(Mani Shankar Aiyar is a Congress MP in the Rajya Sabha)
My Sikh wife and I were married 41 years ago under the Special Marriage Act, 1954. But for a slight hiccup when I had to suppress a giggle reading the prescribed oath, swearing that I was not married to anyone else “to the best of my knowledge and belief”, the event went off smoothly. If, however, we had contracted a civil marriage before 1954, we would have first had to relinquish our respective religions before the knot could be tied. A Uniform Civil Code was available before 1954 only to agnostics and atheists who had proved their credentials by foreswearing the religion of their ancestors.
This changed in 1954. The Special Marriage Act, read with the Indian Succession Act, 1925 (note the non-denominational adjective “Indian”), constitutes the voluntary Uniform Civil Code we gave ourselves sixty years ago. Yet the very Moditvists who have pledged to impose a compulsory Uniform Civil Code on our minorities have not deigned to explain why they themselves have not availed of the Uniform Civil Code that has been on our statutes for six decades. No, they prefer to get married under the Hindu code and regulate their personal lives in terms of Hindu Personal Law, embodied in a series of four laws enacted in 1955 and 1956 – that is, well after the voluntary Uniform Civil Code was bestowed on the country – while sneering at the minorities who baulk at their respective Personal Laws being substituted by a compulsory Uniform Civil Code.
Why this hypocrisy? Only to mock at Muslims, to claim that the Muslims are reactionary while the majority is progressive. There is no Personal Law more progressive than the laws under which I got married. That was a decision I made reluctantly and only because the priests at the temple my Father had built refused to perform the rites since the girl I wanted to marry was not a Brahmin. They offered instead a whisky priest who would do what was required for a small fee. Furious, I rejected the offer outright and opted instead, with her consent, for us to be married under a modern, secular law.
That modern, secular law being readily available, why did the majority community opt instead for their own Personal Law? Only because Hindu Personal Law is precious to Hindus. In which case, why should their respective Personal Laws not also be precious to other communities?
True, Hindu Law has been codified by Parliament while the other Personal Laws have not. But that is only because Mahatma Gandhi had ensured that our Freedom Movement was not only about ridding ourselves of foreign rule but also of shedding horrendous malpractices that had adhered to the religion and culture of the Hindus to the shame of the Hindu community. Codification had proved possible because it was the unfinished business of the struggle for Independence.
Indeed, long before Independence, in 1941, the British Indian government set up a Hindu Law Committee under B.N. Rau that took 6 years to complete its toils and reported to the Constituent Assembly on the eve of Independence. Another eight years were taken in getting the Hindu Marriage Act passed in 1955; the Hindu Succession Act in 1956; the Hindu Adoption and Maintenance Act, also 1956; and the Hindu Minority and Guardianship Act, also of 1956. Numerous amendments have since been brought to these laws, and this will doubtless continue. It could be regarded as a ‘work in progress’. To expect other communities to act any sooner to reform their own laws would be invidious.
It may also be noted that in the many debates in Parliament on the legislation that derived from the Rau committee’s Hindu Code Bill, it was only Hindu MPs who took part; there was little or no Muslim, Christian or Parsi participation – for the non-Hindus felt, quite correctly, that it was for the Hindus, not others, to reform and codify their law. Then why should non-Muslims tell Muslims or other non-Hindus how to reform themselves?
Reform is not easy. Hindu conservatives, from the President, Dr. Rajendra Prasad, down fought a rearguard battle to fend off reform as long as they could. And introduced so many loopholes in the code that there are more bigamous and polygamous marriages among Hindus than Muslims (1961 Census and 1974 Committee on the Status of Women). Besides, as a result of an amendment brought in 1964 to the Hindu Marriage Act, now, under Hindu divorce law, Hindu wives can be “simply expelled from the matrimonial home when the husband state(s) that, as far as he is concerned, the marriage ha(s) broken down”. Tripletalaq anyone? (I am not quoting myself, but an eminent jurist, Prof. Ajay Kumar, Dean of the Faculty of Law, Ambedkar University, Lucknow in his magnum opus, Uniform Civil Code: Challenges and Constraints, 2012). He goes on to quote another authority on Hindu law, Dr. JDM Derret, as saying the subsequent Marriage Laws (Amendment) Act, 1976 has led to “still more amazingly gender-insensitive case law”. Flavio Agnes’ celebrated article in The Economic and Political Weekly, 16 December 1995, documents a whole sheaf of such vicious case law.
Moreover, as Vice-Chancellor Farzana Mustafa of NALSAR University of Law, Hyderabad asks with regard to reformed Hindu law, “Has it resulted in the upliftment of Hindu women? How many Hindu women get a share in property? The amount of land actually inherited by Hindu women is only a small fraction of the amount of land they are entitled to under the reformed Hindu law. Changes in law do not bring about necessary social reform” And she concludes, “Normative changes in law certainly do not bring about necessary social reform”. (The Hindu, 2 July 2014).
Which leads us to the key point, that is, reform must come from within a community if law is to translate into social changes on the ground. That is precisely what the Bharatiya Mahila Muslim Andolan (BMMA) is engaged in doing. Noorjehan Safia Nawaz, co-founder of BMMA has been quoted in The Hindu magazine section of 29 June 2014 as saying that after consulting with a wide cross-section of mostly poor Muslim women, running to thousands in 10 states over a period of seven years, they have drafted a new “Muslim Marriage and Divorce Act”. She says, “Let the community debate our draft first”.
As several Muslim countries, including Pakistan, have shown, reform of Muslim Personal Law is certainly as feasible as the reform of Hindu Personal Law – but, as in the case of Hindus, only when the pressure for reform comes from within the community. Imposition from outside, especially when the community is in a minority, cannot but be resisted. That is why Begum Safia Nawaz states categorically, “We oppose the Uniform Civil Code”. They want the Personal Law of their community to continue but believe they can reform it from within. Surely any patriotic Indian would laud that initiative.
It is argued, among others in obiter dicta pronounced from the Supreme Court, that a Uniform Civil Code would strengthen national integration. Quite to the contrary, attempts to precipitate legislation without general consensus will only provoke communal tension, even as denigratory remarks about another community’s beliefs and practices only results in national disintegration. If, impatiently, we move to reform Muslim Personal Law by Parliamentary decree in a Parliament where Muslims are woefully under-represented, and before a consensus evolves within the Muslim community on the nature and details of reform, we would be in danger of transgressing the Constitution’s “country-specific and situation-sensitive method of handling complex socio-legal issues.” Kumar hits the nail on the head when he argues that because the Constitution “is typically Indian, full of the recognition of differences between various groups of people and respectful of diversity at many levels”, it has succeeded in promoting “the existing plurality of laws, with the Personal Law system as a central element re-anchored within the over-arching framework of the Indian Constitution”. At the same time, says Kumar, “The Indian State has acted purposefully, albeit silently, surreptitiously, cautiously and gradually (in) harmonizing various Indian personal laws along similar lines without challenging their status as separate personal laws.” He cites, by way of example, the Prohibition of Child Marriage Act, 2006. That is the intelligent way forward.
So, while putting any Uniform Civil Code on hold, the Modi government might like to make a beginning towards giving the country a Uniform Fiscal Code. Why tax concessions for only Hindu Undivided Families (HUF)? Why not for any Undivided Family whatever the community? One expects Finance Minister Arun Jaitley to respond to that googly in his Budget speech next week.