Why Muslims Should Debate the UCC

Representation Image | Imtiyaz Shaikh - Anadolu Agency

There is a lot of apprehension amongst Muslims regarding the recently enacted Uniform Civil Code (UCC) in Uttarakhand. To some extent, this is understandable as it comes in the wake of an unlawful demolition of a madrasa in the state and subsequent police action, which fell at least four Muslims. And yes, this was not an exceptional incident. Such use of force was also seen in Delhi where a Muslim heritage structure was razed by the authorities. When ‘bulldozers’ are not active, there are rallies organized by right-wing Hindu mobs to threaten and maim Muslims in order to show their ‘real’ place in society. Amidst such a betrayal of democratic trust, it is only natural that Muslims will view the current UCC enacted in the state of Uttarakhand with a lot of suspicion.

But despite the gloom that surrounds Muslims today, they should at least debate the state UCC, for the simple reason that it might have some positives to offer. It is along expected lines that conservative organizations like the Jamiat Ulama e Hind would reject the UCC by calling it anti-Sharia and against the religious beliefs of Muslims. But the silence amongst the liberal and progressive Muslims on the issue is baffling, to say the least. Their silence only lends credibility to the right-wing claim that all Muslims think alike when it comes to religious issues; thereby erasing the boundary between orthodoxy and dissent within the community.

This is not to suggest the UCC in its current form is beyond criticism. Indeed, its most draconian provision is the directive to register live-in relationships which directly negates the right to privacy. As others have pointed out, this provision might lead to harassment of young couples by the police. However, this is a concern for all religious communities, especially the young people. In this article, I want to focus only on those aspects which will impact the Muslim community.

Among the provisions of the UCC that will directly impact Muslims are property rights, inheritance, divorce, child marriage, polygamy and halala. Let us see how changes in these practices will specifically affect Muslims.

Property rights: The UCC gives equal rights to men and women in the parental as well as ancestral property. As per the Sharia, women are only entitled to half the share of men.

Inheritance: Muslim spouses, sons and daughters are now equal inheritors of the deceased parents’ property. As per the Sharia law, a Muslim could only bequeath one-third of the property to whom he or she wished. According to the UCC, there is no limit and the parents are free to give property to children by executing a Will.

Divorce: As per the Sharia, only husbands have the right to divorce. The most that women can do is to ask for Khula which can be denied by the husband. The UCC empowers women to initiate divorce proceedings by accessing the courts, a right which has been available to women of other religious communities since decades.

Child marriage, polygamy and halala: The UCC has completely done away with these antediluvian practices. The Sharia, on the other hand, provided religious justification for all these practices. It argued that child marriage is Islamic as it is legitimated by the practice of the prophet himself. Clearly, their view run contrary to the recently enacted POCSO Act, which makes sex with a girl below 18 years of age as statutory rape. The UCC has made 18 and 21 as the minimum of age of marriage for girls and boys, respectively, thereby making child marriage illegal. This is not the place to get into statistical arguments over which community has the most child marriages. The fact is that child marriages exist within the Muslim community too and that has detrimental effects on the physiology and psychology of the child.

Similarly, polygamy and halala have been outlawed by the Uttarakhand UCC. Though it is known that Hindus have more polygamous unions as compared to Muslims, let us not forget that such unions have debilitating effects on Muslim women. Its eradication, therefore, should be welcomed first and foremost by women themselves. The UCC does away with the evil practice of nikah halala where a women must first marry another man and consummate the marriage, before she can return to the first husband. That such a degrading practice has been outlawed should be welcomed by all Muslims.

Timur Kuran, the historian of Muslim decline, through the story of Auqaf (sng. Waqf), tells us how this institution, instead of helping Muslims, became a millstone around their neck. The larger thesis of his work, The Long Divergence: How Islamic Law Held Back the Middle East, is that without a modern law, a progress and development are not possible. Clearly, the UCC promulgated in the state of Uttarakhand gives us an opportunity to at least debate the points which can become transformative for Muslim society. Its wholesale rejection is certainly unwarranted.

Any civilized society will find it hard to defend that it legally discriminates against women. The provisions of unequal property rights, no right of divorce, exploitative practice of halala, have made Muslims into the ‘other’, whose codes are different from the rest. This hampers integration but more importantly it robs half the Muslim population of human dignity and freedom.

Certainly, the law has come in a BJP-ruled state whose report card against Muslims leaves much to be desired. But then as Pratinav Anil shows in his book, Another India, the same can be said about other political parties. So, Muslims have to choose what benefits them, irrespective of the political dispensation in question.

If the Muslims are so averse to the BJP promulgating UCC, what has stopped them from reforming their personal laws. The conservatives have long argued that it cannot be reformed since the Sharia derives from the Quran and the Hadith. This is a bogus argument as all jurisprudential matters derive from human faculty rather than being sent by God. If Muslim jurists interpreted the Islamic code hundreds of years ago in a particular way, there is nothing wrong in re-interpreting them now. After all, such codes have periodically been revised in Muslim majority countries. The only countries which still operate on the medieval Sharia is perhaps India and Afghanistan. And that says a lot about Indian Muslims who despite living in a democracy since decades have not imbibed its spirit. They only seem to be reminded of the democracy and Constitution when their orthodoxy is threatened.

Some analysts have point out that by leaving the tribal communities outside its purview, the UCC is specifically designed to target the Muslim community. But there are reasons to keep tribes outside the UCC. Their remoteness makes sure that their customs and traditions do not impinge upon either the rural or the urban society. Moreover, as Ramchandra Guha points out in his seminal essay, Adivasis, Naxalites and Indian Democracy, tribal communities generally treat their women much better than the caste Hindu or caste Muslim society. Moreover, these analysts forget that tribe is a religion neutral category which means that even Muslim tribes are exempt from the provisions of the UCC. The problem that gets overlooked is that UCC is especially relevant in situations of deep gender discrimination. As the above discussion lays bare, the Muslim society legally discriminates against women and, hence, the need for UCC.

One can certainly argue that such measures should not be imposed but should be an outcome of organic growth. The Left has made this argument since decades but it has no idea of the internal authority structure within the Muslim community. If reform was to happen in India, it would have happened long ago, when loads of Muslim countries were reforming their personal laws. The very fact that the conservative leadership always takes any talk of reform as an attack on religious freedom means that they have no interest in reforming the personal law. Indeed, most of them believe that it is perfect and it is this theological puritanism that inhibits them from seeing how much the society around them has changed. Thus, the only way to reform Muslim personal law seems to be an imposition, which is what the UCC is doing.

Arshad Alam is a Delhi based independent researcher and writer.



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