Sachin=GOD Posted April 18, 2015 Posted April 18, 2015 Why liberals must support a common civil code Ramchandra Guha Thirty years ago this fortnight, the Supreme Court passed its famous judgment in the Shah Bano case. A Muslim man had divorced his wife and stopped providing for her maintenance. The brave woman fought the injustice all the way to the highest court of the land. Finally, on April 23, 1985, a five-judge bench headed by the chief justice endorsed her claim, upholding an earlier judgment of the Madhya Pradesh High Court that she be provided an allowance sufficient for her needs. The Shah Bano case brought into conflict two sets of laws: Muslim personal law, which specified that a divorced wife need not be maintained by her husband after the elapse of a period of time (known as*iddat); and the Criminal Procedure Code, Section 125 of which specified that "any person having sufficient means" was obliged to support his wife, even if she lived apart from him. The Supreme Court held that Section 125 of the CrPC applied in this case. In their unanimous judgment, the justices deplored the fact that, under Muslim personal law, "the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent, indeed for no reason at all. And, is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of*iddat, the mere fact that he has paid something, no matter how little, absolves him forever from the duty of paying adequately so as to enable her to keep her body and soul together?" Having dealt with the specifics, the Supreme Court further observed that although Article 44 of the Constitution had called for a uniform civil code, there was "no evidence of any official activity" to bring this about. The court believed that "a common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies". Why had Article 44 remained what the Court called it in 1985, "a dead letter"? B.R. Ambedkar and the other framers of the Constitution had certainly hoped that the country would have a common civil code. When told that India was too vast a country to have a single law, Ambedkar pointed out that we already had a common criminal code. He also observed that if personal laws were left unreformed, "in social matters we will come to a standstill". At the same time, both Ambedkar (as law minister) and Nehru (as prime minister) thought it would not be prudent to bring about a common civil code in one swoop. So they first set about reforming the personal laws of the majority community, so as to give individual Hindus (both men and women) the rights to choose their marriage partners regardless of caste, to file for divorce in case of cruelty or incompatibility, and not to take more than one spouse. Other reforms were aimed at elevating the position of women specifically; thus, for the first time, the widow and daughters were awarded the same share as sons in the property of a man dying intestate. One reason Ambedkar and Nehru first reformed Hindu laws was that a large body of Hindu liberals supported them, they were numerous and powerful enough to offset the opposition from reactionary bodies such as the Hindu Mahasabha and the Rashtriya Swayamsevak Sangh. Even so, it took almost a decade for these new reforms to be pushed through Parliament. After they were enacted into law, the constitutional scholar, Marc Galanter, praised them as a "wholesale and drastic reform" which "supplants the sastra as the source of Hindu law". Ambedkar and Nehru hoped that, in time, a similar groundswell of progressive energy would emerge within the Muslim community, so that their personal laws could also be amended in line with modern notions of gender justice. Sadly, this did not happen. However, in 1985, the Supreme Court verdict in the Shah Bano case reopened the debate on a common civil code. At the time, a professedly modern-minded man, Rajiv Gandhi, was prime minister; and his party, the Congress, had more than 400 MPs in Parliament. Why did he not seize the opening provided by the Supreme Court to legislate a progressive civil code to apply to all citizens of India? In fact, Rajiv Gandhi's first instinct was to welcome the Shah Bano judgment. When conservative Muslims attacked the Supreme Court in Parliament, they were spiritedly rebutted by a Union minister who was himself a Muslim, Arif Mohammed Khan. However, the prime minister was then persuaded to distance himself from Arif Khan, on the grounds that if he supported him the Congress would lose the "Muslim vote". So, whereas the brave and just course would have been to use his majority to push through legislation safeguarding and enhancing the rights of women, Rajiv Gandhi instead took the cowardly step of using