The debate around Uniform Civil Code (UCC) has once again blown the lid off of Islamists. The extent of their aversion to anything that equates them to the “kafirs” has been revealed ever since Prime Minister Narendra Modi on 27th June underlined the need for UCC.

The All India Muslim Personal Law Board (AIMPLB) on 6th June while responding to a media channel’s question in the context of UCC said that there are already over 100 Sharia courts in India and that it is planning to establish more Sharia courts in Muslim-populated areas.

This rather brash statement came following the AIMPLB’s meeting with Congress, NCP, and Shiv Sena (UBT) earlier on 6th June. AIMPLB spokesperson Qasim Rasool Ilyas claimed that Congress had assured them that their concerns regarding UCC will be considered should the subject come up for debate in the Parliament. He said that NCP chief Sharad Pawar said that they are not in favour of UCC and “only agree with the 21st Law Commission’s conclusion”.

If Qasim Ilyas is quoting Congress and NCP correctly, then the strategy of the Opposition on the Uniform Civil Code is quite clear – collude with the defying Islamists, base their own politics on the latter’s arguments, play the minority card, and selectively use the 21st Law Commission’s recommendations to sound institutionally credible and viable.

The Congress has already started using the last strategy. On 15th June, a day after the 22nd Law Commission invited suggestions, Congress issued a statement saying that the “Centre is desperate because the 21st Law Commission report deemed UCC unnecessary”.

The 21st Law Commission report in its conclusive take on UCC and indecisive arguments for the same has unintentionally given the Opposition reasons to use the report as grounds for objection to the Uniform Civil Code (UCC). Here are some excerpts from the report which give an overall idea about the direction that the Opposition might possibly take on UCC.

What is the 21st Law Commission report on UCC?

Article 44 of the Indian Constitution says that the State “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. UCC basically deals with bringing personal laws under the ambit of the Constitution.

The Ministry of Law and Justice made a reference to the 21st Law Commission of India on 17th June 2016 to examine matters in relation to Uniform Civil Code. The commission, led by former Supreme Court Judge Justice Balbir Singh Chauhan, did “detailed” research and held a number of consultations over the course of two years, and presented its recommendations on 31st August 2018.

The 21st Law Commission put forth its questionnaire in the public domain in November 2016 and received more than 75,378 responses. The majority of these responses, as per the Commission, dealt specifically with the issue of triple talaq or talaq-ul-biddat. The report has published research on the following topics: Marriage & Divorce, Custody and Guardianship, Adoption and Maintenance, and Succession and Inheritance.

Report Introduction: Misplaced priorities and loopholes

The 21st Law Commission report begins by saying that the consultation paper has been “an endeavor to understand, acknowledge and finally suggest potential legislative actions which would address discriminatory provisions under all family laws.” But it fails to specify as to what extent this would pave the way, if at all, for a level playing field amongst personal laws and not merely within personal laws.

The commission urges the legislature to “consider guaranteeing equality ‘within communities’ between men and women, rather than ‘equality between’ communities.” It would be no surprise should the Opposition base its argument on similar grounds demanding to make gender disparity alone the criteria for UCC as against the larger need to bring certain personal laws under the ambit of the Indian Constitution.

The Congress in its closed-door meeting on UCC rejected the idea of uniformity of all personal laws. This comes along the lines of the 21st Law Commission’s attempt to argue against uniformity when it says, “…this way some of the differences within personal laws which are meaningful can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity.”

Given the resistance by the Opposition and the previous committee towards the term ‘uniformity’, it is imperative that the Centre in its UCC draft publishes a detailed definition of the term in the context of equality not only within but also amongst personal laws.

On the point of the Right to Equality, the report says that “equity and not mere equality would mean that preferential rights and protections are maintained for vulnerable or historically subordinated sections of the society, for there is no equality in treating unequals as equals.”

Such an observation can potentially justify and be used to justify the minority-majority argument, which has already been made by the AIMPLB demanding that minorities be excluded from UCC. No doubt that equity must be ensured to protect the vulnerable sections of society but this too would require defining which sections amount to “vulnerable sections ” independent of the “minority rights” narrative.

In point 1.18., the report says “There are also a number of issues that are brought up frequently in public debate but cannot be and need not be dealt with the law. For instance, the recent case of a Kerala church where the father exploited a woman blackmailing her for the confessions she made to him led to a widespread demand for declaring the practice of confessions altogether illegal. These are precisely the type of knee-jerk reactions we must be wary of. It’s a far more progressive and sensible suggestion to eventually also include nuns as individuals who can hear confessions. This need not be enforced by law, but the brought in through consensus building within communities.”

