Uniform civil code

Proposition for uniform codified personal law in India that is not respect to religion

Uniform civil code is the ongoing point of debate within Indian mandate to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Article 44 of the Directive Principles expects the state to apply these while formulating policies for the country.

QuotesEdit

  • The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
    • B.K. Sharma: Bharat ka Samvidhan; The Constitution of India, p.14, quoted from Elst, Koenraad (2001). Decolonising the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa. p.548
  • One wonders how long it will take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44. ... There is no justification in delaying indefinitely the introduction of a uniform personal law.
    • Para 30 of the verdict in Supreme Court in the case of Sarla Mudgal vs. Union of India (1995), quoted in Habibullah Badshah Uniform Civil Code - chasing a mirage, quoted from Elst, Koenraad (2001). Decolonizing the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa. p. 551
  • There is nothing non-secular or sectarian in demanding that the provisions of Indian civil laws should apply evenhandedly to all.
    • Amarty Sen (1993), quoted from Elst, Koenraad (2001). Decolonizing the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa. p.552
  • The failure to adopt a Uniform civil code [has the effect that] Muslim women suffer because they do not have an equal right of inheritance, because they cannot easily obtain a divorce, because they can be divorced by their husband at their whim or caprice.
    • Atul Setalvad (1990), quoted from Elst, Koenraad (2001). Decolonizing the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa. p.553
  • We have to insist on a common personal law for all citizens of India.
    • Hamid Dalwai, Muslim politics, p.106-8, quoted from Elst, Koenraad (2014). Decolonizing the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa. p. 364-6
  • A Common Civil Code has been a long-standing demand of the Jana Sangh-BJP, and therefore it is deemed a “communal” demand. However, anyone outside the ambit of Indian secularism, anyone who can see through its veil of fallacies, would call this a secular demand. Indeed, it is enjoined in the Directive Principles of the Indian Constitution. To be more precise, the Nehruvians sidelined this demand by only giving it a place among the non-enforceable Directive Principles, but at least it forms part of the Constitution. The Supreme Court has asked the Government to report on its steps towards a Common Civil Code, a request gone unanswered by the past two Congress Governments. Equality of all citizens before the law regardless of religion, hence a Common Civil Code, is a defining trait of all secular states.
    • Koenraad Elst, On Modi Time : Merits And Flaws of Hindu Activism In Its Day Of Incumbency – 2015. Ch.9 Things to do for a Hindu Government .
  • The classic example given is the Shah Bano case of 1985: repudiated by her husband, the Muslim woman Shah Bano went to court to force him to pay alimony, which Islamic law forbids; the Supreme Court upheld her claim on the basis of equality before the law (Hindu women would have the right to alimony in her case), but under Muslim pressure, Rajiv Gandhi's Congress Government voted a law overruling the verdict and reaffirming the Islamic rules on divorce, at least for Muslims.
    • Elst, Koenraad (2001). Decolonizing the Hindu mind: Ideological development of Hindu revivalism. New Delhi: Rupa.
  • This totally non-secular arrangement was meant to be only temporary, for the Constitution stipulates in its directive principles (Art. 44) that the State shall endeavour to enact a Common Civil Code. In 1995, the Supreme Court reminded the Government of this directive principle, and directed it to report on the progress made in the matter... The BJS-BJP has always demanded the implementation of Art.44, but the majority has blocked this secular policy time and again...The Common Civil Code is not a demand of Hindu society (certainly not a priority), but is intrinsically a demand of secularism... The trouble of raising this impec­cably secular and explicitly constitutio­nal demand should be left to the secularists; as long as they don't put it on the agenda, the present religion-based personal law systems are a standing testimony to the hypocrisy of the secularist establishment. Equality before the law regardless of religion is an essential requirement of a secular state, and it is a measure of the perversion of India's political parlance that BJP opponents actually defend the separate religion-based civil codes in the name of secularism.
