UNIFORM CIVIL CODE
OR LEGAL PLURALISM
August 1-15, 2003
by Asghar Ali Engineer
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
communities 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 impose, at the same time, a law, which is contrary to ones
There is some truth in the argument but not the whole truth. We will come
to this little later. 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, including the vast majority of Hindus, would reject
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, therefor, 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. It was for this reason that all women's organisations dropped the
demand for common code, as it became the Hindutva agenda. In a highly communally
charged atmosphere no minority community would welcome such a measure.
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 Rupkanwar 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.
Such cases have often taken place between Jats and Jatavs of U.P.
The diversity of laws among Hindus is so bewildering in different regions
and castes that to create a uniform law among them itself would be a great
challenge. In Tamilnadu and some other parts of south the most preferred
form of marriage is between niece and maternal uncle while in U.P. marriages
even within seven gotras are unthinkable. How can one reconcile such diverse
practices within one uniform law?
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. In many cases traditions and
traditional practices are assuming greater importance than ever before. In
many ways it seems we are regressing rather than progressing. 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. Thus
sociological view is as necessary as legal view.
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. We lived more in peace and
harmony as we respected pluralism, different religions and different traditions.
The 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 upper class economic elite. This is much more so as far as Muslim
masses are concerned. There is much greater degree of power and illiteracy
among them compared to other communities. There is very weak middle class
among them to advocate modernisation and change. It is precisely for this
reason that priestly class which itself comes from poor strata has much greater
hold over the community.
And yes we have to find 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. If we accept
this way of looking things it will be easier to remove gender discrimination.
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 Muslim personal law is concerned there are two main problems oral
or triple divorce and legality of polygamy. The Muslim personal law board
must bring about these desired changes within 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 are very fair to women. Triple divorce in one sitting
is not practised in most of the Islamic countries. Even Pakistan and Bangla
Desh have changed their laws in this respect.
Similarly as far as polygamy is concerned the Qur'an has given permission
for it in particular circumstances and most reluctantly and 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
that it is as good as banned.
The Muslim women hardly suffer other disabilities i.e. 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 nineteenth century and early twentieth century like Maulavi Imtiaz
Ali Khan, Maulvi Chiragh Ali and a legal luminary like Justice Amir Ali had
advocated these changes within Islamic frame-work.
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 of traditional laws.
Moreover no one has framed any common civil code so far, not even BJP which
has been advocating it for political rather than reasons of gender justice.
Very few men are prepared for gender equality in our society. 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.
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