The last line is outright problematic as the Commission seems to be easily given into the archdiocese of Bombay, Father Nigel Barrett. The statement is from the same report the Commission has referred to. In the statement on the demand by activists to let women confess to nuns in view of a case of exploitation of a Christian woman, the Father reportedly said, “Any change in India cannot be effected by the local Church or Indian government. It is a matter of personal law.”

In saying that the activists’ demand “need not be enforced by law”, the Commission has made its case for simply denying uniformity in not just the law but also in delivering justice to an extent.

Discounting the personal laws of a certain minority community?

A little further on to point 1.18., the Commission says, “It is important to separate the disease from the symptom of the disease. The issue itself is not about religion for the individuals who indulged in such exploitation (the case about a father exploiting a woman who was confessing in church) also do not have the patronage of any religion.” Such a statement seems devoid of ground realities.

Not limiting the argument to the above-mentioned Christian woman’s case, can the statement “…for the individuals who indulged in such exploitation also do not have the patronage of any religion”, be applied to Nikah Halala and polygamy and similar practices in Islam which are currently validated under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937?

Surprisingly, the Commission further adds, “Thus, such criminal cases cannot be seen as a problem with family law. The law already exists on the matter”, reflecting its disconnect with the grassroots and ground reality.

While talking about the Sixth schedule, the 2018 report says that “cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.” How uniformity can become the reason for a threat to the territorial integrity of a nation battling illegal infiltration is a point lost upon one.

In point 1.21., the Commission sings the minority tune as it says, “The term secularism only has meaning if it can also assure that the expression of any form of difference, not just religious but also regional does not get subsumed under the louder voice of the majority; and at the same time no discriminatory practice hides behind the cloak of religion to gain legitimacy.” While the first half of this sentence is based on the fear of a problem that does not exist, the second half seems like wishful thinking so far as minorities are concerned.

The observations of Hindu Laws versus observations of Muslim Laws

Adding to the above-mentioned loopholes is the instant and spirited criticism of Hindu personal laws. The same spirit appears to be lacking in points on Muslim personal laws in the report.

In point 1.8., the Commission says, “One of the foremost social legislations that were introduced in independent India was, in fact, the amendments to Hindu law. These amendments generated enormous protests in many parts of India and most notable and vociferous opposition came from the Hindu Mahasabha. Despite sustained protests, the Hindu Law Committee continued to contemplate reforms, under the stewardship of Nehru and Ambedkar.”

Why should there be the need to draw a comparative line between “opposition from the Hindu Mahasabha” and “reforms in Hindu law under the stewardship of Nehru and Ambedkar” is difficult to understand. The report goes on to refer to excerpts from BR Ambedkar’s recommendations on UCC, which essentially means that Ambedkar wasn’t entirely against the idea of a uniform civil code, or was at least supportive of the idea of a “voluntary uniformity” in personal laws if not uniformity alone unlike the report.

Further, in point 2.3., under Marriage and Divorce, it says that “the relatively easier procedure of divorce under Islamic law for men and women is also reflected in the relatively open attitudes towards remarriage of divorced and widowed women, a right that most Hindu women achieved through legislation.” Such a careful and crafty observation of “open attitudes” in divorce under Islamic law, only to point out that Hindu women achieved the same only through legislation displays a lack of objectivity.

While talking about adultery in Muslim law, the Commission takes a surprisingly brief stand and a soft tone even when talking against it. “The Dissolution of Muslim Marriage Act, 1939, also requires an amendment to explicitly include adultery as a ground for divorce for both spouses,” the report respectfully recommends.

Even when the report notes that “under Muslim law, adultery is not recognised as a ground for divorce unless it is committed with women of evil repute or leads an infamous life”, it concludes in point 2.10., that “all family laws include adultery as a ground for divorce”, furthering recommending that “it is important to ensure that the provision is accessible to both spouses.”

Point 2.49., under the Hindu Law section states that the significant reforms brought about by the Hindu Marriage Act, of 1955 remained far from satisfactory. “Reform of Hindu law which has historically been celebrated as a watershed moment has in the recent decades also been viewed with a critical lens, which highlighted that codification of Hindu law, in essence, was a codification of North Indian upper caste morality”, it reads.

