By Express News Service
Prime Minister Narendra Modi’s recent statement on Uniform Civil Code (UCC) has kicked up nationwide debate on the proposed equal rights law. While many Muslim organisations have opposed the move, political parties hold different opinions on the same.
Kerala Governor Arif Mohammed Khan who has been a proponent of gender justice and equal rights for Muslim women, says that the Uniform Civil Code should be implemented in the country, not merely because it is part of the directive principles, but because the existing legal arrangement violates both the fundamental right of equality before law and equal protection of laws.
In an interview with Anil S, the Governor also criticised the Left parties for doing a volte-face in their stance on the UCC.
The Centre is now mulling over implementing the Uniform Civil Code and the same has invoked stringent criticism from various quarters. What is your position on this matter?
We are a vibrant democracy and everyone has the right to give expression to her opinion. My stand is the same which is spelled out in the Constitution of India which makes it obligatory for the State to secure a uniform civil code for all citizens throughout the territory of India. I feel that UCC should come not merely because it is part of the directive principles but more importantly, the legal arrangement that exists violates the fundamental right of equality before the law and equal protection of laws.
Today every person who goes to court to seek justice in matters pertaining to personal laws receives justice on the basis of her religious faith. Two persons similarly circumstanced will not receive similar justice because they belong to different faith traditions. I feel that any judicial scrutiny would reveal that personal laws are violative of fundamental rights and they are an obstacle in the path of uniformity of justice.
A few political parties, including the CPM and IUML, have lashed out against such a move, terming it anti-women and anti-minority. Do you believe such opposition stems from political rather than ideological differences?
Muslim League I can understand because they had raised this bogey even before Independence and had demanded the partition of India to safeguard the Muslim religion, culture and language. It is a different matter that after partition, the new dominion Pakistan changed these personal laws in 1962 and not only banned triple divorce but also placed restrictions on polygamy.
What is surprising is the volte-face staged by the Left which at least till 1990, was vocal supporters of UCC and gender justice. In 1986, when I resigned from the Central government on the issue of Shah Bano, Mr EMS Namboodripad, Left parties and BJP had supported my stand. Since Left parties had earlier supported the UCC, I think they owe a duty to the people to explain why they have changed their stance so radically and now are ready to align with parties who were described by them as communal.
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Those opposing the UCC have pointed out that the Centre could instead review existing discriminatory practices in personal laws of various religions. Would you concur with such an approach?
The Centre must stand by the Constitution, which is clear on this issue. If those who are opposed to UCC feel that gender justice can be ensured through some other methodology then it is their duty to prepare the draft and submit it to the Law Commission and to the government and I am sure that it will receive due consideration.
Opposing parties have pointed out that any demand for such reform should arise from within a particular community. As someone who has always advocated equal rights for Muslim women, do you feel that such reformatory awareness does exist in present-day society?
This question reminds me of what Sri PV Narasimha Rao had told me in 1986 while trying to persuade me to withdraw my resignation from the government. He said, “We are not social reformers but a political party. If Muslims want to live in a pothole, why we should bother about it as long as they are voting for us?”
To me, this approach is dangerous because if any one section of the population is left behind then it would not hurt them alone rather it would be a problem for the whole country.
Some are also of the view that if the UCC is implemented by the Centre, it would end up destroying the diverse fabric of Indian society. Would you agree with such a thought process?
This assertion is part of a vicious propaganda to mislead people to believe that UCC means bringing about uniformity of customs, rituals and practices. This is far from the truth. The UCC is only about bringing uniformity of justice.
After UCC becomes law, every group will continue to have the freedom to follow their own practices and customs but in case of any dispute if the parties decide to go to the court then uniform justice will be available and no one shall be discriminated against on the basis of her faith.
Never forget that UCC is a civil law and no civil law forbids any action on the pain of punishment. Civil Laws do not come into operation on their own, they are enforced by courts only if the affected party goes to the court seeking remedy for some alleged wrong.
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A slew of legislations including the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act will be replaced if the UCC becomes law. Would this not impact the religious freedom guaranteed by the Constitution?
Please look at Article 25 of the Constitution more closely. It ensures freedom of conscience and free profession, practice and propagation of religion to all persons not just citizens. It is not a community right but an individual right subject to public order, morality and health and nothing in this article shall prevent the State from providing for social welfare and reform.