his majority to overturn the Supreme Court judgment. Thirty years later, Article 44 remains a dead letter. Occasionally, there are attempts to bring the debate back to life and, when this happens, one sees a rather curious alignment of forces. The Bharatiya Janata Party, whose ideological forbears bitterly opposed the reforms of the Hindu personal laws (on the grounds that it gave Hindu women too much independence), now claims to be in favour of a common civil code. Meanwhile a Congress that claims to be upholding Nehru's legacy opposes any such moves, although Nehru himself had hoped that a common civil code would eventually come about. One expects nothing better from the Congress nowadays. But what is truly puzzling, and even somewhat sad, is how many prominent liberals and feminists have themselves shied away from arguing in favour of a common civil code. Surely equality before the law is a fundamental liberal precept? And the ending of laws that discriminate against women (as personal laws of religions certainly do) a core feminist project? Is it merely that, since the BJP claims to be in favour, they must be against? In the aftermath of the Shah Bano controversy, the scholar-activist, Vasudha Dhagamwar, wrote a short book, published by the Indian Law Institute, entitled*Towards the Uniform Civil Code. I would strongly recommend it, not least to liberals and feminists, for its fair-minded representation of the debate as a whole, and for its intellectual and ideological consistency in arguing for a civil code common to and for all citizens of the Republic. Part of the movement for a common civil code undoubtedly comes from a desire to impose uniformity and thus hasten national integration.*Hindutva*ideologues additionally argue that the failure to thus far bring about a common code is because of an alleged "appeasement of minorities". The question is, if indeed successive Congress governments have (as the Hindu Right claims) pampered Muslims, why is the community still so poor and vulnerable? Dhagamwar has the answer, when she observes that "the saddest part is that the minorities are not pampered, though their obscurantist, self-serving leaders may well be". Dhagamwar also emphasizes that "Muslim society is not a monolith". At the time, the Shah Bano judgment was supported by many Muslim intellectuals and women's rights activists, but these were drowned out by the hysterical cries from hardliners that the Supreme Court had put "Islam in danger". Thirty years later, many Muslims (as well as many non-Muslims) would agree with Shabana Azmi when she writes that "for far too long women have been victimized and justice has been denied to them under the pretence of personal law". Dhagamwar quotes the great historian of Islam, A.A.A. Fyzee, who remarked that "the process of evolution is co-terminous with human society. Nothing is static except that which is dead and lifeless. Laws can never be static." The laws of Manu sanctioned untouchability, but that pernicious practice was abolished by the Indian Constitution. In the same way, it is irrelevant whether the Quran does or does not sanction polygamy. The question is whether a society professing modern notions of gender equality should. A further argument in favour of a common civil code is legal clarity. For, as Dhagamwar points out, "the legal maze [in India] is bewildering enough without retaining a wide permutation and combination of laws which create rights [for] some and take them [from] another depending on their religion". Some feminists have opposed a common civil code on the grounds that it would lead to forcing "Hindu laws" on the minorities. The argument is specious. What one is asking for is not the extension of the Hindu personal law reforms of the 1950s on those Indians who are not Hindus. For law is not static. And we now know that those reforms, while substantial, were in some ways flawed and in other ways incomplete. Sixty years later, we need the best legal minds in India to come together and reframe a common civil code from first principles, based on the state of knowledge today. Many liberals seem to oppose a common civil code merely because the BJP claims to support it. This knee-jerk reaction is unfortunate. For a principled liberal position would be in favour of a common law to regulate the social practices of marriage, divorce, succession, inheritance, and adoption, this based on the best practices of all laws anywhere in the world, the judgment and selection done from the point of view of gender equality. http://www.telegraphindia.com/1150418/jsp/opinion/story_15128.jsp#.VTHO92ZWIlY Modi Sarkar should slowly start working on this now.
