The stand taken by the NDA government led by the Bharatiya Janata Party before the Supreme Court — that it opposes the Muslim practice of triple talaq — has kicked off a controversy. Even though the cleverly drafted reply of the central government avoided the use of the workmen Uniform Civil Code (UCC), the almost simultaneous Law Commission’s questionnaire seeking public opinion on the viability of UCC has left left little doubt about the government’s intentions.
The government’s response comes to a petition filed by a Muslim woman who argued that triple talaq was unconstitutional and violative of a woman’s fundamental rights. The couple have four small children and the petitioner alleged that her husband had even taken away her children after pronouncing triple talaq.
The All India Muslim Personal Law Board (AIMPLB) takes the stand that courts cannot interfere with personal laws. It accuses the government of attempting to sneak in UCC under the garb of promoting gender equality by its opposition to triple talaq in the Supreme Court and argues that personal law cannot be rewritten in the name of reforms.
Contesting the plea, the central government affidavit states that gender equality is part of the basic structure of the Constitution and that it is “non-negotiable”. This is the first time that any government has officially taken a stand to oppose the custom of triple talaq, although such a demand was made earlier too by individuals and women’s groups seeking equality and reforms in Muslim personal law.
The BJP-led government has raised the issue of triple talaq when Uttar Pradesh elections are round the corner, raising apprehensions on the motives behind the move
The debate on UCC goes back to the Constituent Assembly, where too opinion was sharply divided on whether Uniform Civil Code was advisable for the country. Those opposing the proposal, particularly Muslim members, said it is the right of any community to follow its own personal law should be made a fundamental right. They said that any attempt to change it would imply interference with the way of life of those people who have been observing these laws for ages. Several members belonging to other religions also opposed a Uniform Civil Code saying it amounted to interference in the way of life of those people who had been observing these laws for generations.
After a lengthy debate, it was decided to place the subject under the Directive Principles or State Policy which are not enforceable by law. Under Article 44 of the Directive Principles it was provided that the state would “endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”.
The proponents of those backing a ban on triple talaq point out that the practice has already been banned in several Muslim majority countries, including Pakistan and Bangladesh. It is a fact that the abolition of triple talaq by Muslim Family Law Ordinance, 1961, was endorsed by Pakistan Supreme Court and it remains the position till date. It is another matter that in the current circumstances, in which fundamentalists are dictating terms in Pakistan, it may have been difficult to bring in such a legislation now.
Some other Muslim-dominated countries like Tunisia and Algeria provide for divorce only in the courts. Similarly, Turkey and Cyprus have a non-religious code of civil law. In Malaysia, a man needs to take permissive from his first wife as well as the government-appointed religious authority before a second marriage.
Even in the countries where triple talaq is allowed, experts point out, it is not as simple as is generally believed. The man has to proclaim talaq at three different places and has to have different witnesses for the three occasions. Also he has to provide sufficient financial support for his first spouse and children. At the core of the issue of triple talaq is also the fact that the Muslim personal law is based on the wider framework of Shariat and is not codified, which has led to negation or dilution of traditional rights to women.
However, given the fact that it is a BJP-led government that has taken the stand on triple talaq, that too on the eve of the Assembly elections in Uttar Pradesh, apprehensions are bound to have surfaced on the motives of the government. Muslims are general wary of the right-wing government at the Centre, particularly after the Babri Masjid demolition and the massacre in Gujarat. Unfortunately, even in UP, where the BJP is making a concerted effort to gain power, there has been an upward swing in the number of communal clashes. Over 12,000 cases of communal violence have taken place in that state since 2010.
Although senior BJP leader and Union Finance Minister Arun Jaitely has sought to underline that there is a difference between the government stand on triple talaq and UCC, several Muslim organisations are of the view that the issue must be left with community leaders to take a stand on. As regards the mention under the Directive Principles of State Policy, these groups say that the government is adopting a pick-and-choose policy. There are several other subjects mentioned under the Directive Principles, such as enforcement of prohibition and ensuring a decent quality of life for citizens, but only UCC, and by extension triple talaq, is being singled out.
There is deep suspicion among the vast majority of the community about the motives of the government, particularly that led by the BJP. It is not appropriate to push reforms down the throat of a community in which large sections are afflicted with a siege mentality. Large sections of the community closely watch every move of the party with cynicism and there are always fringe groups who are ready to whip up communal frenzy. It is best to leave the sensitive issue to the community itself. The Congress has taken the position that the government must keep away from enforcing personal law and a uniform civil code in the country. As one of its senior leaders, Manish Tewari recently remarked, “Forget the minorities, even the majority community has its own differences in religious customs for marriage, divorce, devolution of property”.
India is known for and is proud of its diversity. The idea of a Uniform Civil Code militates against the underlying secular principles of democracy that we cherish. Each community needs to be given its space and rights so long as these do not interfere with the rights of others. This is not to defend the practice of talaq, particularly the version shown in films of yore. It is a fact that a large section of progressive Muslim community, particularly those who have had access to education and those who have been fighting for equality of women, are in favour of abolition of triple talaq and other reforms in Muslim personal laws. There is growing awareness and voices from more and more among the Muslim community are coming out in favour of reforms.
It is well known that the Muslim community lags behind in various parameters be it economic, social or education. The latest census data on education levels released in September discloses that at 42.7 percent, Muslims have the highest percentage of illiterates. The overall percentage of illiterates for all communities in the country is 36.9. The government must work towards providing better education and other basic facilities to all, particularly to large sections of deprived minorities. Let the spread of education and better living standards generate awareness. It is bound to lead to opening the world to them and, in turn, lead to demand for reforms from within the community. Thrusting religious reforms down the throats of followers would be akin to playing with fire.