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How about an optional common code?; and a response - Economic Times

Arindam Sen Gupta ()
3 July 1996


Title : How about an optional common code?
Author : Arindam Sen Gupta
Publication : Economic Times
Date : July 3, 1996

A highly popular line of attack against secularism and
secularists is that in the guise of secularism, they and
the 'secular' parties practice 'favoritism' towards the
Muslim community. Evidence cited in support of the charge
are mainly three their reluctance to lend support to a
uniform civil code (UCC), their soft-pedalling the issue
of border infiltration, and their opposition to the
repeal of Article 370 which grants special status to the
Muslim-majority state of Jammu & Kashmir. Of the three,
the UCC has become the most potent weapon in the hands
the BJP and allied groups in their campaign against
'psuedosecularism', a term coined by Mr L K Advani, which
implies sham secularism - that while espousing the cause
of secularism, the secularists actually practice
favouritism towards the minority communities and
discrimination against the majority Hindu community.

The UCC issue came into focus during the celebrated
Bano case in 1987 when the aged divorcee approached
Supreme Court for maintenance which was being denied
her husband on the plea that there was no provision for
alimony or maintenance under the Muslim personal laws.
Shah Bano's cause was espoused at that time by the Left,
Janata Dal, women's groups as well as the BJP. However,
the Rajiv Gandhi regime not only rejected the court's
obter dicta in favour of a uniform code, but caved in to
the pressures of the Muslim conservative leadership and
reinforced through legislation the 'separateness' of laws
among the different communities. Muslim all political
parties criticised the Congress(l)'s opportunism, they
gradually came round to the view that a UCC cannot be
imposed on reluctant communities and that the impulse for
reforms must come from within a community. Only the BJP
has remained steadfast in its demand for a common
making it appear more 'value based' than others.

Typically, the 'secular' parties have not really cared to
explain, beyond their preemptors one-liner that the time
was not opportune for a UCC, why they changed their stand
on the issue. Did they also cave in to the pressures of
the conservative Muslim leadership, as alleged by the
BJP, in order to 'protect' their Muslim 'vote-bank'? Or
did they change their position simply because the BJP,
too, was demanding a UCC, and at no cost could they be
seen to be making common cause with the `Hindu
revivalist' party? In the absence of any convincing
arguments, the popular perception - mainly among the
Hindus, but not all of them sectarian Hindus - has been
that the change of tack on the part of the 'secular'
parties was due to a combination of these two reasons and
that their political opportunism eventually got the
better of their commitment to gender justice and equity.
And as long as these parties do not dilate on their
stand, this perception will linger (secularists wishing
to make an impression in the debate on secularism might
as well face up to this fact.)

The charge of 'favouritism' has come to be closely
interlinked with the UCC issue in this context. It is

alleged that the Muslim personal laws give certain
'privileges' to the Muslim community. First, while a
Hindu can be prosecuted for polygamy, a Muslim can have
up to four wives. Secondly, while a Muslim can summarily
divorce his wife/wives (the triple talaq divorce), a
Hindu cannot. Thirdly, a Muslim is required to pay less
generous maintenance to his divorced wife than a Hindu.
That the 's(Tular' parties were helping preserve these
personal laws was proof of their 'favouritism' towards
the Muslim community and 'discrimination' against Hindus.
This c lever inter-weaving of arguments - gender justice,
on the one hand, and 'favouritism', on the other - by
Hindu sectarian ideologues has created a situation where
diffidence towards the UCC has ipso facto come to mean
the mollycoddling of the Muslims and, therefore,
practising of 'psuedo-secularism'.

This line of argument is, however, problematic for
obvious reasons. While the general issue of asymmetric
treatment by the state of different communities is indeed
an important one, in this instance the 'privileges' for
one section and the 'discrimination' against another
needs to be more closely examined. The discrimination,
you will surely realise, is against Muslim women rather
than Hindu men. Equally, the 'privileges', if you choose
to see it that way, are there for Muslim men, not the
women. As Amartya Sen points out in his essay
and its discontents': "A narrowly 'male' - indeed sexist
- point of view is rather conspicuous in the form that
these political complaints often take." And to the point,
the issue here is not one of 'favouritism' towards one
community, but one of gender justice - why should Muslim
women be barred from taking recourse to the law which is
available to their Hindu counterparts?

