Safi Hyder for MuslimMirror.com
In no other period of time after Independence, the Indians had found themselves being polarized and divided over religious cultural and national issues as they find themselves today. The minorities, especially, the Muslims and Dalit communities are feeling a sense of isolation and insecurity which will ultimately affect economic growth and social welfare. One controversy after the other kept erupting in the nation after the right wing party was catapulted into power two years ago. Be it the issue of Amir Khan expressing his concerns or the ruckus in the JNU or Asaduddin Owaisi refusing to praise the nation using certain specific phrase or the killings and beatings in the name of Gai bachao andolan (saving cows from slaughter) or Dr. Zakir Naik’s preaching, the Muslim communities have been singled not only by the fundamental groups but also by the Indian media over which the clutches of the right wing and capitalist forces have gained stranglehold strength. Continuing with the tirade, the government is trying or hell bent now to force the Muslims to dispense with the Sharia insofar as their personal affairs are concerned. In the name of the Directive Principles of the State Policy of the Constitution which are like guidelines for ensuring economic and social welfare of the citizens, the Government is trying to draft and implement Uniform Civil Code (UCC) for the country. Effectively, that would mean the personal affairs of the Indians will be governed and subject to UCC and the provisions or rules of their respective personal laws or the hitherto civil codes will not be applied by the courts and other governmental agencies. Given the strength in the parliament and the State legislatures, in all probability, one could expect the UCC to stop all those practices which are found to be incompatible with the religious beliefs or practices of the majority.
It all started or might have been instigated October last year. Banking on the request by a two judge bench of the Supreme Court which called for setting up of a bench to examine gender discrimination, especially ‘arbitrary divorce’; the government and the ruling party allowed the issue to snowball into a greater controversy and brought into the limelight what they called or used the misnomer, ‘Triple Talaaq’. Although a total misnomer, the issue of uttering “Talaaq-Talaaq-Talaaq” at one time which is practiced by certain ignorant sections of Muslims enabled the forces averse to Islam and Muslims a ready tool to call for abolition of all personal laws and adoption of a Uniform Civil Code.
What could ultimately prove to be a formality in the times to come, the Law Commission of India has issued a questionnaire on October 7, 2016 inviting the Indian public to express their views on the issue of personal laws and UCC. A glance over the questionnaire reflects not only the utter haste in which the questionnaire was drafted, but more so, the insidious and sinister intention of the government. The partiality and lopsidedness of the Commission and the government is so evident and manifest that it will not take a genius to determine that the whole exercise is being undertaken to target Muslim Personal Law. Over eighty percent of the questions directly or indirectly relate to the provisions under Muslim Personal Law or the Sharia principles. Out of 16 questions in the questionnaire, 8 questions are directly related to the Muslim Personal Law and practices, whereas one question each relates to practices and customs of the Hindu and Christian communities respectively. The rest of the 6 questions, though, not direct, but indirectly affects or will affect the Muslim population. Most of the questions are just superfluous and are listed for the sake of asking. Undoubtedly, in the face of UCC or with the adoption of UCC, all of these questions will lose their value and significance totally.
The over-possessiveness of the government with religious issues is also evident from the fact that when there are many other important provisions or articles related to the Directive Principles of the State policy including the enactment of laws to stop concentration of wealth in the hands of a few; providing adequate means of livelihood for all men and women; equal pay for equal work for men and women; guarding children against exploitation; prohibiting production and sale of alcoholic drinks and other intoxicating products; which have never been touched nor discussed, what was the need to push the throttle on issues related to personal laws.
