Supreme Court renews its plea for uniform civil code

Had the Supreme Court judgement directing the Government to formulate a uniform civil code come at any other point of time, it could have led to an uproar. But the Charar-e-Sharief incident and the heated debate on tada probably deflected the nation's attention. For the time being.Ten years ago, it was over money. But this time the debate on a uniform civil code has been aroused by marriage. The controversy of 1985 was provoked by a Supreme Court decree that Shah Bano, a Muslim woman, was entitled to receive maintenance from her husband who divorced her.Last fortnight, the court renewed its plea for a uniform civil code while striking down the right assumed by Hindu husbands to practise polygamy under the cover of converting to Islam.The case related to four Hindu wives who fell victim to this practice. The court nullified the second marriages of their husbands. This ruling, however, affects the right of a convert only. A born Muslim can still have four wives, as permitted by the Muslim Personal Law (Shariat) Application Act enacted by the British in 1937. The persistence of this anomalous inequality has prompted the apex court to invoke the need for a uniform civil code which will supersede the personal law. "Till the time we achieve the goal- uniform civil code for all the citizens of India-there is an open inducement to a Hindu husband, who wants to enter into a second marriage while the first marriage is subsisting, to become a Muslim," observed the bench comprising Justice Kuldip Singh and Justice R.M. Sahai.This is not the first time the court has reminded the Government of its constitutional obligation to bring about a uniform civil code, enshrined in Article 44 as a directive principle of state policy. But given the executive's track record of shying away from this sensitive issue, the court has, for the first time, directly asked the prime minister to take a "fresh look" at the article and directed the Government to file an affidavit by August 1996, indicating the steps taken and efforts made towards securing a uniform civil code.The confused Muslim leadership is yet to formulate a stand on the judgement. The much familiar voices of leaders like Syed Shahabuddin, Imam Bukhari and Sultan Salahuddin Owaisi - who held forth on the Shah Bano case - have not been heard so far. However, there have been voices of protest and anxiety across the country. The president of the Muslim Personal Law Board, Maulana Abul Hasan AliNadwi, says: "It will only create fresh tensions in the country.""Why should we be steamrollered by the Hindus and accept their notions of right and wrong?"Most Muslim leaders feel that it will not be in the interests of the community to join the issue immediately. Says a senior Muslim leader: "So far, the Muslims have not been deprived of their personal law." Most leaders feel that "making unnecessary noises at this stage will only help the sangh parivar, which will try to generate a Hindu backlash to cash in at the time of Lok Sabha polls". A section of the Muslim leadership also believes that they should first try to get tada repealed. There are specific reasons for the muted voices of Muslim leaders on an emotive issue like personal law. The demolition of the Babri Masjid and the massive communal violence in its aftermath put a question mark on the credibility of the self-styled leaders. Virtually all Muslim leaders associated with the protection of the Babri Masjid became suspect in the eyes of the community. Still, the leadership will not give up the personal-law issue.The long deadline for the affidavit, though, means that the Government is under no immediate pressure. Not even the repeated reference to the issue in Parliament has forced the Government to take a stand. The BJP has, not surprisingly, seized the opportunity to press its long-standing demand for a common law for all communities. Others, like the National Front and Left Front, are opposed to any code being imposed on the Muslims. Legal circles are also sharply divided on the efficacy and even the legality of the Supreme Court decision.Sahai, who retired soon after delivering the landmark judgement, says: "The issue is sensitive and has political ramifications. Any view on the subject is bound to provoke a debate." As for the allegation that the court has intruded into the executive's realm by calling for an affidavit on the uniform civil code, he says: "We had to take into account what happened in the past. Our address to the Government was inevitable in the circumstances."But senior advocate Danial Latifi, who was counsel for Shah Bano, believes it was "improper" on the part of the Supreme Court to travel outside its sphere. "We don't want judges advising the executive. The prime minister is subordinate to Parliament and not the Supreme Court," he says, arguing that even otherwise, only benches comprising five judges or more are competent to raise constitutional issues.Latifi sees no contradiction between his stand in the Shah Bano case and his reservations about enforcing a uniform civil code. Reason: the Muslim law has a lot of positive features, he says, like the right of the girl to get half of the boy's share. "I don't know if the Hindus are ready to give women the land of security the Muslims provide. Why should we be steam rollered by the Hindus in the name of a uniform civil code and accept their notions of right and wrong?" asks Latifi. But Sahai says: "The judgement envisages a common code which incorporates the best of all the personal laws."There are also some Muslim lawyers, such as Sona Khan, who welcome the Supreme Court's reminder about the uniform civil code. She challenges the popular perception that the Muslim Personal Law is inviolable on account of its divine origin. Shariat is, on the contrary, "violative" of Indian Christian law that a divorce can be the Quran, she says, and includes pre-Is- granted only on the grounds of adultery. lamic practices of the Arab world. Says Subsequently, a delegation of Christian Khan: "The Quran says no man can re-organisations made a representation be-marry unless his first wife is barren, fore the Government asking that the per-women outnumber men in the region, the sonal law be reformed accordingly, so outnumbering women are orphans or that Christians in the rest of the country widows, and he has the capacity to treat his could also obtain divorce on other wives absolutely at par with each other grounds. The Government has so far not Last year, the Kerala High Court done anything with regard to the Christ - struck down an archaic stipulation in the ian law. It is even less likely to tinker with the Muslim law given the sharp differences within the community.-With Zafar Agha in New DelhiPublished By: AtMigration Published On: Jun 15, 1995 00:00 IST--- ENDS ---

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Supreme Court renews its plea for uniform civil code

The Supreme Court renews its plea for a uniform civil code. The question is, Will the Government heed it?

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