Reviving the dead letter
Thirty years ago this fortnight, the Supreme Court passed its famous judgment in the Shah Bano case. A Muslim man had divorced his wife and stopped providing for her maintenance. The brave woman fought the injustice all the way to the highest court of the land. Finally, on April 23, 1985, a five-judge bench headed by the chief justice endorsed her claim, upholding an earlier judgment of the Madhya Pradesh High Court that she be provided an allowance sufficient for her needs.
The Shah Bano case brought into conflict two sets of laws: Muslim personal law, which specified that a divorced wife need not be maintained by her husband after the elapse of a period of time (known as iddat); and the Criminal Procedure Code, Section 125 of which specified that "any person having sufficient means" was obliged to support his wife, even if she lived apart from him.
The Supreme Court held that Section 125 of the CrPC applied in this case. In their unanimous judgment, the justices deplored the fact that, under Muslim personal law, "the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent, indeed for no reason at all. And, is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of iddat, the mere fact that he has paid something, no matter how little, absolves him forever from the duty of paying adequately so as to enable her to keep her body and soul together?"
Having dealt with the specifics, the Supreme Court further observed that although Article 44 of the Constitution had called for a uniform civil code, there was "no evidence of any official activity" to bring this about. The court believed that "a common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies".
Why had Article 44 remained what the Court called it in 1985, "a dead letter"? B.R. Ambedkar and the other framers of the Constitution had certainly hoped that the country would have a common civil code. When told that India was too vast a country to have a single law, Ambedkar pointed out that we already had a common criminal code. He also observed that if personal laws were left unreformed, "in social matters we will come to a standstill".
At the same time, both Ambedkar (as law minister) and Nehru (as prime minister) thought it would not be prudent to bring about a common civil code in one swoop. So they first set about reforming the personal laws of the majority community, so as to give individual Hindus (both men and women) the rights to choose their marriage partners regardless of caste, to file for divorce in case of cruelty or incompatibility, and not to take more than one spouse. Other reforms were aimed at elevating the position of women specifically; thus, for the first time, the widow and daughters were awarded the same share as sons in the property of a man dying intestate.
One reason Ambedkar and Nehru first reformed Hindu laws was that a large body of Hindu liberals supported them, they were numerous and powerful enough to offset the opposition from reactionary bodies such as the Hindu Mahasabha and the Rashtriya Swayamsevak Sangh. Even so, it took almost a decade for these new reforms to be pushed through Parliament. After they were enacted into law, the constitutional scholar, Marc Galanter, praised them as a "wholesale and drastic reform" which "supplants the sastra as the source of Hindu law".
Ambedkar and Nehru hoped that, in time, a similar groundswell of progressive energy would emerge within the Muslim community, so that their personal laws could also be amended in line with modern notions of gender justice. Sadly, this did not happen. However, in 1985, the Supreme Court verdict in the Shah Bano case reopened the debate on a common civil code. At the time, a professedly modern-minded man, Rajiv Gandhi, was prime minister; and his party, the Congress, had more than 400 MPs in Parliament. Why did he not seize the opening provided by the Supreme Court to legislate a progressive civil code to apply to all citizens of India?
In fact, Rajiv Gandhi's first instinct was to welcome the Shah Bano judgment. When conservative Muslims attacked the Supreme Court in Parliament, they were spiritedly rebutted by a Union minister who was himself a Muslim, Arif Mohammed Khan. However, the prime minister was then persuaded to distance himself from Arif Khan, on the grounds that if he supported him the Congress would lose the "Muslim vote". So, whereas the brave and just course would have been to use his majority to push through legislation safeguarding and enhancing the rights of women, Rajiv Gandhi instead took the cowardly step of using his majority to overturn the Supreme Court judgment.
Thirty years later, Article 44 remains a dead letter. Occasionally, there are attempts to bring the debate back to life and, when this happens, one sees a rather curious alignment of forces. The Bharatiya Janata Party, whose ideological forbears bitterly opposed the reforms of the Hindu personal laws (on the grounds that it gave Hindu women too much independence), now claims to be in favour of a common civil code. Meanwhile a Congress that claims to be upholding Nehru's legacy opposes any such moves, although Nehru himself had hoped that a common civil code would eventually come about.
One expects nothing better from the Congress nowadays. But what is truly puzzling, and even somewhat sad, is how many prominent liberals and feminists have themselves shied away from arguing in favour of a common civil code. Surely equality before the law is a fundamental liberal precept? And the ending of laws that discriminate against women (as personal laws of religions certainly do) a core feminist project? Is it merely that, since the BJP claims to be in favour, they must be against?
In the aftermath of the Shah Bano controversy, the scholar-activist, Vasudha Dhagamwar, wrote a short book, published by the Indian Law Institute, entitled Towards the Uniform Civil Code. I would strongly recommend it, not least to liberals and feminists, for its fair-minded representation of the debate as a whole, and for its intellectual and ideological consistency in arguing for a civil code common to and for all citizens of the Republic.
Part of the movement for a common civil code undoubtedly comes from a desire to impose uniformity and thus hasten national integration. Hindutva ideologues additionally argue that the failure to thus far bring about a common code is because of an alleged "appeasement of minorities". The question is, if indeed successive Congress governments have (as the Hindu Right claims) pampered Muslims, why is the community still so poor and vulnerable? Dhagamwar has the answer, when she observes that "the saddest part is that the minorities are not pampered, though their obscurantist, self-serving leaders may well be".
Dhagamwar also emphasizes that "Muslim society is not a monolith". At the time, the Shah Bano judgment was supported by many Muslim intellectuals and women's rights activists, but these were drowned out by the hysterical cries from hardliners that the Supreme Court had put "Islam in danger". Thirty years later, many Muslims (as well as many non-Muslims) would agree with Shabana Azmi when she writes that "for far too long women have been victimized and justice has been denied to them under the pretence of personal law".
Dhagamwar quotes the great historian of Islam, A.A.A. Fyzee, who remarked that "the process of evolution is co-terminous with human society. Nothing is static except that which is dead and lifeless. Laws can never be static." The laws of Manu sanctioned untouchability, but that pernicious practice was abolished by the Indian Constitution. In the same way, it is irrelevant whether the Quran does or does not sanction polygamy. The question is whether a society professing modern notions of gender equality should.
A further argument in favour of a common civil code is legal clarity. For, as Dhagamwar points out, "the legal maze [in India] is bewildering enough without retaining a wide permutation and combination of laws which create rights [for] some and take them [from] another depending on their religion".
Some feminists have opposed a common civil code on the grounds that it would lead to forcing "Hindu laws" on the minorities. The argument is specious. What one is asking for is not the extension of the Hindu personal law reforms of the 1950s on those Indians who are not Hindus. For law is not static. And we now know that those reforms, while substantial, were in some ways flawed and in other ways incomplete. Sixty years later, we need the best legal minds in India to come together and reframe a common civil code from first principles, based on the state of knowledge today.
Many liberals seem to oppose a common civil code merely because the BJP claims to support it. This knee-jerk reaction is unfortunate. For a principled liberal position would be in favour of a common law to regulate the social practices of marriage, divorce, succession, inheritance, and adoption, this based on the best practices of all laws anywhere in the world, the judgment and selection done from the point of view of gender equality.