Uniform Civil Code: Should Religious Laws Be Put Above Individual Rights?

Posted on May 9, 2016

By Manisha Chachra:

Thirty-five-year-old Shayara Bano’s petition to the Supreme Court has jostled the country once again with the debate of uniform civil code. The petition challenges triple talaq, polygamy, and halala, claiming them to be unconstitutional. Shayara Bano’s greatest fear as reported to the Indian Express was the word ‘talaq’ uttered thrice by her husband, Rizwan Ahmed. The continuous warnings of talaq turned out to be serious when one day Rizwan spelled out the word and terminated their ‘nikah’ (marriage). Rizwan has refused to accept her back citing their religion doesn’t allow for the same, after this union had resulted in 6-7 abortions for Shayara, given that tubectomy is prohibited in the Quran.

Back during my graduation days, when we were taught about personal laws in the Islamic culture, we used to find it almost comical that uttering a word thrice can lead to a divorce. The reality of Shayara Bano reveals how these laws turn marriage into an exploitative system, subjecting women to domestic violence, abortions (control over her reproductive health) and restricting the ability to make a free choice.

What is intriguing about Shayara Bano’s petition is that it does not make a claim for uniform civil code, rather it is the assertion of the right to make a free choice, right to live a dignified life, right to be equal and not discriminated on the grounds of gender and religion, that makes this petition extremely crucial. The petition is a challenge to personal practices of religions vis-à-vis our equality and liberty as citizens of India. Nonetheless, the uniform civil code is a proposal to replace Islamic personal laws and bring in a standard set of rules that govern all religious communities in the country.

From the colonial times, many women revolutionaries have raised their voice against the tyrannical nature of personal laws. Women’s movements in the colonial era advocated for a uniform civil code citing that the personal laws created situations of economic dependence for divorced wives. Efforts were made in the post-Independent era to pass this law but all in vain. In the 1980s, the debate was rekindled once again, when a 62-year-old Muslim woman, Shah Bano, raised her voice to demand the right to alimony in the courts going on to win the case. However, this historic judgment let to a nation-wide protest by Muslim fundamentalists against the Indian judiciary interfering in the Islamic personal laws. This triggered the then Rajiv Gandhi government to pass The Muslim Women (Protection of Rights on Divorce) Act, which reversed the stance of the court and altered the laws to favor the personal practices in the Islamic tradition.

Various governments have used religion as a political instrument rather than using it to create an environment of social reforms. BJP, on multiple occasions, has voiced its keenness to pass the uniform civil code. However, a uniform civil code passed by the Janata government might have ulterior motives of its own (Hindutva). Such a uniform civil code might not be sufficient even if it comes into existence.

There is an urgent need for intra-religion reforms which need to be initiated by members of respective religious communities. Particularly because Muslim women have forwarded a different interpretation of the Sharia (Muslim law) from a gendered perspective. When asked about internal religious reforms, Rummana Zaidi, a Research Scholar from Jamia Milia Islamia, says, “The proposition of a uniform civil code is extremely alluring. However, one has to be extremely cautious when venturing towards this in a country like ours, because a vast majority of citizens, who are firm believers or in some way or the other feel affiliated to their religious groundings, will certainly not welcome this change and are bound to be hostile. The need, therefore, is to first work internally within the religious frameworks and then move toward larger changes. Otherwise, the efforts might prove to be futile. One cannot ignore the ground realities.”

In a similar vein, Lubna Qadri, a Kashmiri Woman rights activist opines “The misinterpretation of Islamic law is quite common nowadays. If one goes by hadiths and seerat, Islam has always empowered women in every possible way and has secured women’s position in society like no other law.” As far as triple talaq is concerned, she says “It should not be a one-way street where there are no chances of return. The practice of triple talaq in a single sitting leaves no room for any repentance, negotiation and return for the two persons. Therefore, there is an immediate need to interpret Shariat in a gender-just manner.”

In the end, Bano’s petition raises some fairly fundamental questions. One, with the predominance of religion in determining every aspect of personal life, where is the space for freedom of an individual? The Constitution of India guarantees a life of dignity and personal freedom to all the citizens irrespective of caste, class, gender or religion. These foundational principles are laid out in the form of Fundamental rights. Should the right of groups, in this case religious groups, be put above the rights of the individuals? Is curtailing individual choices in the name of group identities fair to the principles of freedom and liberty? It is contended that with modernization and globalisation, the advent of new technology and overlapping of different cultures, it is necessary to initiate social reforms within the framework of religion. Such Reforms should free the religion from inequalities and patriarchal attitudes and create a space for democratic cultural practices.

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