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Pulwama Attack: Time to abolish Article 370 and implement Uniform Civil Code

India's first Prime Minister and Congressman Pandit Nehru was supportive of a UCC but buckled under pressure.

The debate to abolish Article 370 and bring in Uniform Civil Code has once again come to the forefront after the ghastly attack by Pakistan backed terrorists which killed 40 CRPF jawans in Pulwama last week. RSS has been advocating for discussions with various stakeholders to put in place a common code. In its election manifesto for 2014 General Elections, BJP reiterated its commitment to draft a common civil code drawing upon the best traditions and harmonising them with modern times.

“BJP believes there cannot be gender equality till such time India adopts a Uniform Civil Code, which protects the rights of all women.”

According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370. Article 370 was eventually drafted by Gopalaswami Ayyangar.

Uniform Civil Code (UCC) means having one set of identical personal laws applicable to all citizens of India irrespective of caste / creed / community dealing with the right to property; personal matters like marriage, maintenance, adoption, inheritance and divorce. Goa is the only state in the county which has a UCC.

Proponents of UCC argue that as per Article 44 it is one of the directive principles which has been laid down by the constitution.

“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Opponents argue that it is only a directive principle and shall not be enforceable by any court (Article 37). Further, it interferes with Article 25 which guarantees citizens the right to freedom of religion. Also, many of the other directives have not been made law after 60+ years of independence, so why only this should be implemented.

The BJP and the Left parties are supportive of a UCC while Congress and some representative bodies of minority communities are opposed to it. In fact, India’s first Prime Minister and Congressman Pandit Nehru was supportive of a UCC but buckled under pressure. He had said,

“Well, I should like a civil code which applies to everybody, but wisdom hinders. If the member or anybody brings forward a Uniform Civil Bill, it will have my extreme sympathy. But I confess I do not think at the present moment, the time is “ripe” for me in India to push it through. I want to prepare the ground for it.”

The ripe time it seems has come. India emerging as a world superpower is being constantly peddled by Pakistan which has been encouraging terrorist activities in India. A UCC is required to present one face of unity and strength to the world. It also helps to bring in Indianness, Bhartiya asmita.

Nehru overcame opposition from his own partymen to pass the Hindu Code Bill in stages through a difficult Parliament. When asked by Taya Zinkin, correspondent of Manchester Guardian, six months before the China War, what was his greatest achievement, Nehru didn’t mention the freedom of India. He said it was passing the Hindu Code Bill, which freed Hindu women from the shackles of a law which permitted polygamy and denied inheritance. Taya Zinkin asked Nehru why he had not ensured a similar legislation for Muslim women. The political climate, said Nehru, was not right.

So, Congressmen please revisit your opposition to UCC.

When minorities have agreed to a uniform criminal law, then why not a civil law. When Muslims have agreed to a uniform civil code in many countries like Australia, Unites States and United Kingdom, then why do they have an issue in agreeing to a similar thing in India.

The Supreme Court of the country in various judgements like Shah Bano case in 1985, Sharda Mudgal case and in Vellimuttam’s case in 2003 has made observations that there needs to be a UCC. In a recent judgement in July 2014, the Supreme Court termed the fatwas as illegal and said that it has no place in independent India and cannot be used to punish the innocent. The verdict triggered a debate on Muslim personal law and the necessity of having a UCC.

Are all Muslims opposed to UCC? No. There seems to be a divide in the community regarding the powers of the Muslim Personal Law Board and their relevance in modern society. Arif Mohammed Khan, former union minister, who resigned in the aftermath of the Shah Bano case, in one of the TV debates on the topic, opined that the provisions of the Muslim Personal Law in some cases are very divergent from the Shariat Law. He went on to say that personal law is not among the five pillars of Islam.

People who swear by the Muslim personal law fail to recognise the fact that this was enacted by the British as recently as in 1937. That too with an ulterior motive of bringing a divide in India. It is important to understand that prior to British, the Shariah law was administered by the Qadis who had properly imbibed the spirit of Islamic laws, so the Muslim personal law is not a divine law. In fact, not even Hindu laws are divine laws and should be adaptable to change.

Parties after Independence and especially Congress have treated Muslims as a vote bank and successive governments have refrained from making any changes to the existing law / adopt UCC for fear of backlash from the community. It is these same parties which preach secularism.

If India is a secular country, why not secular laws for the population? Critics in minority community believe UCC is sort of an imposition by the majority community and preach reforms within the community through changes in personal laws. This opposition won’t solve their problems though.

India needs a Uniform Civil Code, like many developed countries, so that citizens across religions have the same set of rules to adhere to. This will do good not only to plight of women among Muslims but also among Hindus and other communities.

And for those who say it interferes with the fundamental right to religion. Article 25 of the Constitution states, “Nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any financial, economic, political or other secular activity which may be associated with religious practice.”

Also, the “special status” of Jammu and Kashmir allows it to retain the law prohibiting outsiders from buying land, and the central government cannot overrule it. This prevents the assimilation of Kashmiris in India. Repealing act will allow people outside of J&K to buy land and improve the cultural scene of the valley.

To sum up, entire India is asking in one voice to repeal Article 370 and implement the Uniform Civil Code in the country. Let’s see if BJP government listens to the mood of the people…

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Gaurav Singhal
Coffee Addicted, Often Writer, Proud Bharatiya

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