Focus on reforms in Muslim personal law, not Uniform Civil Code
On December 7, the Supreme Court dismissed a PIL seeking a direction to Parliament to enact a Uniform Civil Code to put an end to alleged discriminatory practices against women in Muslim personal laws. With the court having already agreed in October to consider a petition challenging arbitrary divorce and polygamy as violative of fundamental rights of Muslim women, the latest decision by a bench presided over by chief justice TS Thakur should silence those pushing Uniform Civil Code as a means for reform.
Though not many disagree on the need to improve the lot of Muslim women, nothing seems to have happened in view of resistance from the community as changes have often been sought to be imposed through a Uniform Civil Code rather than reforms in the Muslim personal law. Sometimes courts have also referred to Uniform Civil Code as a measure to get rid of discriminatory provisions in Muslim personal law, hampering possibilities of changes through reform in the personal law.
The decision by Justice Thakur’s bench should shift the focus to reform in Muslim personal law rather than on Uniform Civil Code which became the subject matter of debates following observations by some benches in the recent past.
A Supreme Court bench on October 13 asked the government to place on record its stand on having a Uniform Civil Code for all citizens of the country. While the debate provoked by the order was still going on, the Gujarat High Court on November 5 observed that India should shun polygamy and establish a Uniform Civil Code.
The observations only gave impetus to the demand for a Uniform Civil Code by one group and the consequent resistance by the other. There may be reason for resistance. Incidentally, polygamy was prevalent among Hindus too but the government deliberately avoided the Uniform Civil Code route (as suggested by some in the 1950s) to ensure that reform was ushered in without much resistance and in time. Several discriminatory provisions including polygamy were outlawed for Hindus, Buddhists, Sikhs and Jains with the codification and reform of Hindu personal laws in 1955.
In the 1995 Sarla Mudgal case, the Supreme Court took a practical approach and stressed that polygamy could be outlawed through legal reform. “Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal law, wherein the practice of polygamy has been either totally prohibited or severely restricted. Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context,” the court said. The court indicated that reforms would make it easier for the society to move towards a uniform civil code.
With absence of consensus on a uniform civil code coming in way of reform through a legislative process, the petition pending before the Supreme Court gives hope for a change. In what has placed the discriminatory practices under the judicial scanner, the court on October 16 agreed to consider a petition challenging arbitrary divorce, polygamy and other discriminatory provisions against women in the Muslim personal law.
While the court will examine if arbitrary unilateral divorce and polygamy violated the right to equality, it has already decided in a number of cases that the fundamental right to religion did not include within its ambit the right to have more than one wife. The Supreme Court has upheld service rules prohibiting bigamy and even removal of Muslim government servants for having two wives.
In fact, the Constitution makers were aware of the conflict between the Fundamental Rights and discriminatory provisions in the personal laws of Hindus and Muslims. With some members opposing Uniform Civil Code, KM Munshi indicated in the Constituent Assembly that it was a lost battle they were fighting as they had already voted for guaranteed Fundamental Rights. “They feel that the personal law of inheritance, succession, etc, is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a fundamental right to that effect and you have an article here which lays down that there should be no discrimination against sex,” Munshi said.