Secondly, I am convinced that the Constitution of India does not allow the government to enforce religious laws as there is no unanimity in any religious community as the interpretations of various provisions differ and particularly among Muslims there are more than six schools of jurisprudence which are applicable to various groups who subscribe to these schools.
In fact, Muslim Law is a misnomer, at best they can be described as sectarian laws which radically differ from each other. That explains why Muslim Ulema are not able to codify the Muslim Law and the Shariat Application Act 1937 is merely a declaratory law that such and such matters shall be decided in accordance with the provisions of Muslim Law. In the absence of a codified law, when a specific matter comes for adjudication, the court has no option but to find out some previous ruling and apply that ruling to decide the matter accordingly.
So when the government in 1986, accepted the stand of the Personal Law Board in the Shah Bano Case and decided to enact a law as per their demand, the state power was used to impose one viewpoint on all Muslims although many Muslims had publicly differed with the Board. Will you not see this as a denial of freedom of religion to these individuals who may be small in number but held a view that was different from the Personal Law Board and this list included very eminent individuals led by former Vice Chancellor of Aligarh Mr FH Badruddin Tyebji.
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Critics cite the example of Goa where UCC had already been enforced. They point out that the Hindu community too has had to bear the brunt of such a law. Do you foresee a host of future legal tangles arising from implementing the UCC?
Goa is a good example. Has the UCC there created uniformity of custom, ritual and practice or it has merely provided for uniformity of justice? One political leader has said on record that UCC is an attempt to impose Hindu Law on Muslims. Though he has a legal background he appears to be unaware that Hindu Code Bill is not a law based on Shastras.
The Shastra-based Hindu Law had no provision about divorce or daughters having a share in ancestral property. Because Hindu Code Bill is not based on Hindu Shastras therefore Dr. Ambedkar thought it appropriate to apply it to communities like Jains, Buddhists and Sikhs as well. It is a modern legislation but to assure the Muslims that it would not apply to them it was named as Hindu Code Bill.
Today, the Law Commission has invited opinions and everybody has a right to propose a draft of UCC, whose provisions do not offend any religious sensitivity and at the same time are in accord with the letter and spirit of the Constitution, then we can go ahead to secure a Uniform Civil code for all Indians.
Prime Minister Narendra Modi’s recent statement on Uniform Civil Code (UCC) has kicked up nationwide debate on the proposed equal rights law. While many Muslim organisations have opposed the move, political parties hold different opinions on the same.
Kerala Governor Arif Mohammed Khan who has been a proponent of gender justice and equal rights for Muslim women, says that the Uniform Civil Code should be implemented in the country, not merely because it is part of the directive principles, but because the existing legal arrangement violates both the fundamental right of equality before law and equal protection of laws.
In an interview with Anil S, the Governor also criticised the Left parties for doing a volte-face in their stance on the UCC.googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2’); });
The Centre is now mulling over implementing the Uniform Civil Code and the same has invoked stringent criticism from various quarters. What is your position on this matter?
We are a vibrant democracy and everyone has the right to give expression to her opinion. My stand is the same which is spelled out in the Constitution of India which makes it obligatory for the State to secure a uniform civil code for all citizens throughout the territory of India. I feel that UCC should come not merely because it is part of the directive principles but more importantly, the legal arrangement that exists violates the fundamental right of equality before the law and equal protection of laws.
Today every person who goes to court to seek justice in matters pertaining to personal laws receives justice on the basis of her religious faith. Two persons similarly circumstanced will not receive similar justice because they belong to different faith traditions. I feel that any judicial scrutiny would reveal that personal laws are violative of fundamental rights and they are an obstacle in the path of uniformity of justice.
A few political parties, including the CPM and IUML, have lashed out against such a move, terming it anti-women and anti-minority. Do you believe such opposition stems from political rather than ideological differences?
Muslim League I can understand because they had raised this bogey even before Independence and had demanded the partition of India to safeguard the Muslim religion, culture and language. It is a different matter that after partition, the new dominion Pakistan changed these personal laws in 1962 and not only banned triple divorce but also placed restrictions on polygamy.
What is surprising is the volte-face staged by the Left which at least till 1990, was vocal supporters of UCC and gender justice. In 1986, when I resigned from the Central government on the issue of Shah Bano, Mr EMS Namboodripad, Left parties and BJP had supported my stand. Since Left parties had earlier supported the UCC, I think they owe a duty to the people to explain why they have changed their stance so radically and now are ready to align with parties who were described by them as communal.
