Narinder Mohan, Marila Latif
Chandigarh, December 3
First the Centre repealed Article 370 of the Indian Constitution in J&K and then construction of Ram Temple. The move comes in the form of fulfilment of BJP’s long-standing promises of ‘Integrating the nation’.
These issues were also there in the BJP’s 2014 and 2019 manifesto, which in any case are fulfilled by them. After the formation of Modi government 2.o, now the eyes are on their other promises on which they are also working.
The promise on which the government has continued to work is to implement ‘Uniform Civil Code’. If we look at the BJP’s 2019 manifesto, on Page 42, ‘Uniform Civil Code’ comes in the end, also in 2014 manifesto and this promise was at the end. The issue of civil rights is also directly associated with population control, which Muslims believe have an anti-Muslim agenda.
In his second term, Modi government, which is seen rapidly completing the agenda of the ‘Sangh’, the Population Control Act is becoming the first priority now. The association, which has been a champion for small families since the beginning, has been very vocal about the Population Control Act. Last year, a proposal has been passed in the All India Executive Board of the Union to redistribute the Population Policy and apply the policy equally to all.
RSS chief Mohan Bhagwat has already given his clear views on making new policy for population control on many occasions. RSS considers the growing population to be a major impediment to the development and sovereignty of the nation. There are also some major signs of early implementation of the ‘Common Conduct Code’.
In the speech from the ramparts of the Red Fort on August 15, Prime Minister Narendra Modi had said that we are having a population explosion, it is creating crisis for the coming generations, but also one has to believe that there is a conscious class in the country. And who understands this well, keeping his family as a committee, is showing patriotism in a way. PM had emphasized on small family for population control.
So in the month of September, the issue of Uniform Civil Code came into the discussion once again by a comment of the Supreme Court. The Supreme Court had said in a decision that no attempt has been made so far to implement the Uniform Civil Code for all citizens of the country. A bench of Justice Deepak Gupta and Anirudh said in its judgment that Goa is a shining example of the Indian state in which the Uniform Civil Code is applicable, irrespective of all religions, except for limited rights.
The ‘Population Regulation Bill, 2019’ was introduced in the Rajya Sabha during the Session of Parliament in July this year. That calls punitive action against people with more than two living children and making them devoid of all government services, in which such people will be given less interest on bank deposits, charge more interest on loans, public distribution system (PDS) There were things like excluding, depriving them of any kind of election.
The private members bill introduced by the Member of Parliament Rakesh Sinha proposed disqualification from being an elected representative, denial of financial benefits and reduction in benefits under the Public Distribution System (PDS) for people having more than two children. The bill also suggests that government employees should give an undertaking that they will not procreate more than two children.
The issue of the Uniform Civil Code emerged into the India’s political discourse mainly because many Muslim women, affected adversely by the personal laws, have begun knocking on the doors of the Supreme Court to uphold their fundamental rights to equality and liberty in keeping with constitutional provisions. The Union law ministry has recently asked the law commission to examine the matters in relation to the implementation of the uniform civil code but Indian Muslims can consider it as a major issue after the overlapping controversies over beef, saffronization of school and college curriculum, love jihad, Ayodhya verdict, Triple Talaq or Two children Policy.
The Uniform Civil Code (UCC) proposes to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen.
The constitution has a provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Whereas Article 25 of the Indian Constitution states that every individual is “equally entitled to freedom of conscience” and has the right “to profess, practice and prop agate religion” of one’s choice. Practicing religion or the act of propagating it should not, however, affect the “public order, morality and health” that completely contradicts with the Uniform civil code as India is a diverse country with different religions, whose laws challenge the policies of UCC.
On the other hand, Indians Muslims are already governed by the Muslim Shariat Law in India. The Muslim Personal Law (Shariat) Application Act was passed in 1937 to formulate an Islamic law code for Indian Muslims that means the writings in the Quran would be of foremost importance and all problems within the community will be solved according to Sharia. Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute the State shall not interfere.
Shah Bano case in SC:
Mohammad Ahmed Khan vs. Shah Bano Begum known as Shah Bano Case; In this case in 1985, Shah Bano moved to Supreme Court for seeking maintenance under section 125 (This section provides for maintenance not only to the wife but also to child and parents if husband gives divorce to her wife) of the Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance.
The Supreme Court gave verdict in favour of Shah Bano by applying section 125 of Indian Criminal Code and it is applied to all citizens irrespective of religion. Then Chief Justice, Y.V Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. And so, the court directed Parliament to frame a UCC.