Texan Posted April 20, 2015 Posted April 20, 2015 The Supreme Court has made multiple judgements recently that divorced Muslim women are entitled to maintenance under CrPC 125 and that such law shall supersede any religious personal law. As such, it is now time to completely get rid of this regressive law that treats its women citizens as inferior species. However, as soon as you utter the words "Uniform Civil Code", the secular intellectual breed will start sweating and start calling you names without even seeing the merits of your argument. Even on ICF you will find many people here who will say "Minority appeasement only slightly affects majority, so it's no big deal. Majority will take care of itself." These people have no idea that minority appeasement policies such as the ones followed by the Congress party of recent times actually affects weaker sections of the minority more than any one else (in this case the women).
randomGuy Posted April 20, 2015 Posted April 20, 2015 Abdullah bin Abdulaziz Al Saud, the king of Saudi Arabia from 2005-2015 (who recently died), had about 30 wives. http://en.wikipedia.org/wiki/Abdullah_of_Saudi_Arabia 'about' - meaning they don't know the exact number of wives. :cantstop: EDIT: in comparison , the present king, salman bin abdulaziz has too few wives, only 5 (and only 13 sons, no info on the number of daughters)
randomGuy Posted April 20, 2015 Posted April 20, 2015 Arabs import wives from Pak. and Indian Hyderabad too if I am not wrong.
BeautifulGame Posted April 20, 2015 Posted April 20, 2015 Some of the stuff in Muslim personal law are completely medieval . For ex if the Husband dies the son's custody /properties go to his Father not to his wife(Mother for son custody) IIRC. We desperately need a UCC . The problem is RSS always gives the issue a hindutva coloring and Congress goes for vote bank politics We need the so called liberals particularly from Muslim community to speak out in favor of it .If we were ever to have UCC anytime soon
amiret Posted April 20, 2015 Posted April 20, 2015 I agree with Mr. Guha , though i doubt the current Govt has the courage to move forward in this regard. Ravi Shankar Prasad indicated that the government is willing to bring in a Uniform Civil Code in line with a Constitutional provision, but only after widespread consultations with all political parties. Don't expect any progress over the next decade.
randomGuy Posted April 20, 2015 Posted April 20, 2015 I agree with Mr. Guha , though i doubt the current Govt has the courage to move forward in this regard. Don't expect any progress over the next decade. Bjp is always for the UCC, sickular parties want to differentiate themselves from the bjp, so don't support it.
Crookbond Posted April 20, 2015 Posted April 20, 2015 The Supreme Court has made multiple judgements recently that divorced Muslim women are entitled to maintenance under CrPC 125 and that such law shall supersede any religious personal law. As such, it is now time to completely get rid of this regressive law that treats its women citizens as inferior species. However, as soon as you utter the words "Uniform Civil Code", the secular intellectual breed will start sweating and start calling you names without even seeing the merits of your argument. Even on ICF you will find many people here who will say "Minority appeasement only slightly affects majority, so it's no big deal. Majority will take care of itself." These people have no idea that minority appeasement policies such as the ones followed by the Congress party of recent times actually affects weaker sections of the minority more than any one else (in this case the women). I am all for UCC. That said, what are your views on laws that are "majority appeasement"? Are you aware they exist? Can you tell us some laws?
Khalpat Posted April 20, 2015 Posted April 20, 2015 I am all for UCC. That said' date=' what are your views on laws that are "majority appeasement"? Are you aware they exist? Can you tell us some laws?[/quote'] I would not call it a law but demanding or granting Reservation in government services has become biggest appeasement tool both for minority or majority.
Texan Posted April 20, 2015 Posted April 20, 2015 I am all for UCC. That said' date=' what are your views on laws that are "majority appeasement"? Are you aware they exist? Can you tell us some laws?[/quote'] Do shed some light and I will be happy to be enlightened.
sensible-indian Posted April 20, 2015 Posted April 20, 2015 How can any liberal oppose UCC which is needed? Are there any out there?
