A mega gathering of Muslim organisations was held in Deoband, Uttar Pradesh, last month. On issues such as the controversy over Kashi’s Gyanvapi masjid and Mathura’s Shahi Idgah, the gathering recorded its “deep resentment and dislike” towards those who were “trying to spoil the peace of the country by raking up disputes on ancient religious places”.
A resolution adopted by the Jamiat Ulama-i-Hind at the meeting said it was clear that “the campaigns being run in the name of rejuvenating old disputes and correcting the so-called historical wrongs and excesses do not benefit the country in any way.”
So far so good.
But the resolution went on to oppose the Uniform Civil code (UCC), which, it said, “clearly interferes with Islam’s laws.” These personal laws, the resolution declared, “have not been created by some society, community or person or group but come from religious texts… They are part of our religious directives.” Any attempt to do away with personal laws and replace them with a common civil code “is a clear interference with Islam.”
Okay, I thought to myself, here we go again.
In a political scene that is so dynamic, where issues change week after week, one issue where nothing changes is the debate on the Uniform (or Common) Civil Code. I pulled out a column I had written on the subject two decades ago and realised that I could just have reprinted it instead of writing a new one. It makes as much sense now as it did then.
Also read: Uniform Civil Code can be the real unifying force in India. Critics must think again
Secular vs religious India
There are two ways of looking at India. The first is the secular way, where you say that you respect all religions but you believe that there should be a distinction between religious belief and the law of the land (and governance as a whole). Laws must be based not on some so-called divinely ordained principle but on the basic human rights that a liberal democracy guarantees to its citizens.
We believe that everyone is equal. So no matter how ancient the caste system is, we will not, say, treat Shudras differently from Brahmins. There is no place for untouchability in our country. Women must have the same rights as men, no matter what it says in some ancient scriptures.
The secular approach was accepted when it came to criminal law and it was the choice of many of the framers of our Constitution. Both Jawaharlal Nehru and B.R. Ambedkar believed that in matters pertaining to marriage, adoption, inheritance, divorce, etc., different religions’ different laws should be replaced by a civil code that would apply uniformly to all Indians.
A second way of looking at India is through the prism of religion. Many Hindus objected to the changes Ambedkar and Nehru wanted to make to personal laws. For instance, there was opposition to reforms in Hindu personal laws, whereby polygamy was outlawed in 1955.
A section of Muslims were even more opposed to changes in their personal laws. In the heat of the post-Partition atmosphere, they took the line that to abolish or amend Muslim Personal Law (Shariat) Application Act, 1937 would suggest to those Muslims who had opted for India over Pakistan that they would have to follow Hindu laws and that their community would lose its distinctive character.
Eventually, the secularists lost. India opted for a complicated system where every community followed the same criminal law but had its own set of personal laws, which differed substantially on subjects such as polygamy, divorce, and adoption. The framers of our Constitution had to be content with putting the need for a Uniform Civil Code into the Directive Principles, a section of the Constitution that is not binding.
Matters would have remained there except for political developments. The Muslim political leadership has constantly told its followers that they must resist any attempt to reform their personal laws. When the Supreme Court’s 1985 judgment in the Shah Bano case appeared to have the effect of forcing unwilling Muslim men to pay maintenance to their divorced wives, the Muslim leadership rose up in arms.
Meanwhile, Hindu leaders (or those who identify themselves as such) have kept demanding a uniform civil code. They do this, perhaps, not out of any sense of secularism but to tell Muslims that because they have opted to live in India, they must follow Hindu laws.
Also read: Indian Muslims aren’t saying Uniform Civil Code is bad. It’s just that Ashraafs have a problem
Faced with this religious intransigence, there is only one solution for secularists. They must set up a multi-religious council that devises a uniform civil code that is not just a rehash of Hindu personal laws but also takes into account Muslim sensitivities.
This may not be easy to do. But it is not impossible either. And it offers sensible laws for a country like India where, absurdly, one man can be arrested for bigamy while his neighbour can have four wives.
But here’s the bizarre thing: secularists don’t want to have anything like this. They don’t want a Uniform Civil Code. They want multiple personal laws. Even those who say they venerate Ambedkar and Nehru reject their appeal for a common civil code.
Surely this makes no sense? The essence of a secular approach to India is to support laws that are made in accordance with the guiding principle of equality before the law. Surely no secularist can believe that India should accept laws only because of religious claims, that this is how it is written in the scriptures and that is how it must remain?
And yet, the secularists are firmly opposed to a Uniform Civil Code. This, despite the fact that the arguments offered by those who want to keep, say, the existing Muslim Personal Law, are the antithesis of a secular approach to India. How can any secular person support the argument made at Deoband that personal laws cannot be changed because they were divinely revealed in Muslim religious texts?
When you put this objection to secularists they respond with statements like ‘there is no hurry’ or ‘Muslims will react badly’. Or, ‘the time is not right.’
But if the time has not been right for decades, then when will it ever be right? Yes, there is a danger that this will be seen by the Muslim minority as one more assault on their rights. But that is only because, in all the years it was in power, the Congress never had the guts to do the right thing. And now, Muslim leaders will politicise the issue and tell their followers that Islam is in danger.
Also read: Same family laws for all faiths — what’s Uniform Civil Code, and what courts say about it
Choice before liberals
I am no fan of the Narendra Modi government’s attitude to Hindu-Muslim issues. As I have often written here, the government’s intention often appears to be to provoke, demean, and divide. But it does not follow that secular liberals must oppose everything the Modi government does without upholding their own secular principles. As Ramachandra Guha—no Hindu communalist—wrote in 2016, “In my opinion, left-wing intellectuals who oppose a common civil code disavow the progressive heritage of socialist and feminist movements in India and across the world. They are — whether they sense it or not — apologists for the status quo, whose tortured and convoluted arguments only serve the interests of Muslim patriarchs and the Islamic clergy.”
When Guha wrote those words, the debate was academic. Now, it is much more real. The Modi government may choose to impose a Uniform Civil Code before the 2024 Lok Sabha election. In Uttarakhand, the BJP government has formed a five-member panel headed by a retired Supreme Court judge to draft a UCC for implementation in the state.
If a pan-India UCC happens, secular liberals have to decide: do they oppose it because it comes from the BJP? Or do they uphold their principles?
Of course, any Uniform Civil Code must be formulated through consensus and must respect the rights of every community. It must be evolved after consultations with every community. Attempts must also be made by the Modi government to reassure Muslims at the bottom of the social pyramid that this is not an attack on Islam.
But my fear is that secular liberals, disgusted by the Hindu triumphalism that will probably accompany such a move, will forget their own secularism and liberalism and oppose a Uniform Civil Code. In today’s polarised environment, there is no room for debate or thoughtful consultation.
You are either for everything the government does. Or you are against it.
That’s what politics has been reduced to, alas.
The author is a print and television journalist, and talk show host. He tweets at @virsanghvi. Views are personal.
(Edited by Prashant)