a body of law will even more detrimental for Hindus, whose umpteen sects have their own laws to govern them.

Can a common civil code work in India' Unlikely. Even if the heads of all faiths and communities were to come together, it would be impossible to frame such a common civil code. It is just as improbable as a common diet for all communities and common rituals for the whole of India.

The Indian social set up is a conglomeration of different faiths. It cannot be fitted into a straitjacket of a common civil code. Although those arguing in its favour may say that there is less of Hindus versus Muslims in it than modernism versus orthodoxy, there is no doubt that the communal side to the issue cannot be ignored.

Clash of interests

There are people who argue that a common civil code is necessary to stop Muslims from practising polygamy. But need we remind them that there are more people of other communities practising polygamy than Muslims'

A pertinent question that arises is the extent to which scriptures and traditions of any religion should be allowed to thwart the norms and values enshrined in the Constitution. But no retrogressive religious practice should be allowed to overlook constitutional directives. What is important to note is that in a vast country like ours where people have to serve the dual loyalties to religion and the Constitution, there are bound to be clashes between the two interests. If this undermines the harmonious existence of different faiths, the law should have immediate precedence.

No individual or community has the right to carry on with its injustice to women in the guise of retaining their religious identity. Which is probably why the Mumbai high court recently ordained that divorces between Muslim couples had to be convincingly proved in the court of law under the Indian Evidence Act. The same spirit should inform the uniform civil code.

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