Recently the Supreme court while disposing of a case on Indian Succession Act, 1925 filed by a Catholic priest voiced its distress that the government has failed to enact Common Civil Code to end discrimination among various religious communities in the areas of marriage, succession and property, and said that such a code would help in removing the contradictions based on religious ideologies.
The Supreme Court also declared as unconstitutional Section 118 of the Indian Succession Act, 1925 which applied to Christians alone and not to any other community and imposed restrictions on the community from bequeathing property for religious and charitable purposes by will.
It is not for the first time that the apex court has voiced its opinion for enactment of such a code. In other cases too it did so particularly while delivering judgement on the Shah Bano case which had perturbed the Muslims. However, in other cases the Supreme Court judges did not hold unanimous view for enactment of common civil code. Earlier Justice Shah had held that any imposition of such a common code would be against the provision of the Article 25 which guarantees "freedom of conscience and free profession, practice and propagation of religion".
The Muslims have also always maintained that imposition of common code will violate the spirit of Article 25. The Muslim personal law is part of the Shari'ah law and the Shari'ah law is integral part of Islam. According to them the two cannot be separated. How can then the Constitution allow freedom of religion and also impose a law, which is contrary to one's religion?
There is some truth in the argument but not the whole truth. But first it must be pointed out that imposition of common civil code is rather an elitist view, not a popular one. In fact only those who stand for gender equality irrespective of religious provision to the contrary, would accept such a code. But a vast majority of people from all religious communities, would reject it.
Even the members and supporters of the BJP would show hardly any enthusiasm for it. In fact the Hindu law is much more iniquitous for women than the Muslim law. Even after the reforms in the traditional Hindu law, and enactment of the Hindu Code Bill, which was vehemently opposed by the conservative Hindus and, therefore, had to be watered down, it is more iniquitous than the Shari'ah law. A Muslim woman can divide the ancestral property as her right to inheritance in immovable property is unconditional whereas there are problems in partitioning the ancestral property for a Hindu woman.
The BJP has unfortunately made common civil code a Hindutva agenda thus imparting it a Hindu communal colour. The BJP has adopted it as its agenda not because it loves gender equality but only because it is opposed by minorities, particularly Muslims.
Today with a deepening of democratic processes each caste and community is becoming more conscious of its identity and today our polity is mainly based on these identities. The politicians have been fighting elections mainly on the basis of caste and communities and thus have aggravated feeling of identities. In Rajasthan when Roopkanwar committed sati the Rajputs defended it as a matter of their identity. The Rajput youth stood with swords to defend the memorial created there.
Thus it is very difficult in such political atmosphere to think of enacting common civil code. The caste practices among Hindus are far more important than any law of the country. Each caste has its own customs and traditions, which supersede all laws of the country. In several parts of U.P., if any boy of lower caste marries girl of upper caste they are publicly beheaded.
The reality in India is much more complex than western societies, which have been totally secularised. The process of secularisation in India though not negligible is yet far more slow and tortuous. And no law, however ideal, can become acceptable if it alienates people and ignores social realities. A law has to be socially rooted, in order to be acceptable.
Democracy in a country like India with its pluralist tradition lasting over thousands of years cannot succeed without respecting pluralist ethos. It is interesting to note that the west has discovered pluralism recently — after Second World War and hence calls it post-modernist phenomenon. But India has known it even during medieval ages.
Modernisation brought new problems and we began to imitate the west without understanding our own social realities. These problems are getting intractable as our society is not changing especially when it comes to mass of people, as fast as the upper class economic elite. This is much more so as far as Muslims are concerned. There is much greater degree of poverty and illiteracy among them compared to other communities. There is a very weak middle class among them to advocate modernisation and change. This is precisely why the priestly class which itself comes from poor strata has much greater hold over the community.
And yes we have to find a solution to the problem of gender discrimination in the given laws in all communities. How to go about it? Common civil code is no solution. The solution can be found in legal pluralism. But legal pluralism does not mean we retain traditional or religious laws as they are. We must make suitable changes and enact reforms to remove gender discrimination embedded in these laws.
As far as the Muslim personal law is concerned there are two main problems: easy divorce procedure and legality of polygamy. The Muslim personal law board must bring about desired changes within the Islamic framework. Triple divorce is not a Qur'anic injunction. And the Prophet has also strongly disapproved of this form of divorce. The Qur'an has, in fact, prescribed most modern way of divorce through arbitration (4:35). It is highly unfortunate that Muslims in India ignore such a clear Qur'anic injunction and practice form of divorce disapproved by the Holy Prophet. Moreover Hanbali, Maliki, Ahl-e-Hadith and Shi'ah Muslims do not accept the validity of triple divorce. Thus it should be abolished and replaced with the Qur'anic form of divorce or by Talaq-i-sunnah which is fair to women. Triple divorce in one sitting is not practised in most of Islamic countries
Similarly, as far as polygamy is concerned the Qur'an has permitted it only in particular circumstances and most reluctantly; if the two verses on polygamy — i.e. 4:3 and 4:129 — are read together it becomes impossible to practice polygamy. It is wrong to think that the Qur'an has permitted polygamy without any conditions. Its conditions are most rigorous and very difficult to fulfil and hence even in earlier Islamic period the Mu'tazila believed it as good as banned.
Muslim women hardly suffer other disadvantages — widow re-marriage, property rights, inheritance etc — and are much better off than other women. Thus Muslim Personal Law Board should take the Qur'anic spirit into consideration in reforming the personal laws and remove such disabilities as mentioned above. The personal law thus will not come under legal scrutiny again and again and would also uphold the real Islamic spirit. Many illustrious Islamic scholars of the nineteenth and early twentieth centuries like Maulavi Imtiaz Ali Khan, Maulvi Chiragh Ali and a legal luminary like Justice Amir Ali had advocated these changes.
Thus legal pluralism will be much more in keeping with the democratic spirit than a common civil code and all right thinking people should work for these necessary reforms to do away with gender discrimination in traditional laws. Even if a common civil code is to be enacted one should frame one and publicise it for discussion by all concerned rather than simply talking of enforcing one. A social consensus will be highly necessary. Let us not simply politicise the issue.
(The author is a well known social
activist and reformer)