    • Elst, Koenraad. (1997) BJP vis-à-vis Hindu Resurgence
  • An Anti-Common Civil Code Convention was held by Muslims at the Talkatora Indoor Stadium in New Delhi on July 4, 1995. The Convention demanded that the Muslims should be exempted from the purview of Article 44 of the Constitution which envisages such a code. Asad Madani, the chief of the Jamiat, called the demand for a common civil code a conspiracy to finish off the Muslims in India. He advised all Muslims to have four wives to increase the Muslim population and to enhance their influence with the Government. Zafaryab Jilani described the move for a common civil code as anti-Islamic and aimed at finishing Islam in India. Mufti Abdul Razzaq of Bhopal wanted Muslims to wage jihad against the Government and to kill those who opposed Muslim Personal Law. Many more separatist statements were made. If the Muslims were concerned about equality with devotees of other faiths, they would not oppose a common civil code meant for and applicable to all Indians. Instead of opposing it they should grab this opportunity to get into the proposed code all the good things in the Shariat concerning the "high status of women in Islam" about which Muslims are so vociferous.
    • Lal, K. S. (1999). Theory and practice of Muslim state in India. New Delhi: Aditya Prakashan. Chapter 7
  • Many a time aggrieved parties (like divorced Muslim women) have approached the courts for redressal and many a time the Supreme Court has asked the government to explain the steps it has taken for securing uniformity in the personal laws, particularly those of the Muslims, leading to the enactment of a common civil code for all Indians.
    • Lal, K. S. (1999). Theory and practice of Muslim state in India. New Delhi: Aditya Prakashan. Chapter 6
  • As the legacy of this scenario, Indian girls are still being sold to West Asian nationals as wives, concubines and slave girls. For example, all the leading Indian newspapers like The Indian Express, The Hindustan Times and The Times of India of 4 August 1991, flashed the news of a sixty year old “toothless” Arab national Yahiya H.M. Al Sagish “marrying” a 10-11 year old Ameena of Hyderabad after paying her father Rs. 6000, and attempting to take her out of the country. Al Sagish has been taken into police custody and the case is in the law-court now. Mr. I.U. Khan has “pointed out that no offence could be made out against his client as he had acted in accordance with the Shariat laws. He said that since this case related to the Muslim personal law which permitted marriage with girls who had attained Puberty (described as over 9 years of age), Al Sagish could not be tried under the Indian Penal Code (IPC). Besides Ameena’s parents had not complained.” (Times of India, 14 August 1991). But this is not an isolated case. I was in Hyderabad for about four years, 1979-1983. There I learnt that such “marriages” are common. There are regular agents and touts who arrange them. Poor parents of girls are handsomely paid by foreign Muslims for such arrangements. Every time that I happened to go to the Hyderabad Airlines office or the Airport (which was about at least once a month), I found bunches of old bridegrooms in Arab attire accompanied by young girls, often little girl brides. “A rough estimate indicated that as many as 8000 such marriages were solemnised during the past one decade in Hyderabad alone.” (Indian Express Magazine, 18 August 1991). In short, the sex slave-trade is still flourishing not only in Hyderabad but in many other cities of India after the medieval tradition.
    • Lal, K. S. (1992). The legacy of Muslim rule in India. New Delhi: Aditya Prakashan. Chapter 7
  • An early warning against perpetuating the minority complex was sounded in a memorandum submitted to the Constituent Assembly’s committee on minorities by Rajkumari Amrit Kaur, a leading member of the Christian community. She said: “The primary duty of the committee appointed to look into the problem of minorities is to suggest such ways and means as will help to eradicate the evil of separatism, rather than expedients and palliatives which might, in the long run, only contribute to its perpetuation.” She added, “Privileges and safeguards really weaken those that demand them…” A distinguished member of another minority community, Muhammad Currimbhoy Chagla, wrote in his autobiography in 1973: “I have often strongly disagreed with the government policy of constantly harping upon minorities, minority status and minority rights. It comes in the way of national unity, and emphasises the differences between the majority community and minority. Of course it may serve well as a vote-catching device to win Muslim votes, but I do not believe in sacrificing national interests in order to get temporary party benefits. Although the Directive Principles of the State enjoin a uniform civil code, the Government has refused to do anything about it on the plea that the minorities will resent any attempt at imposition.” The false equation of secularism and minorityism of the Congress is repeated in the policies of the National Front Government.