On the other hand Rajiv Gandhi Government was not satisfied from the court decision; instead of supporting it the government enacted the Muslim Women (Protection of Rights on Divorce) Act, (As per the Act, a divorced Muslim woman is entitled to reasonable and fair provision and maintenance from her former husband, and this should be paid within the period of iddah) 1986 to nullify the Supreme Court judgement in Shah Bano Case and let the Muslim Personal Law prevails in divorce matter. In this act it was mentioned that Muslim woman has right for maintenance only for three months after the divorce i.e. iddat and then shifted her maintenance to her relatives or Wakf Board.
Understanding Triple Talaq:
Triple Talaq is a divorce system in Islam, most of the times misunderstood it with instant divorce which is no where mentioned in Quran and Hadiths and that’s why most of the Muslim countirs like Iran, Turkey and Pakistan have already banned the practice of Instant divorce. While Triple Tlaaq is actually a system where a husband gives divorce to her wife in subsequent three months, but a majority of Indian Muslims guise the system and misrepresents it with instant divorce where a husband speaks Talaq three times over phone, message or verbal, indeed an incorrect way according to Islam.
Dr Latif Al Kindi General Secretary of Jamiat Ahli Hadees told TPE that according to the Triple Talaq system, a husband can give divorce to her wife thrice in three months then only the divorce is executed but if they came close after one month of first talaq or the wife was pregnant for the second month, the first and second talaq is broken.
“Therefore, due to the lack of religious awareness, such Indians Muslims knock out the door of supreme court,” he said.
There have been many cases in which Muslim men in India have divorced their wives by issuing the so-called triple talaq by letter, telephone and, increasingly, by text message, WhatsApp and Skype. A number of these cases made their way to the courts as women contested the custom.
However, on 31st July this year, India’s parliament approved a bill outlawing the right of a Muslim man to instantly divorce his wife which also drew accusations of government interference in a community matter by many extremists across India.
Muslim women can enter mosque 5 times a day:
Another myth tamed by Indian Muslim community is that women are cannot pray inside mosque which is not true. According to the Quran and Hadiths Prophet Muhammad PBUH clearly says allow Muslim women to pray inside mosques in a manner that no stranger fascinates with them.
Two-Child Policy on Indian Muslims:
According to Islam, a husband or wife does not hold any right to kill their baby as strictly propagates to have children as many as one can. This puritanical guideline again contradicts with two-child policy which bars people with more than two children from contesting elections and government jobs.
Assam Cabinet has decided that those with more than two children will be ineligible for government jobs from 2021 and other states with similar norms including Rajasthan, Andra Pradesh, Telengana, Madhya Pradesh, Gujrat, Maharatsra, Uttrakhand, Odisha and Karnataka.
Andhra Pradesh and Telangana: In 1994, the Panchayati Raj Act prohibited a person from contesting elections only because he had more than two children.
Maharashtra: People who have more than two children have been banned from contesting elections for Gram Panchayat and Municipality. According to the Maharashtra Civil Services Rules of 2005, such a person cannot get any position in the state government. Such women are also evicted from the benefits of public distribution system.
Rajasthan: Like Assam, in Rajasthan too, it is a rule that if someone has more than two children, then he is considered ineligible for a government job. According to the Rajasthan Panchayati Act 1994, a person with more than two children is allowed to contest elections only if one of his two children is disabled.
Gujarat: The Local Authorities Act was changed in 2005. At that time PM Modi was the Chief Minister of Gujarat. It was made a rule that a person with more than two children will not be allowed to contest elections for panchayats and municipal elections.
Madhya Pradesh and Chhattisgarh: Here in 2001, under the ‘Two Child Policy’, there was a ban on fighting government jobs and local elections. In 2005, both the states reversed the decision before the election, as a complaint was received that it was not applicable in the assembly and LokSabha elections. However, the two-child policy is still applicable in government jobs and judicial services.
Odisha: Those with more than two children are not allowed to contest urban local body elections.
Bihar: Here too, there is a two-child policy, but only limited to municipal elections.
Uttarakhand: Like Bihar, Uttarakhand has a two-child policy, but here too, the municipality is limited to elections only.
