After Triple Talaq Ban, Is UCC Next? Not Quite. UCC Cannot Be Done In One Leap

The Supreme Court verdict banning triple talaq in one sitting, also known as talaq-i-biddat, should merely be seen as enabler of a law to deter this practice. A report in The Times of India says that the government does not actually plan a new law to give legal backing to the verdict, but this will lead to more chaos and arbitrariness on how the delegitimisation of talaq-i-biddat will be implemented on the ground. There has to be a clear law spelling out the consequences for violation of the Supreme Court order banning this practice as unconstitutional. Or else all kind of other laws unrelated to divorce will be used to cover this lacuna.

If triple talaq in one sitting is illegal, a law should – at the very least – state that those violating this judgement will face penalties, including fines and imprisonment. Only then will it be a deterrent. The government cannot cop out just because the five-judge constitutional bench did the heavy lifting in this regard.

We need clear legislation since attempts will be made by the clergy and an entrenched patriarchy in the community to pretend that nothing has changed, especially since two other forms of divorce initiated by men, talaq ahsan and talaq hasan, which call for a 90-day cooling off period before divorce, remain legal.

On the other hand, attempts will be made by the Bharatiya Janata Party (BJP) to not only claim political credit for the triple talaq judgement, but to also dangle the possibility of a uniform civil code (UCC), more to rile the minority community than with any real intent to modernise our civil laws. The Law Commission is already looking at the UCC idea, and all minority communities are already wary of the idea. It is worth noting that the minority judgement in the triple talaq case said that personal laws have the same sanctity as fundamental rights. This is, of course, wrong, but one of the judges who backed the majority, Kurian Joseph, also gave personal laws importance.

If the BJP has any sense, it should use the moral victory it scored with Muslim women to bridge the divide with this minority community. It should seek to enable the community to start moving in the direction of a UCC, and not inflict a binary choice that is sure to rile and alienate them further.

In India, reforms tend to be incremental precisely because traditional communities take time to adjust to new realities. This means any move towards a UCC should be done incrementally, in stages. Politically, it may even be a good idea to not call it a UCC, and focus on some of its essential ingredients, and deliver laws piecemeal, a little bit at a time.

For example, the Supreme Court’s triple talaq judgement can be used to pass a law which makes registration or notification of other forms of talaq, and the registration of nikahs, compulsory. This could include the marriage contracts that are entered into through the nikahnama. A lot of skulduggery can be eliminated by making the terms of the contract clear and justiciable, so that both parties enter into it with open eyes. This way, tradition and personal law can be integrated into a modern system of civil law.

Another idea could be a change to the Special Marriages Act, which governs civil marriages, to allow any party, whether man or woman, to unilaterally register marriages held under Hindu, Christian or Muslim personal laws. This will allow women – Hindu, Muslim or Christian – to additionally obtain the protection of this act, which is gender neutral and progressive. Ideally, at a later stage, all marriages conducted under any personal law should be automatically covered by the Special Marriages Act.

What this will do is achieve a uniform civil code on marriages through incremental reform, reform that does not alienate a community or stigmatise its practices. Property, inheritance and cultural practices may still remain outside the UCC, but that can be done again in stages.

More specifically, given the backdrop of the triple talaq judgement, the government should encourage Muslim community leaders, especially moderates and progressive elements, to create their own internal safeguards to implement the judgement, and also codify equality into other forms of talaq which are still legal. One thing the National Democratic Alliance government should abandon is to seek the backing of the same cleric which made secularism a joke. It should be firmly on the side of moderate and secular forces within the Muslim community, and this can happen only if it ensures that its own Hindu fringe is reined in.

UCC is the ultimate goal, but it can never happen as long as it does not have widespread community support. The way to achieve it is to creep towards the ideal, and not try to achieve it in one leap. In a multi-speed society, what one section wants to achieve in one shot will be opposed tooth and nail by another.

A UCC achieved by steady and incremental consent is the best course available to Narendra Modi and his government.