    • C.N.S. Raghavan, “Secularism or Minorityism”, in Statesman, 19.11.89. quoted from Lal, K. S. (1992). The legacy of Muslim rule in India. New Delhi: Aditya Prakashan. Chapter 8
  • No wonder that in India Muslims want separate schools for their children and claim Urdu as their language. They want their Personal Law (which mainly means polygamy), and resist enactment of a uniform civil code for all. They are against family planning so that their population may grow unchecked. In short, in countries where Muslims are in a minority and the state is not Islamic, they insist on living an alienated, unintegrated and “superior” life by agitating for concessions specified by their Islamic Shariat. No amount of falsification of history can humour them into living with others on terms of equality. Therefore Congress-culture politicians and pseudo-secularists should at least inform the minority whose cause they espouse, but to whom they never dare read a lecture, that secularism and fundamentalism are mutually exclusive, and that in the Indian secular state the Muslims cannot practise their fundamentalism. Furthermore, they can also be told that history can no longer be distorted, that it cannot be made the handmaid of politics, and that therefore they need to feel sorry if not actually repentant about the past misdeeds of Muslims.
    • Lal, K. S. (1992). The legacy of Muslim rule in India. New Delhi: Aditya Prakashan. Chapter 8
  • Genuine secular states have equality before the law of all citizens regardless of religion. By contrast, India has different civil codes depending on the citizen's religion. Thus, for Christians it is very hard to get a divorce, Hindus and Muslim women can get one through judicial proceedings, and Muslim men can simply repudiate their wives. The secular alternative, a common civil code, is championed by the Hindu nationalists. It is the so-called secularists who, justifying themselves with specious sophistry, join hands with the most obscurantist religious leaders to insist on maintaining the present unequal system. Likewise, there exists a legal inequality in matters of temple management, pilgrimage subsidies, special autonomy for states depending on their populations' religious composition, and the right to found religious schools; and this inequality is defended by the so-called secularists because it is invariably to the disadvantage of the Hindus. The Hindu nationalists favour the secular alternative of equality regardless of religion.
    • Elst, Koenraad, The Problem with Secularism (2007) , and in Elst, Koenraad (2003). Ayodhya: The finale ; science versus secularism in the excavations debate.
  • Then there is the matter of the separate civil code for the minorities. Marriage and inheritance laws are, perhaps on top of some sacramental dimension, quite secular matters. Recognizing and institutionalizing inequality between the citizens of India in these secular matters on the basis of their religion is definitely a case of constitutional communalism. Or rather, let us not be too harsh on the Constitution itself, for it does call on the law-maker to eventually abolish the religion-based law systems. It is political communalism on the part of the parties that refuse to implement the constitutional provision for the eventual enactment of a common civil code.
    • Elst, Koenraad (1991). Ayodhya and after: Issues before Hindu society.
  • Indeed, over the years I have had many a good laugh at the pompous moralism and blatant dishonesty of India's so-called secularists. Their specialty is to justify double standards, e.g. why mentioning murdered Kashmiri Pandits is “communal hate-mongering” while the endless litany about murdered Gujarati Muslims is “secular consciousness-raising”. Sometimes they merely stonewall inconvenient information, such as when they tried to deny and suppress the historical data about the forcible replacement of a Rama temple in Ayodhya by a mosque: given the strength of the evidence, all they could do was to drown out any serious debate with screams and swearwords. But often they do bring out their specific talents at sophistry, such as when they argue that a Common Civil Code, a defining element of all secular states, is a Hindu communalist notion, while the preservation of the divinely-revealed Shari’a for the Muslims is secular. That’s when they are at their best.
    • Elst, K. Hinduism, Environmentalism and the Nazi Bogey -- A preliminary reply to Ms. Meera Nanda, In: Return of the Swastika: Hate and Hysteria versus Hindu Sanity (2007), chapter 3.