coffee_rules Posted April 20, 2015 Posted April 20, 2015 Some of the stuff in Muslim personal law are completely medieval . For ex if the Husband dies the son's custody /properties go to his Father not to his wife(Mother for son custody) IIRC. We desperately need a UCC . The problem is RSS always gives the issue a hindutva coloring and Congress goes for vote bank politics We need the so called liberals particularly from Muslim community to speak out in favor of it .If we were ever to have UCC anytime soon One good aspect about Muslim law is the rehabilitation of widows and divorcees back in to mainstream of society. Hindus, atleast during 50s didn't think about it much and with Sati they would rather have the widow opt to die. There is no concept of divorce as per Hindu traditional marriage. There are no tales in mythology where a wife gets divorced and marries another person. Marriage was a bound by seven-lives! Atleast the liberal hindus ensured we don't have a law that looks down upon women. Guha, the eternal right-wing hater, doesn't trust BJP going for UCC. Since 1989 and also From the first Vajpayee govt, BJP always wanted to promote UCC. They opposed it in 1947 (RSS/HMS), doesn't mean BJS and BJP since 1985 is not for UCC. Times change and people evolve. That is also evident here any pro-BJP view automatically is called a chaddi.
Crookbond Posted April 20, 2015 Posted April 20, 2015 I would not call it a law but demanding or granting Reservation in government services has become biggest appeasement tool both for minority or majority. There's an ocean of difference between what you wrote there and I agree with you. So, what should be done according to you? I would love to hear solutions. Do shed some light and I will be happy to be enlightened. You passed a judgment with perfectly normal words used as pejoratives. Surely, you must be aware. How can any liberal oppose UCC which is needed? Are there any out there? The true liberals never oppose UCC - what they oppose is majoritarianism passed off as UCC.
Crookbond Posted April 20, 2015 Posted April 20, 2015 One good aspect about Muslim law is the rehabilitation of widows and divorcees back in to mainstream of society. Hindus, atleast during 50s didn't think about it much and with Sati they would rather have the widow opt to die. There is no concept of divorce as per Hindu traditional marriage. There are no tales in mythology where a wife gets divorced and marries another person. Marriage was a bound by seven-lives! Atleast the liberal hindus ensured we don't have a law that looks down upon women. Guha, the eternal right-wing hater, doesn't trust BJP going for UCC. Since 1989 and also From the first Vajpayee govt, BJP always wanted to promote UCC. They opposed it in 1947 (RSS/HMS), doesn't mean BJS and BJP since 1985 is not for UCC. Times change and people evolve. That is also evident here any pro-BJP view automatically is called a chaddi. Exactly and an anti-BJP position automatically makes you a sickular Italian khangress mafia.
Muloghonto Posted April 20, 2015 Posted April 20, 2015 As a liberal, i am not only in favor of uniform civil code, i am also in favor of repeal of article 370 as well.
Texan Posted April 20, 2015 Posted April 20, 2015 There's an ocean of difference between what you wrote there and I agree with you. So, what should be done according to you? I would love to hear solutions. You passed a judgment with perfectly normal words used as pejoratives. Surely, you must be aware. The true liberals never oppose UCC - what they oppose is majoritarianism passed off as UCC. If you know of a law that is oppressive and you perceive as majority appeasement, then post about it. If not, then shun this meandering meaningless back and forth.
cowboysfan Posted April 20, 2015 Posted April 20, 2015 I am liberal and i agree but this hot potato will not be touched by BJP even though they promised any time soon.
Gollum Posted April 21, 2015 Posted April 21, 2015 UCC is an absolute must today. But no political party in present day India has the balls to enforce it.
Crookbond Posted April 21, 2015 Posted April 21, 2015 If you know of a law that is oppressive and you perceive as majority appeasement' date=' then post about it. If not, then shun this meandering meaningless back and forth.[/quote'] If you talk about UCC, you should know about laws that favor the majority. IF not, then it's just the average joe secular hurrrr durrr arguments made for internet points.
jalebi_bhai Posted April 21, 2015 Posted April 21, 2015 If you talk about UCC' date=' you should know about laws that favor the majority. IF not, then it's just the average joe secular hurrrr durrr arguments made for internet points.[/quote'] He has asked you, multiple times, to be factual and specific. Do you mind obliging?
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