It goes on to critique in great detail the Hindu customs and traditions, and by all means it is free to. But the point of contention arises when the report mentions the 1994 Sarla Mudgal v.Union of India case which highlighted data suggesting that many Hindus convert to Islam in order to practice bigamy. As per the report, “Anthropological evidence has shown that bigamous arrangements among Hindus continue to exist and have local recognition despite there being a law against it.”

While this serves as evidence of attempts to put the blame of bigamy on Hindus, who have always accepted laws against such practices, the point that polygamy is a custom codified under the law and is still very much prevalent amongst Muslims is not even suggested.

It is preposterous to note that the report, point 2.91., in the succeeding section on Polygamy in Muslim Law, paints a rather colourful picture. “Although polygamy is permitted within Islam, it is a rare practice among Indian Muslims, on the other hand, it is frequently misused by persons of other religions who convert as Muslims solely for the purpose of solemnising another marriage rather than Muslim themselves. Comparative law suggests that only a few Muslim countries have continued to protect the right to polygamy but with strict measures of control.”

The Commission has even gone on to refer to the law and cases in the Banana Republic of Pakistan.

Despite the fact that the Shariat Act prioritises the “Nikahnama” instead of a govt authorised documentation in order to register a marriage, the Commission suggests that, “The Nikahnama itself should make it clear that polygamy is a criminal offense and section 494 of IPC and it will apply to all communities.” Instead of suggesting that the documented proof of marriage in Muslims should also be under the ambit of a govt authority, the report rather calls for the Nikahnama to be the judge and declare polygamy as a criminal offense.

Even in the section on Adoption, the report has a highly objectionable approach towards Hindu Laws as against Muslim Laws and sometimes even Christian Laws.

No observations nor objections on matters of property in Islam

There is much to be mentioned yet about the report with regard to its questionable direction furthermore on issues of succession, inheritance, and property.

For example, the Commission should have addressed the scope of Waqf Act in relation to the Shariat Act. This considering the provision in the Shariat Act which says that matters of waqf (other than charities and charitable institutions and charitable and religious endowments) shall be decided by the Muslim Personal Law (Shariat).”

As per Sharia law, once Waqf is established, and the property is dedicated to Waqf, it remains as Waqf property forever. This means that Sharia law can essentially make provision to stake claim on public and private land by invoking the Waqf Act, 1995.

The Waqf Act, 1995 was enacted and implemented on November 22, 1995. This act provides for the power and functions of the Waqf Council, the State Waqf Boards, and the Chief Executive Officer, and also the duties of mutawalli.

This Act also describes the power and restrictions of a Waqf Tribunal that acts in lieu of a civil court under its jurisdiction. The Waqf Tribunals are deemed to be a civil court and required to exercise all the powers and functions exercised by a civil court under the Code of Civil Procedure, 1908. The decision of a Tribunal shall be final and binding on the parties. No suit or legal proceedings shall lie under any civil court which this act requires to be determined by a Tribunal. Thus, making the Waqf Tribunal decisions above any civil court.

Since the ownership of the property is transferred to Allah from the waqif in the case of Waqf, and property can not be taken back from Allah, once a property becomes Waqf, it will always stay Waqf.

As seen in the case of Bengaluru Eidgah ground, even though there was no title transfer to any Muslim organisation as per the government, Waqf’s claims that it was a Waqf property from the 1850s means that it is now forever a Waqf property.

The Gujarat Waqf Board had staked claim to the Surat Municipal Corporation building which is now the property of the Waqf because the documents were not updated. As per Waqf, back during the Mughal era, the Surat Municipal Corporation building was a sarai and used during the Hajj travels. The property then belonged to British Empire during British rule. However, when India got independence in 1947, the properties were then shifted to the government of India. However, since the documents were not updated, the SMC building then became Waqf property, and as Waqf Board says, once a Waqf, always a Waqf.

So, what now?

Let’s make it clear that Uniform Civil Code is required largely to bring Muslim personal law under the ambit of Constitutional morality, which it currently isn’t quite. UCC cannot be written off simply for the fear of losing cultural diversity and to caution against majoritarianism, which we all know is a superficial term in India used frequently by the left-liberal ecosystem.

The 21st Law Commission report says too much about Hindus laws which are very much in accordance with the Constitution. But it speaks rather carefully as it suggests how Muslim personal laws can be aligned even when in their application they are far removed from the very idea of equality and rights. The report could very well be a perfect recipe for the Opposition as it prepares its case against UCC in the Parliament.