  • As a group, the secularists, especially the Leftists, have not summoned the courage to insist that in order to ensure the survival of the secular India state, Muslims should accept one common civil code, and that Article 370 of the Constitution, which concedes special rights to Jammu and Kashmir mainly because it is a Muslim-majority state, should be scrapped... Even so I find it extraordinary that those who call themselves modernizers and secularists-the two terms are interchangeable-should shirk the logic of their philosophy of life.
    • Girilal Jain, App. 1, Limits of the Hindu Rashtra, in : Elst, Koenraad: Ayodhya and after, Appendix I
  • [Women in Islamic countries] are exposed to male domination as a rule rather than as an exception... If anyone protests... as I have done, you are sure to be branded as a witch... What I demand is freedom for women from male domination and a uniform code... It that can be construed as blasphemy, I cannot help it.
    • Taslima Nasrin. Quoted from Ram Swarup, Woman in Islam, 2000
  • In the BJP statements of the last few years the most prominent 'communal' item is the Common Civil Code demand; but pushing that one would be a grave mistake. True, this is an impeccably secular concern, amounting to no more than the implementation of the existing Article 44 of the Constitution.But precisely for these reasons, this initiative should be left to the secularists, whose inaction on this point is a permanent measure of their dishonesty. There are excellent arguments against polygamy and unilateral talaq, but nobody will believe the BJP if it says that it was concerned about the plight of Muslim women.
    • Elst, K. BJP Retreat from Ayodhya The Observer Of Business And Politics(New Delhi, December, 1996.)
  • Where more than 80 percent of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of the 'uniform civil code' for all the citizens in the territory of India.
    • Kuldip Singh, SC Justice., quoted in Elst, Koenraad (2012). The argumentative Hindu. New Delhi : Aditya Prakashan.
  • “We would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India…There is no necessary connection between religious and personal law in a civilised society. It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.”
    • V.N. Khare, Chief Justice. 2003. , quoted in Elst, Koenraad (2012). The argumentative Hindu. New Delhi : Aditya Prakashan.
  • [He expressed the hope that Goa's example of a common civil code would one day] awaken the rest of bigoted India.
    • Chief Justice, Y.V. Chandrachud,, quoted in Elst, Koenraad (2012). The argumentative Hindu. New Delhi : Aditya Prakashan.
  • It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation.
    • V.N. Khare, Chief Justice. 2003., quoted in Elst, Koenraad (2012). The argumentative Hindu. New Delhi : Aditya Prakashan. 290-303
  • The BJP proposal to enact a Common Civil Code in replacement of the existing religion-based Personal Law systems is the very quintessence of secularism. Today, contrary to Mira Kamdar's claim, India is not a secular state, for unlike genuinely secular states, India has no equality before the law regardless of religion. Thus, getting a divorce is extremely difficult for a Christian, is a matter fr judicial proceedings in the case of Hindus or of Muslim women, and is the unilateral exercise of an unfettered right of repudiation in the case of a Muslim man. What the BJP wants is to bring India in line with the secular states of the world by enacting a common law equally applying to all citizens. The qualification of the self-styled secularists as "pseudo-secularists" is definitely justified by the fact that they support the continuation of legal religion-based discrimination all while vilifying the only political force willing to secularize Personal Law.
    • Elst, Koenraad, The Problem with Secularism (2007)
  • First of all, they assume that India is a secular state, which it is not. Every secular state on earth by definition observes equality before the law for every citizen regardless of religion. India, by contrast, has different family law systems (marriage, inheritance) depending on one’s religion, e.g. Muslim men can immediately impose a divorce while all others have to pass judicial procedure (thus also causing discrimination by gender for Muslim men vs. Muslim women). Moreover, it has arrogated the right to reform Hindu law, while it passively abides by the other law systems, e.g. it has abolished Hindu polygamy but continues to allow Muslim polygamy. So, it discriminates between religions. It extends those discriminations legally and constitutionally to the fields of education (where minorities are privileged over the Hindus) and places of worship (where politicians plunder Hindu temple funds while respecting those of churches and mosques, sometimes even financing these out of Hindu temple funds). (Ch 13)
  • So, India is a secular state if all citizens get the same treatment in law regardless of their religion. Is this the case? Of course not: Hindus, Muslims, Christians and Parsis have different law systems, chiefly because Muslims insist on it. So, contrary to all those fear-mongers’ loud proclamations that “the BJP constitutes a threat to the secular state in India”, firstly, India definitely is not a secular state, and secondly, the BJP wants to enact a Common Civil Code and is thereby the only major party that wants to turn India into a secular state. The other major parties including the long-ruling Congress Party, by contrast, keep on promising their Muslim voters that they will preserve legal Apartheid between the religions and prevent India from becoming a secular state.
