By Nageshwar Patnaik in Bhubaneswar, August 2, 2019: The Narendra Modi government finally got the Muslim Women (Protection of Rights of Marriage) Bill, 2019, commonly known as the Triple Talaq Bill, cleared by Rajya Sabha on Tuesday to end instant divorce – a practice prevalent among some Muslims in India. BJP’s floor managers ensured a 99-84 victory for the NDA in the Upper House.

Undoubtedly, abolition of instant Triple Talaq will not only uphold the principles of gender justice, women’s dignity and equality but also hopefully will set the stage for the formulation of Uniform Civil Code (UCC) – a top agenda for the BJP over the years.

The right wing party’s manifesto for the 2019 Lok Sabha polls says, “BJP believes that there cannot be gender equality till such time India adopts a UCC, which protects the rights of all women, and the BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonizing them with the modern times.”

Prime Minister Modi to-day is in a commanding position to push UCC in line with his government’s successful move in the first tenure for “One Nation, One Tax”. The Modi government is working hard for “One Nation, One Election”, “One Nation, One Grid” et al.

But the biggest challenge before Modi is to push through UCC as promised by his party in the 2019 polls. Indeed, the top court of the country had time and again directed the past governments to frame UCC in the interest of national integration.

In 2003, the Supreme Court had asked the then central government to bring in a UCC to reduce contradictions based on ideologies among different communities. While there is a common criminal code for criminal cases, civil disputes related to marriage and inheritance are settled by personal laws of different religious communities.

A Supreme Court bench led by the then Chief Justice of India V N Khare had said that Article 44 of the Directive Principles in the Constitution was based on the premise that there was no necessary connection between religious and personal law in a civilised society.

Article 44 says the “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.” The objective of this endeavour should be to address the discrimination against vulnerable groups and harmonise diverse cultural practices. Since these principles are not legally enforceable, a suitable law is long overdue and the moot question is whether Modi will take the lead to bring a UCC to ensure “One Nation, One Law”.

In the past, several attempts have been made to draw up a UCC to manage issues such as marriage, divorce, inheritance and succession. But such attempts were strongly opposed by minority groups who feared that a single code would run roughshod over their personal laws.

The fact that personal laws run subservient to the Constitution, had, in any case, been decided way back in 1996, in the divorce battle between Molly Joseph and George Sebastian. Again in 1997, Justice Kehar and Justice Chandrachud disposing of a Public Interest Litigation (PIL) by Catholic advocate Clarence Pais, who wanted divorce granted by ‘Church Courts’ to be held legally valid, had dismissed the plea reaffirming the 1996 verdict.

The Apex Court had made it clear that personal laws have no place in a democratic society if such laws interfere with the basic tenets of the Indian Constitution, or relevant Parliamentary legislations contained therein. It is by now clear personal laws run subservient to the Constitution.

And yet no government had made serious attempt to come up with UCC largely due to vote bank politics. Nevertheless, Uniform civil code is one of the three basic agenda of the BJP — removal of Article 370 from Jammu and Kashmir and construction of Ram temple in Ayodhya being the other two.

The Modi government will have to clarify its stand sooner than later. On May 31 the day Modi government was sworn in for second time, notice was issued to the Centre and the Law Commission on a petition by BJP leader Ashwini Upadhyay, who has sought Delhi High Court’s direction to the Modi government for setting up a judicial commission for drafting uniform civil code.

Upadhyay has pleaded for direction to the Law Commission to come out with a draft UCC within three months which should be circulated for public comments before it is finalised. He said that attempts to cobble together such a code based on best practices elsewhere in Muslim countries would ensure gender justice and also unite the country.

The case has reopened the Pandora’s Box on the issue once again, In 2017, the Supreme Court missed an opportunity to decide on the issue in 2017 when it outlawed triple talaq without addressing the core issue: whether personal law practices should prevail over the fundamental rights of life, dignity and non-discrimination. The Constitution Bench’s judgment was the product of an October 2015 decision of a two-judge Bench of the court to take suo motu cognisance of the discriminatory practices against Muslim women. This Bench pointed out that it had been 30 years since the court, in the Shah Bano case, urged the government to frame a common code to “help in the cause of national integration.”

But UCC is something unlikely for the BJP government to pursue in the near future because such a law would also rip to shreds Hindu patriarchal institutions, reopen the debate on property rights, and question the fairness of the Hindu United Family, an entity that exists despite discriminating in favour of Hindus against other communities.

A sustained movement by like-minded citizens, rights groups, organisations can perhaps prop up the Modi government to bring UCC to usher a new era of “One Nation, One Law” without diluting the country’s religious diversity.

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