JOIN USOn October 6, the Law Commission circulated a questionnaire inviting suggestions about ways to accomplish the constitutional objective of a uniform civil code (UCC).
Within the terrain of rights and duties the Constitution has charted, UCC features in Part 4, where the directive principles of state policy are defined. Partly because of the caution that constitutional founders exercised in judging the feasibility of various objectives, Part 4 was deliberately cast in a subordinate position to Part 3 or the charter of fundamental rights.
In a real-life situation -- of a woman seeking her fundamental rights -- Shayaro Bano from Uttarakhand approached the Supreme Court (SC) in February, to contest the summary divorce pronounced on her by the utterance of the term “talaq” thrice. The All India Muslim Personal Law Board (AIMPLB) in an affidavit submitted before the SC did its cause no good, arguing that “triple talaq” procedure was a reasonable exit from a faltering marriage, when the lack of that option could well lead to the woman’s murder.
The AIMPLB attracted well deserved ridicule for this absurdity. But hidden in its verbiage was an acknowledgment of the precedent established in the 2002 SC judgement in the Shamim Ara case, which imposed a test of “adequate cause” and “prior reconciliation” before talaq was effected. The SC ruled in that specific case that there was insufficient proof of talaq being pronounced and more importantly, that there were “no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq”.
After initially opposing the Shamim Ara decision, the AIMPLB affidavit before the SC in the “triple talaq” case signalled that it will not contest the precedent or stand in the way of any aggrieved person seeking remedy for talaq pronouncements that violated its stipulations. This concession to good sense may have come too late for the AIMPLB. The Supreme Court is also hearing a petition from a woman of the Muslim faith from West Bengal, questioning the authority of the AIMPLB to decide matters of personal law.
Women’s groups cutting across lines of faith have joined forces with political parties of various persuasions to demand an end to the “triple talaq” practice. The BJP has joined this demand for reasons connected to its identity as a party that denies minority rights within India’s republican order. Meanwhile, the Congress has, expectedly for a party that seeks to cultivate a community’s electoral support through the mediation of its most conservative clerical elements, tiptoed around the issue.
Except for sections of the Muslim clergy, there is broad support for declaring “triple talaq” a violation of fundamental rights. From there to the UCC though, is a big step, involving layers of complexity and potentially, the stiff opposition of Hindu orthodoxy. When he quit the Union Cabinet in 1951, Dr B R Ambedkar effectively signalled that the greater obstacle to the principle of equality came not from minority faiths, but hidebound traditions of the self-proclaimed majority.
Among the fundamental rights, Article 14 ensures the right to equality before the law, and Article 25 protects the right to religious freedom. Together with another article which safeguards the right of any “distinct” group to maintain its identity and culture, these constitutional assurances set up a conflict of objectives. Does uniformity serve the larger purpose of equality? And if equality remains elusive, could identity serve as a substitute?
Congress’s stand
The Congress regimes at the Centre and the states have typically taken the second course, maintaining the electoral loyalty of the minority faith through a link with its traditional leadership and clergy. The BJP, which has built its fortunes on disdaining this brand of “minorityism”, has long been committed to submerging all identities in its own construct of nationalist uniformity. If the Congress offered identity as a substitute for equality, the BJP denies both.
Uttar Pradesh (UP) is where the BJP seeks immediate electoral rewards, using templates from 1991 when it won power for the first time in the state, and in 2014 when it swept 71 of UP’s 80 Lok Sabha seats. In between, the BJP suffered a long period of eclipse as the state’s substantial Muslim electorate learnt to leverage its strength through strategic alliances with backward classes on one side and Dalits on the other. In electoral rewards, the strategy peaked in 2012 when candidates of the Muslim faith won 68 seats in the 403-member Assembly, for the first time achieving rough parity with the community’s share in the total population.
It all fell apart in 2014, when the BJP succeeded in fragmenting alliances formed over two decades, through a strategy on the ground that deployed rumours of “love jihad” and injuries to the “gau mata” with potent effect.
Media investigations into the build-up to the next Assembly election in UP indicate an ominous increase in the number of communal incidents registered in the state’s police stations. A large number of these remain unclassified since reports received in police stations are sketchy and difficult to bracket. A significant number of incidents, roughly about 20% have been registered as originating in injuries to the cow’s dignity. A similar number springs from relations between the sexes, from allegations ranging from harassment to forbidden love.
Full-blown riots have not broken out as last seen in Muzaffarnagar in 2013, since that would be contrary to the BJP’s effort to burnish its global image as a responsible party of governance. There is little doubt though that the energy with which the UCC is currently being pressed is integrally connected to the party’s larger electoral calculations for UP.
(The writer is a senior journalist based in Gurgaon)