One for all?

Every now and then the bogey of a uniform civil code (UCC) is raised. The government in office says this is constitutionally recommended/required and they are just doing what is necessary. But a UCC means that individual religions will all have to follow the same laws. This is the case in many western countries. But these countries were predominantly Christian and shared a common language and culture. None of them was or is as diverse as India.

Many believe the UCC is an attempt to target the Muslims, especially the practice of polygamy (they are permitted four wives at a time) and divorce by uttering the world talaq three times. Polygamy was the norm in all communities in times prior. In India before the advent of the British, Parsis and other religious groups permitted multiple wives. It was only in 1865 with the introduction of the Parsi Marriage and Divorce Act that men were restricted to one wife. This legislation was introduced at the initiative of the community, not the government.

Writing on the introduction of the Act, Sorabjee Shapoorjee Bengalee, secretary, the Parsi Law Association traced the legislation’s origins to August 20, 1855 after a public meeting of the Parsi inhabitants of Bombay "held at Seth Cowasjee Byramjee (Banaji) fire temple when, amongst other united decisions, the following resolution was unanimously agreed to: ‘that this meeting is deeply impressed with the necessity of procuring for the Parsi community the enactment of laws adapted to that tribe such as may be recognized, obeyed, and enforced by the local authorities and courts of justice.’

"The reader who is at all conversant with these subjects will observe in the Parsi Marriage and Divorce Act of 1865 that defined grounds of divorce and dissolution of marriage are chiefly taken from (the Matrimonial Causes Act, 1857 of UK.) In times to come the Parsis may, with proper pride, point to the fact, that of all purely Asiatic communities they were the first, as they are still the only people, who have voluntarily imposed on themselves a law declaring bigamy a criminal offence and punishable as such after the manner of the English law. On similar grounds they may claim honor as the first of oriental people who, by legally defining her individual marital rights, have raised woman to a definitively higher social position on the basis of her own personal claims as a reasonable and responsible being." (The Davar-Beaman judgment 43 years later relegated women to a lower social position.)

Parsis were blessed with many social reformers who fought for equality for women not only in the community but for other religious groups as well. Behram Malbari championed reforms amongst the Hindus. In time, that zest for reform lessened among Parsis and reforms took place at a greater pace in other communities.

While legislation is sometimes required to bring about essential and life-saving reforms such as the Bengal Sati Regulation, 1829 act, most change has to be based on consensus, if it is to be meaningful and acceptable.

When Prime Minister Indira Gandhi’s government wanted to introduce a bill to permit adoption, it was the Muslims and Parsis who opposed the social legislation. The Muslims stated adoption was not permitted in Islam while the Parsis were fearful of a child born of a non-Parsi father entering their fire temples, availing of trust benefits or being consigned to the Towers of Silence. These benefits are denied to even the children of Parsi mothers wed to non-Parsis. So who would welcome a child born of two non-Parsi parents? The Parsis wanted to preserve their race, even if that meant couples who could not find a Parsi child to adopt had to remain childless.

The community is electorally insignificant. Numerically by themselves they cannot even elect a municipal corporator, leave aside a member of parliament. The Bharatiya Janata Party (BJP) can safely ignore opposition from Parsis. But Prime Minister Narendra Modi always cites the community as a role model for other minorities. From the perspective of image, the BJP will have to do a rethink on adoption in the UCC. But can the government pick and choose what is to be uniform and what not?

The Parsi Marriage and Divorce Act would have to be struck down or modified to fit in with the model laws. No more would the jury system and the matrimonial court that has sessions in the Bombay High Court be permissible. Other things would also change but unless one sees the draft legislation, one cannot gauge the full implications of the bill.

Writing in thehindu.com, Jawaharlal Nehru University professor of political thought Nivedita Menon quoted feminist legal activist Flavia Agnes to the effect that the "UCC would require the abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to Hindus." Would any government, especially a Hindutva leaning one, dare to abolish this privilege?

Currently Hindu and Muslim women are fighting for their rights, moving the courts, demonstrating on the streets. Even the misogynist trustees of the Haji Ali Dargah have now permitted women entry to the sanctum sanctorum. The matter is before the Supreme Court. Parsi women, in contrast, appear resigned to their fate.

Today much of the world, including the West, is subjected to random acts of terror. But India with its multicultural, multi religious population, with the second largest Muslim population in the world, has remained relatively calm. Kashmir may still continue to fester but in other parts of the country conflagrations between communities currently are sporadic and incident based. The horrors of partition, the Sikh massacre, the Babri Masjid demoliton, the Godhra carnage all remain among the darkest chapters in the country’s history, but these are more the exception than the norm. India is largely a tolerant country, one that permitted a handful of Zoroastrian traders from Iran to follow their religion and customs, set up shop and thrive beyond anyone’s expectations.

There is no doubt a UCC can be a progressive piece of legislation that would in particular remove inherent biases, especially against women. But some communities who feel they are being targeted now may resort to extra-constitutional means of expressing their opposition, resulting in violence.

The present central government and the Prime Minister have endeavored long and hard to set the country on the path to economic growth. Any knee jerk action such as enforcing a UCC could reverse the process. Peace is fragile and ephemeral. One cannot, and should not, take it for granted.