Goa has its own Civil Code. It is based on the Portuguese Civil Code 1867. It was implemented in Goa in 1870. Later some changes were also made. The Goa Civil Code has special provisions for people of every religion. It is different from the Hindu Civil Code. Even after Goa was merged with India in 1961, it was allowed to remain in the same format. In 1981, the Government of India set up a Personal Law Committee to explore the possibility of removing this code and enforcing its own Non-Uniform Law. The Goa Muslim Sharia Organization supported it, but the Muslim Youth Welfare Association and women’s organizations strongly opposed it.
In Goa, there have been repeated questions about the applicable Code of Conduct that the law applicable in Goa is a foreign law, but in September this year, a case in the Supreme Court, the question arouse that the right of the residents of Goa was the Portuguese Civil Code, 1867, be governed by the Indian Succession Act, 1925. The bench of Justices Deepak Gupta and Justice Anirudh Bose said in its judgment that the inheritance and right of property attached to the property of a Goasi living anywhere in the country will be governed by the Portuguese Civil Code, 1867.
The top court also looked into the question whether the Portuguese Civil Code could be called a foreign law. These laws do not apply unless recognized by the Government of India and the Portuguese Civil Code is a law of the Indian Parliament because of which it is applied in Goa.
Even though, Portuguese law is foreign-born, but he remains part of the Indian laws and the essence is that it is the law. Goa is the territory of India, all the people of Goa are citizens of India.
Law Commission says-
– While the Law Commission had asked some questions related to the Uniform Civil Code in 2016, a draft was also submitted to the Law Commission by some eminent citizens of the country last year.
– It was discussed that the rules to be made on issues related to private matters should be universally accepted and do not violate human rights.
Therefore, the Law Commission has stated its stand that a unified nation does not necessarily require equality but rather, we should try to resolve our differences with unquestioned arguments on human rights.
– The Commission believes that the difference in private laws is not a discrimination, but a strong democracy.
-The term secularism has meaning only when it assures the expression of any kind of difference. The Commission has clearly stated that both religious and regional diversity cannot be reduced to the noise of majority.
– The Commission suggested that instead of implementing the Uniform Civil Code, all private legal procedures need to be codified.
-After codifying the laws, to some extent one can reach the principles of the world which prefer to implement equality rather than uniform code.
-In view of homosexual equality, the Commission has suggested that 18 years of age should be fixed as the minimum standard for marriage of boys and girls so that they can marry at an equal age.
Population of states is more than the countries
If you look at the data of National Family Health Survey i.e. NFHS 2015-16, the population has reached around 2.4 per woman. This number is 2.1 among Hindus and 2.6 in Muslim community. If we look at the figures of 1992-93, then it was found that there was an average of 3.8 children per woman. That is, in about 30 years, this number has decreased by about 1.4. The difference between number of children born in Hindu and Muslim communities has decreased. Both the communities have given attention to family planning and have contributed in controlling the population. In 1992-93 this gap was the highest at 33.6 per cent, which has come down to 23.8 per cent in about 30 years.
India is the second largest country in the world in terms of population. About 16.35 percent of the world’s population lives in India. According to the 2011 census, India has a population of 121 crores. The population of each state of India is equal to or more than many big countries of the world like India’s largest state Uttar Pradesh’s population is equal to Brazil, West Bengal’s population to Egypt, and Rajasthan’s population is equal to Turkey’s. Data from the World Bank and the Census Department website of India have revealed this.
UP- 19,98,12,341–Brazil- 20,05,17,580.
West Bengal- 9,12,76,116– Misar-8,37,87,630.
Karnataka- 6,10,95,297——United Kingdom-6,32,58,920.
Gujarat- 6,04,39,692——Italy- 5,93,79,450.
Kerala- 3,34,06,061—–Morocco- 3,25,31,960.
Meghalya- 26,66,889———-Mangolia- 27, 59,070.
Arunachal Pradesh- 13, 83,727—Mauritius- 12, 62,605
Scope of Uniform Civil Code in India:
There are practical difficulties due to the blooming diversity in India. It is practically impossible to come up with a common and uniform set of rules for personal issues like marriage due to tremendous cultural diversity India across the religions, sects, castes, states etc.
The sensitivity of Uniform Civil Code would be perceived as the encroachment on religious freedom as many communities; particularly minority communities have already affirmed Uniform Civil Code as an encroachment on their rights to religious freedom.
They fear that a common code will neglect their traditions and impose rules which will be mainly dictated and influenced by the majority religious communities.
It can also been seen as the Interference of state in the personal matters. The constitution provides for the right to freedom of religion of one’s choice, its propogations and professes to do things according to one’s religion. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.
This story was published in the December issue of TPE Mag.