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Those opposing the UCC have pointed out that the Centre could instead review existing discriminatory practices in personal laws of various religions. Would you concur with such an approach?
The Centre must stand by the Constitution, which is clear on this issue. If those who are opposed to UCC feel that gender justice can be ensured through some other methodology then it is their duty to prepare the draft and submit it to the Law Commission and to the government and I am sure that it will receive due consideration.
Opposing parties have pointed out that any demand for such reform should arise from within a particular community. As someone who has always advocated equal rights for Muslim women, do you feel that such reformatory awareness does exist in present-day society?
This question reminds me of what Sri PV Narasimha Rao had told me in 1986 while trying to persuade me to withdraw my resignation from the government. He said, “We are not social reformers but a political party. If Muslims want to live in a pothole, why we should bother about it as long as they are voting for us?”
To me, this approach is dangerous because if any one section of the population is left behind then it would not hurt them alone rather it would be a problem for the whole country.
Some are also of the view that if the UCC is implemented by the Centre, it would end up destroying the diverse fabric of Indian society. Would you agree with such a thought process?
This assertion is part of a vicious propaganda to mislead people to believe that UCC means bringing about uniformity of customs, rituals and practices. This is far from the truth. The UCC is only about bringing uniformity of justice.
After UCC becomes law, every group will continue to have the freedom to follow their own practices and customs but in case of any dispute if the parties decide to go to the court then uniform justice will be available and no one shall be discriminated against on the basis of her faith.
Never forget that UCC is a civil law and no civil law forbids any action on the pain of punishment. Civil Laws do not come into operation on their own, they are enforced by courts only if the affected party goes to the court seeking remedy for some alleged wrong.
ALSO READ:
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A slew of legislations including the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act will be replaced if the UCC becomes law. Would this not impact the religious freedom guaranteed by the Constitution?
Please look at Article 25 of the Constitution more closely. It ensures freedom of conscience and free profession, practice and propagation of religion to all persons not just citizens. It is not a community right but an individual right subject to public order, morality and health and nothing in this article shall prevent the State from providing for social welfare and reform.
Secondly, I am convinced that the Constitution of India does not allow the government to enforce religious laws as there is no unanimity in any religious community as the interpretations of various provisions differ and particularly among Muslims there are more than six schools of jurisprudence which are applicable to various groups who subscribe to these schools.
In fact, Muslim Law is a misnomer, at best they can be described as sectarian laws which radically differ from each other. That explains why Muslim Ulema are not able to codify the Muslim Law and the Shariat Application Act 1937 is merely a declaratory law that such and such matters shall be decided in accordance with the provisions of Muslim Law. In the absence of a codified law, when a specific matter comes for adjudication, the court has no option but to find out some previous ruling and apply that ruling to decide the matter accordingly.
So when the government in 1986, accepted the stand of the Personal Law Board in the Shah Bano Case and decided to enact a law as per their demand, the state power was used to impose one viewpoint on all Muslims although many Muslims had publicly differed with the Board. Will you not see this as a denial of freedom of religion to these individuals who may be small in number but held a view that was different from the Personal Law Board and this list included very eminent individuals led by former Vice Chancellor of Aligarh Mr FH Badruddin Tyebji.
ALSO READ:
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Critics cite the example of Goa where UCC had already been enforced. They point out that the Hindu community too has had to bear the brunt of such a law. Do you foresee a host of future legal tangles arising from implementing the UCC?
Goa is a good example. Has the UCC there created uniformity of custom, ritual and practice or it has merely provided for uniformity of justice? One political leader has said on record that UCC is an attempt to impose Hindu Law on Muslims. Though he has a legal background he appears to be unaware that Hindu Code Bill is not a law based on Shastras.
The Shastra-based Hindu Law had no provision about divorce or daughters having a share in ancestral property. Because Hindu Code Bill is not based on Hindu Shastras therefore Dr. Ambedkar thought it appropriate to apply it to communities like Jains, Buddhists and Sikhs as well. It is a modern legislation but to assure the Muslims that it would not apply to them it was named as Hindu Code Bill.
Today, the Law Commission has invited opinions and everybody has a right to propose a draft of UCC, whose provisions do not offend any religious sensitivity and at the same time are in accord with the letter and spirit of the Constitution, then we can go ahead to secure a Uniform Civil code for all Indians.