Indeed, the UCC issue goes beyond secularism. For,
secularism can happily co-exist with different personal
laws for different communities, so long the state
maintains its symmetry of treatment. After all, Hindu
personal laws remain operative on a number of issues
(including inheritance laws) and when they were reformed
in 1956-57 to prevent, among other things polygamy, there
was hardly any opposition from the community - rather
they were i result of movements from within the
community. The state could allow all persona laws -
Hindu, Muslim, Christian - to remain and claim that it
has not shown any bias in favour of any particular
community. The point is not that. The point is the
fairness towards communal distinction! alone is not
enough; the state must shore fairness in dealing with
other classificatory distinctions - for instance, between
different classes, between men and women between
and 'subalterns' and so on,

The UCC issue needs to be seen from this perspective, as
also the diffidence of `secular' parties' in regard to
enacting a common code. Why should a carte blanched
belgiven to the conservative Muslim leadership - all male
- to perpetuate a legal system within their community
which places Muslim women at a more disadvantaged
position vis-a-vis other women? Indeed, why should they
be made to suffer on account of polygamy, oral divorce,
and less than generous maintenance when even
countries like Pakistan and Jordan (which like India
subscribe to the Hanafi code) have banned polygamy and
oral divorce? There is no rational answer to these

questions, barring an evolutionary argument in favour of
reforms - that is, the weight of tradition and the
stranglehold of the conservative leadership over the
Muslim community militate against the 'imposition'of a
UCC; instead time should be given for the impulse of
reforms to grow within the community. If the UCC is made
mandatory right away, the reaction to it might cause
violent social and communal - disorder and make the
remedy worse than the disease.

Well, how about a via media then? While talking about the
UCC in an interview this week to ABNI, Mr L K Advani said
that the law ministry should cull out the "progressive
ingredients" from Hindu, Muslim, Christian and Parsi laws
- that is, take the best of all personal laws - and
prepare a draft common code which can then be put to a
national debate. Frankly, there can be no rational
objection to the suggestion. What this writer would add
is that let the debated-upon and agreed-upon UCC be
optional. Pending an opinion in favoyr of reforms in the
different communities, let there be the option for people
like Shah Bano to seek justice in civil matters if driven
to the point where they are prepared to face the social
odds. Let not the law remain mute or merely mutter on
such occasions that the issue of gender justice and
equity is beyond its purview just because a person
belongs to a particular religious community.


A letter in response

Kanchan Junga
72, Dr G Deshmukh Rd
Mumbai 400 026.

July 3, 1996


A feature of secular intellectuals in India seems to
be that each one thinks that only he/she can come out
with a new idea. For example, Shri Arindam Sen Gupta
(July 3) pleads for an optional (UCC) uniform civil code.
This suggestion of an option is nothing new, and has been
floated around for the last six or seven years, precisely
because the issue of the UCC has become an electoral is-
sue which would benefit the BJP. But, whenever a secular
intellectual comes out with a new idea, the whole inten-
tion is really to confuse than enlighten.

First, an optional UCC is really an inconsistent
concept. If it is optional, how is it uniform? Second-
ly, who is to exercise this option? Thus, is the form of
a divorce to be decided by the man or the woman? Is the
method of inheritance to be decided by the child or the
parent? And, amongst the children, is it the male child
or the female child who will decide? Any three year old
would ask such questions. But then, Shri Gupta is not a
three year old.

Another feature of secular intellectuals is to ig-
nore what has been said by the BJP. For example, Shri L
K Advani's prescription of culling out the progressive
ingredients from the existing laws was first suggested at
least three years ago in an interview in The Illustrated
Weekly of India. Similarly, Shri Gupta has ignored the
fact that the Christian community has suggested changes
in their laws more than two years ago, and the Congress
government had been 'promising' to introduce them as
bills in almost all the sessions that have been held dur-
ing this time. But, secularism demands that an attempt
should be made to rush reservation for the so-called Da-
lit Christians, but nothing to be done on the question of
reforming laws which would reduce the gender inequalities
that exist.

Yours Sincerely,

(Ashok Chowgule)

The Editor, The Economic Times,
Times of India Building,
Dadabhoi Naoroji Road,
Mumbai 400 001.

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