Unfortunately, the Muslim political leaders and religious leaders are failing pathetically in presenting their response with objectivity and are being buried in the labyrinth so shrewdly and skillfully created by the media and other vested interests. One wish that the flimsy ground or the precarious issue, namely, ‘Triple Talaaq’ that was cleverly blown out of proportion were to be beheaded by the Muslim leaders on spot to obliterate the subject once and for good. One also wish there were to be a one clear voice on the concept of ‘Triple Talaaq’ and the Muslim community unanimously asserted that it is just a misnomer and does not exist per se in the light of the right and proper teachings of noble Quran. In Chapter 2, Verse 229, the holy Quran prescribes that Talaaq is permissible twice and during the period of Idah (waiting period), the parties could hold together or part on equitable terms. The word ‘TWICE’ clearly indicates two different periods of time. One scholar had elaborated earlier to issue to prove his point and douse all doubts on the issue. If someone visits a friend twice and does not find him, it would mean he had visited his friend at two different times and not at one point in time. Besides, in Chapter 65 of holy Quran which is mostly devoted to the issue of Talaaq, indicating its importance and significance, it is stated that divorce is to be given in the prescribed period(S). The word ‘PERIODS’ used is plural which means divorce given at different times. The ruckus over women being separated instantly by the utterance of word Talaaq needs to be negated and argued by presenting the Quranic verses which stipulates at many places for waiting period for the sake of conciliation and allowing the parties the time to reconsider.
One also needs to understand and make others understand the issue from a logical or reasoning perspective. For the sake of argument, if we assume that the so-called ‘Triple Talaaq’ is practiced or exists in some communities and needs to be abolished legally, what results would that achieve for women? Would that mean that the couple could reunite after the first and second divorce as the so called utterance of Talaaq three times at one go would be considered legally void? After abolishing the practice legally, could the government or judiciary force the couple to reunite for the second time against their will since Talaaq pronounced three times at one go was not the final Talaaq after which the couple cannot be united? Definitely not, then, what is the purpose for creating brouhaha on the issue? In what way, would the abolition of so-called ‘Triple Talaaq give women any protection or equality?
The Commission has asked one very valid question related to infringement of fundamental rights of the citizens with the adoption of UCC. If the commission is genuinely interested in hearing the response with full objectivity to determine whether or not UCC is needed and if the respondents, regardless of which faith they follow or whatever personal law applies to them, provide their comments with fairness and honesty, the government will have to decide to shelve the idea. There is no doubt that imposition of UCC or making the individuals to dispense with the provisions in the scriptures or religious laws they follow would infringe upon their right to freedom of religion. This is the crux of the whole issue as why the communities have the right to protest. The fundamental rights enshrined in the constitution under Articles 25 to 28 not only grants right to profess, practice and propagate religion, but also grants rights to manage affairs in matter of religion. It will be futile to argue that the exceptions to these rights or the powers granted to the State to legislate laws enable the government to force the citizens to dispense with certain religious rights, duties and practices since those exceptions and powers are clear and they are related to public order, security and economic welfare, none of which would come into play as far as the Personal Laws or religious affairs of Mulsims are concerned. Needless to say, the fundamental rights stand above any other provision in the Indian Constitution including the Directive Principles of the State Policy. Again, there is no issue with the individuals accepting or embracing UCC or any other code, which is also their fundamental right. The Personal Laws have set different rules for organizing personal lives or managing religious affairs which revolve around the fundamental rights of the citizens. For instance, Islam allows married men to marry another woman. The UCC might or rather will stop such practice since it is not permitted in other religions. This amounts to infringement of person’s fundamental right. Ironically, if the UCC maintains this provision, then it would infringe upon the freedom of religion of those communities where such practice is not permitted. Similar will be the case with the issue of marriage between the first cousins which is permissible in Islam, but prohibited in many other religions. The Holy Quran stipulates in detail the manner in which the property is to be distributed upon the death of a person and it is a religious duty to observe those rules which will be violated in case UCC is imposed and hence would conflict with the freedom of right to practice religion.
As the individuals in each community have been managing their affairs in the light of their religions, social customs and cultures for decades without any problem and without affecting the rights of others and when such rights were enshrined as fundamental rights in the constitution, one fail to understand the need for imposition of UCC. As far the individuals who do not wish to have their affairs organized under any personal law or find the personal laws which apply to them not appropriate or right, they could always opt for UCC.