  • So, the BJP’s demand for a Common Civil Code is effectively buttressed with feminist rhetoric. In Prof. Kapur's spin, this shows how devious and Machiavellistic the Hindu Right really is. In a less partisan explanation, this only shows how the demand for a Common Civil Code is a common demand of different groups. As nationalists, the “Hindu Right” (which calls itself “Hindu nationalist”) care about the oneness of the nation, and that justifies the abolition of divisive religion-based Civil Codes including the Shari’a. As egalitarians, feminists (and normal people in general) want to abolish the sexual inequality inherent in the Shari’a, which they will achieve in a Common Civil Code. So, there are different reasons for abolishing an Indian legal systems that falsely flatters itself to be “secular”. Or in other words: there are several reasons, Hindu-Rightist as well as other, why Prof. Kapur’s defence of the present system is wrong. (Ch 20)
    • Koenraad Elst, On Modi Time : Merits And Flaws of Hindu Activism In Its Day Of Incumbency – 2015
  • In its European countries of origin, secularism (French: laicité) wanted to be a way to contain the Christian Churches, to make and keep the State free from interference by the Church. In the budding United States, the emphasis was slightly different: to keep the Churches free from interference by the State. At any rate, the core idea was separation of Church and State. The most fundamental characteristic of a secular state is the equality of all its citizens before the law, regardless of religion. In that sense, India is not a secular state at all. Its Constitution mandates quite a bit of State interference in religious laws and institutions, at least those of the Hindus, and formally as well as effectively discriminates against its religious majority. It does not satisfy the very first criterion of a secular state, viz. the legal equality of all citizens regardless of religion. On the contrary, in family matters, there are different sets of laws for Hindus, Muslims, Christians and Parsis. The most famous example is of course that a Muslim man can have four wives, others cannot. The discrimination lies not only in the the State’s perpetuation of a consequential inequality, but also in the genesis of that inequality through State intervention, viz. by the abolition of polygamy where it existed in Hindu society versus its deliberate non-abolition among Muslims. One can recognize an incompetent India-watcher by his pompous claim that “India is secular state”. It is not, period. [...] Thus, in the West, secularism means that all citizens are equal before the law, regardless of their religion; or what Indians call a Common Civil Code. In India, by contrast, all secularists swear by the preservation of the present system of separate religion-based Personal Laws, though they prefer to avoid the subject, hopefully from embarassment at the contradiction. And all Indian secularists swear by the preservation of constitutional, legal and factual discriminations against the Hindu majority. (In case you have recently lived on another planet and don’t believe that there are such discriminations, one example: the Right to Education Act 2006, which imposes some costly duties on schools except minority schools, has led to the closure of hundreds of Hindu schools.)
    • Elst, Koenraad. Hindu Dharma and the Culture Wars. (2019). New Delhi : Rupa.
  • So instead, she explained that the Hindu Right only wanted “formal equality” (understood as “justice to all, appeasement of none”) while the rest wanted “substantive equality”, a position she found far more sophisticated and just. But any law scholar would understand that the law is precisely about “formal” equality. In the real world, one man is rich and another poor, one is talented and another dumb, etc.; but at least in law, they are equal. The law cannot neutralize the inequalities given to men by nature; but the least it can do, is to make men at least “formally” equal. And that is the case in a Common Civil Code, which the BJP advocates and which she therefore considered a “threat to India’s secularism”. [...]
    • Koenraad Elst, On Modi Time : Merits And Flaws of Hindu Activism In Its Day Of Incumbency – 2015

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