Waiting for a turning point: Supreme Court's triple talaq judgment sets the country on path leading to uniform civil code

Last month's historical and path breaker verdict by a Supreme Court Constitution Bench, banning instant ‘triple talaq' divorce system by Muslim men to their wives, is a game changer for the Indian republic and Indian politics and the very idea of secular and democratic India. That is notwithstanding the judgment being a shy, split verdict. It is a big surprise that India has supporters of personal laws and triple talaq at the highest level.


It is very clear now that all are not happy with this judgment and some even underestimate the parallel with the landmark Shah Bano judgment of 1985, which was made null and void by the then Congress, headed by Late Rajiv Gandhi government,  under the pressure of mullahs. But this time makes no mistake and a big no to communal politics, this is a game changer. For starters, far removed from Shah Bano, this was overturned by an act of parliament and making the mockery of secularism. 


As a matter of fact, it has already revived debate on the need of a secular uniform civil code (UCC), one of the most important but unfulfilled ‘directive principles' of India's Constitution that would replace the existing separate, communal and personal laws for Hindus, Muslims, Parsis and Christians. Of late, these minority personal laws have become notorious like Khap laws. These personal laws make Indian secular democracy a fake secularism.


It took seven decades to ban and declare unlawful a minor and very repressive divorcing method. It speaks volumes about Indian secularism, the concept of equality and Indian justice. Those who opposed alteration triple talaq had apprehension that, foreseeing it would make way for a UCC. One fails to understand, what is wrong with a secular Uniform Civil Code.


The most critical part of this debate, of course, is that many supporters of triple talaq and personal laws had habitually included not just conformist and fanatic Muslims and communal leaders, but also so called "secular" politicians, activists, intellectuals, academics, legal luminaries, journalists, comrades etc. who day out and day in swear by secularism, equality and women's right. But here it seems that their sermons are only for Hindus.


On the one hand, the Constitution of India assures and guarantees equal rights to all citizens but the special provisions to minorities make Indian secularism and equality irrelevant and fake. It was always at odds with the concept of a modern, civilized and secular democracy.  The Constitution makers did not keep in mind the repression by




 the Mughal and colonial rulers and again threw the nation in another the turmoil with these communal provisions. They failed to understand the plight of majority community for hundreds of years by Muslims and Christians. They could not implement the universal and equal rights of all citizens in modern, secular and democratic India.


Now for Indian Muslims, role models are conservative theocracies like the Kingdom of Saudi Arabia, which is very ruthless to the public practice of religions other than its state version of Islam, Quranic and Sharia Laws etc. Now, Indian nation, Indian Constitution, Indian justice system, Indian Parliament etc. are secondary to Islam, the Quran, Sharia etc.


The centre of that gamut is illustrated by the former Ottoman Empire, theocratic but comparatively moderate but Indian law makers failed to note that its occupation of Constantinople in 1453 was very atrocious, with massacres, plunder, enslavement and brutal conversion to Islam of the non-Muslim population.


The Ottomans' ‘Millet' structure of justice system permitted every religious group their own laws. But this was only in law books. This empowered a kind of nationhood where the Muslim ruling class kept hold of its dominance but, in enlightened self-interest, pretended to protect non-Muslim minorities by allowing their rights as groups.


The constitution and standard of the countries like the UK, US, France and Germany were the other measures of the nationhood. They were marching towards liberal and open-minded democracies and they distributed with both constitutional rights and civil liberties for the majority community, as well as rights for minority groups, but the rights of all the individual citizens were given the highest importance.


But, India has a different history and background where minority rulers were repressing majority community before independence. In the disturbances before nation's Independence, the idea that the constitution makers could wish to be a modern democratic nation was not accepted by the Muslims which resulted in the two-nation theory, the idea of Pakistan, and division of India.


However, our Constitution makers were the staunch supporter of a modern, secular democracy, and were against a theocratic Hindu nation. But in their concern to appease the remaining minorities, they failed to make a truly modern, democratic, liberal and tolerant version of secularism.


Despite all this past experience, the constitution makers twisted out the secular principles in the directive principles and decided to continue with existing colonial era separate personal laws. After that hardly any reform took place during the last seven decades. Only cosmetic laws against dowry and domestic violence, Hindu personal laws, and the not obligatory Special Marriage Act, all failed to reflect the modern, secular and multicultural sensibilities. Most of the reforms were directed only towards Hindu community.


But despite the claim of a strong and treasured democracy, our nation had medieval kind of laws and practices like triple talaq, halala, polygamy, mutha, Sharia and Quranic laws, gentile mutilation, circumcision, burqa, hijab, madrasa and church education, etc a hard slap on our secularism and multiculturalism. Here, individual rights have no importance but the laws of a sect or a religion have more value.


Moreover, these personal laws have been a big hindrance to hold together a fractured nation during its early dawn as a republic; the original foundation is severely disturbing in the long run. As it again, reinforces the two-nation theory. Separate personal laws for every religious faction in a modern-secular democracy can be acceptable only if the majority cannot give equal rights to the minorities. Here, in India, only majority community is secular, liberal and tolerant.


In fact, that is specifically what supporters of UCC argue, whether openly or hidden in phrases. They cite so many examples over the past 70 years, including recent Triple Talaq-Halala-Polygamy, to emphasize that India needs and "ready" for UCC.


But in veracity, regardless of its lots of troubles, India has established to be a firm democracy where such shocks are not the exception, but the norm. But, an institution, like the judiciary and Election Commission continue to encourage assurance, as in the SC's landmark judgment on ‘Triple Talaq' recently, making triple talaq irrelevant, although two judges were in favour of triple talaq. 


The opposition of UCC, itself challenges the idea of India and her Constitution which supports UCC. And unquestionably it does harm to both our hard won democracy as well as to those who are a victim of the cruelty personal laws.


Baring the Muslim clerics, the chiefly encouraging responses to the triple talaq judgment confirm, that nation does not support clerics and personal laws. The nation is governed by the Constitution, by the Parliament and by the Supreme Court, and not by the standing of personal laws.


The judgment has very clearly defined religious personal law is illegal and unconstitutional and paves the way to a complete secularism. Without Uniform Civil Code, Indian secularism is a big farce.


Some fringe element those are with secular and left parties are creating a bogey of "Hindu Pakistan" if UCC is implemented. Without UCC we will a mirror illustration of that theocratic nation like Pakistan, this is a mirror image we should be ashamed of.