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Sunday, October 30, 2016

Don't let the Uniform Civil Code scuttle triple talaq reform

By Swapan Dasgupta

Much more than the cross-LoC raids on terrorist staging posts, the winter session of Parliament is likely to be dominated by the contentious subject of Muslim personal laws. While politicians are a little wary of wading into a subject that is before the Supreme Court, a proxy war is in the offing over a Uniform Civil Code for India.

The Law Commission, whose role is purely advisory, has begun consultations on a theme that finds mention in the Directive Principles of the Constitution but has never been acted on. This in turn has provoked protests by Muslim organisations, including the Muslim Personal Law Board. Following the Union Government’s affidavit in the triple talaq case and the Prime Minister’s intervention on the matter, there is a feeling that the proposed reform of Muslim divorce procedures is the thin end of the wedge. Despite Finance Minister Arun Jaitley’s clarification, Muslim groups—alas, very male dominated—believe that the BJP is set to act on its long-standing commitment to a UCC.

That the outlawing of triple talaq is certain to be a feature of any future UCC is undeniable. The belief in common personal laws is centred on two planks. First, there is the belief that all citizens must be governed by the same laws governing marriage, divorce, inheritance and adoption. These laws in turn must be based on contemporary values that ensure equity and gender justice. Secondly, the advocacy of a UCC proceeds on the belief that religion involves the relationship between an individual and his/her God and that modification of custom doesn’t constitute a challenge to faith or religious identities. India is unlikely to ever accept, say, French secular traditions that even frowns upon the outward trappings of religious identity. A UCC, for example, may insist on the registration of marriages (and the laws governing divorce) but it will not dictate the rites and rituals of the ceremony itself. Muslims in Europe and North America haven’t lost their faith simply because they are governed by laws applicable to all citizens. And even in India, Muslims are governed by common criminal laws and not those stipulated in the Sharia.

In any case, the formulation of a UCC for India is still a long way off. The Law Commission may have begun preliminary consultations on the subject but the exercise of reconciling different personal laws of the various communities is certain to be an elaborate affair and must be accompanied by a large measure of consultation, persuasion and accommodation. To suggest that the Narendra Modi government is intent on ramming a hastily prepared UCC down the throats of all Indians before the 2019 election is at best needless alarmist and at worst governed by a polarising political agenda.

It would seem that there is an attempt to deflect attention from the real issue: the morality of triple talaq in a contemporary society. In the Shah Bano case of 1985-86, the Supreme Court offended Muslim orthodoxy by sanctioning alimony payment to a divorced Muslim woman. At that time, the Rajiv Gandhi government caved in to political pressure and enacted a regressive law that overturned the judgment. Since then, the courts have corrected other iniquitous practices such as the denial of prayer rights to women at Hindu and Muslim shrines. These judgments, fortunately, have been respected.

If there is now a growing body of legal precedence upholding gender equity, it is possible that the triple talaq system may be struck down by the Supreme Court. On this limited matter—as well on the right of Muslims to have multiple wives concurrently—there appears to be a loose consensus favouring reform. Moreover, in view of the grave perversion of triple talaq, there is a gender divide that implicitly challenges the right of theologians to speak on behalf of all Muslims and pronounce that Islam is in danger because women have been given marital rights. No wonder these custodians of faith are attempting to enlarge the battle and ensure community solidarity on an issue over which there is neither information nor consensus. Ironically, by waving the UCC flag quite mindlessly, the BJP’s over-zealous supporters are falling into the trap.

The coming months are certain to see much huffing and puffing over a UCC. No doubt some of the debate will be educative but there is also a danger that it could produce a contrived polarisation, and derail attempts to put an to a practice that denies a large number of Indian women dignity and justice.

Sunday Times of India, October 30, 2016

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