There is absolutely no case for enacting a uniform civil code. But there is an unanswerable case for abolition of the un-Islamic triple Talaq. Prime Minister Narendra Modi’s speech, at Mahoba in UP on October 24, professing profuse and unprecedented concern for “my Muslim sisters”, impressed none; UP goes to polls early in 2017.
For over half a century, the BJP, and the Jan Sangh before it, made the code a vital part of their election manifesto. In 1989, it was one of the three conditions that qualified its support to the National Front government. It has no issue on Article 371A on Nagaland which bars legislation by Parliament on “Naga Customary law and procedure” and “administration of civil and criminal justice” involving that law in Mizoram enjoys a similar “special status”.
Before Partition, Muslims were offered solemn pledges of respect for their personal law; by Gandhi on October 28, 1931, the Congress in October 1937 and by Nehru on April 6, 1937. Gandhi offered “protection by specific provisions” in the Constitution. Instead, Article 44 of the Constitution was enacted. “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Hence, the Muslims’ opposition. It is the lust for uniformity that alienates people. A small UK has two systems of criminal law. Scottish law recognises the plea of “not proven”, English law does not. There is no national bar; England has barristers, Scotland has advocates.
“National integration” is a red herring. Muslims are well integrated in Sri Lanka where they have their own personal law which a Supreme Court judge has praised. Quebec has its own legal system. Singapore and Israel accept Muslim personal law. Aharon Layish wrote a paper in July 1973 on “The Sharia in Israel”. The modern trend is for acceptance of diversity.
Sir Norman Anderson, an authority on Hindu and Muslim law, wrote, “It is the family law that has always represented the very heart of the Shariah for it is the part of the law that is regarded by Muslims as entering into the very warp and woof of their religion.” It has been “basic to Muslim society down the centuries”. A former vice-president of India and Law Minister, G.S. Pathak told the Lok Sabha, on May 17, 1966, that he appreciated that “personal laws are mixed up with religion” and that “we cannot coerce people to accept our views about their religion and customs”.
Justice Baharal Islam of the Gauhati High Court took the same view in 1978: “In my view the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family, the other from the husband’s. If the attempts fail, talaq may be effected.” Both judges were elevated to the Supreme Court.