Introduction
Today, with a deepening of democratic processes, each caste
and community is becoming more conscious of its identity and today our polity
is mainly based on these identities. Politicians have been fighting elections
mainly on the basis of caste and communities and have thus aggravated the
feeling of identities. In Rajasthan, when Roop Kanwar committed Sati, the
Rajputs defended it as a matter of their identity. The Rajput youth stood with
swords to defend the memorial created there.
Democracy in a country like India, with its pluralist tradition
lasting over thousands of years cannot succeed without respecting pluralist
ethos. It is interesting to note that the west has discovered pluralism
recently after Second World War and hence call it post-modernist phenomenon.
But India
has known it even during the medieval ages.
Modernization has brought new problems though we have
begun to imitate the west yet we have failed to recognize the intractable
social structure; changes are embraced much more easily in the upper class
economic elite in stark contrast to the masses. This is much more so as far as
Muslims are concerned. This is much greater degree of poverty and illiteracy
among them compared to other communities. There is a very weak middle class
among them to advocate modernization and change. This is precisely why the
priestly class, which itself comes from the poor strata, has a much greater
hold over the community.
And yes, we have to find a solution to the problem of gender
discrimination in the given laws in all communities. How to go about it? This
is given raise to think about the framing of a common civil code. But when we
remember the issues like Rajput’s one as mentioned earlier, it is very
difficult in such a political atmosphere to think of enacting a Uniform Civil Code
(here-in-after referred to as ‘UCC’). The caste practices among Hindus are far
more important than any law of the country. Each caste has its own customs and
traditions, which supersede all laws of the country. In several parts of U.P.,
if any boy of lower caste marries a girl of upper caste, they are publicly
beheaded.
The reality in India is much more complex than
western societies, which have been totally secularized. The process of
secularization in India,
though not negligible, is yet far more slow and tortuous. And no law, however
ideal, can become acceptable if it alienates people and ignores social
realities. A law has to be socially rooted, in order to be acceptable.
What is a Civil Code?
The civil code is a set of laws governing the civil
matters of the citizens in the country relating to matters like marriage,
divorce, adoption, custody of children, inheritance, succession to property
etc.
The Common Civil Code if enacted will deal with the
personal laws of all religious communities relating to the above matters which
are all secular in character of Indian state and to enhance fraternity of unity
among citizens by providing them with a set of personal laws which incorporates
the basic values of humanism.
The Need for a Uniform Civil Code
The need for a UCC was felt
as soon as the constitution came into force. Even after 55 years, this
directive could not be implemented for reasons better known to all those
concerned with this directive. The UCC also aims to overcome the particularistic and often reactionary
aspects of personal laws of various religious communities. The objective thus
is also to bring a social reform and uplifting the status of women. The UCC is
eminently desirable in the interest of modernization of society and for a
common system of Justice for all.
The absence of UCC gives rise to piquant, unwarranted
and ugly situations. In the words of court: Marriage is the very foundation of
civilized society. The relation once formed, the law steps in and binds the
parties to various obligations and liabilities there under. Marriage is not an
institution in maintenance of which the public at large is deeply interested.
It is the foundation of the family and in turn of society without which no
civilization can exist. Till the time, we achieve the government uniform civil
code for all the citizens into second marriage while the first marriage is
subsisting to become a Muslim. Since monogamy is the law for Hindus and the
Muslim law permits as many as four wives in India, errand Hindu husband embraces
Islam to circumvent the provisions of the Hindu law and escape from penal
consequences.”
The
provisions of the Indian Constitution
Part III of the
constitution that is, Article 12 to Article 35 provides for fundamental rights,
which are enforceable by the High Courts of the various states and the Supreme
Court of India. Part IV of the constitution provides for socio-economic rights
styled as Directive Principles of state policy and are not enforceable by any
court of law. However, Article 37 clarifies that such directive principles “are nevertheless
fundamental in the governance of the country and it shall be the duty of the
state to apply these principles in making laws.”
Under
Part IV of the Constitution, Article 44, states that “the state shall endeavor
to enact a Uniform Civil Code for citizens throughout the country”. On the
other hand, under Part III of the Constitution, Article 25 provides”
Freedom of conscience and free profession, practice and propagation of
religion.” The tussle is mainly between these two articles.
The Supreme Court since
two decades has started a trend (which is now considered to be a well settled
law) that the Directive
Principles and Fundamental Rights ought to be harmoniously constituted, and
whenever possible fundamental Rights should be adjusted in their ambit
so as to give effect to the trend can manifestly be evinced in ABK Singh
v.Union of India[1],
followed by Woman Rao v. Union
of India[2]
and Griha Kalyan Kendra Worker’s Union v. Union of India[3].
It is the state, which is
charged with the duty of securing a UCC for the citizens of the country and
unquestionably, it has the legislative competence to do so.
Development so far in the domain of UCC
The Constitution of India came into force in 1950.
Since then, Article 44 has been gathering dust with no government at the centre
ever having any guts and wisdom to touch it. This tragic situation certainly
buries the spirit of the constitution a thousand fathoms deep.
Of course, article 44 was not
drafted without uproar and objections in the constituent assembly against the
making of UCC for the entire nation.[4]
Firstly, it would infringe the fundamental right to freedom of religion
enshrined in article 25 and secondly, it would be highly derogative to the
interests of the minorities. It is submitted that the first objection is highly
misconceived as the objective contained in article 44 in no way offends
religious freedom of faith and guarantee article under 25 sub clause (b) of
clause (2) provides an exception to the effect that any existing or future laws
providing for the social welfare and reform shall not be affected by the
operation of this article. As regards the second objection that the enactment
would be tyrannical to minorities, Shri K.M. Munshi a member of drafting committee
in the constituent assembly said that nowhere in the advised Muslim countries
the personal law of each minority has been recognized as a sacrosanct as to
prevent the enactment of a civil code.
Pundit
Jawaharlal Nehru, while defending the introduction of the Hindu Code Bill
instead of a UCC in parliament in 1954, said “I don’t think at the present
moments the time is ripe in India
for me to try to push is through”. It appears that even 51 years
thereafter, the rulers of the day are not willing to retrieve article 44 from
the cold storage where it is lying since 1949. The governments, which have come
and gone, have so far failed to make any effort towards unified personal law
for all Indians.
The
broad approach of the Judiciary can be well appreciated at this Juncture in the
development and discussion in the domain of UCC. A Constitution bench speaking through Justice
Y.V.Chandrachud in Mohd. Ahmed Khan
v. Shah Bano Begum[5]
observed:
”It is a matter of regret that article 44 of
our constitution has remained a dead letter… It provides that the state shall
endeavor to secure a uniform civil code for the citizens throughout the territory of India. There is no evidence of any
official activity for framing a uniform civil code for the country. A belief
seems to have gained ground that it is for the muslim community to take a lead
in the matter of reforms of their personal law. A common Civil Code will help
the cause of national integration by removing disparate loyalties to laws, which
have conflict ideologies. No community is likely to bell the cat by making
gratuitous concessions on this issue.”
The
Supreme Court has reiterated the same in the famous Sarla Mudgal Case[6]
of 1995. After this, on July 23, 2003,
the Hon’ble Supreme Court has suggested that parliament has to frame a common
civil code for the country as that would help the cause of national
integration. A three judge bench comprising the Chief Justice V.N. Khare,
Justice S.B. Sinha and Justice. A.R. Lakshmanan, made this suggestion while
declaring as unconstitutional section 118 of the Indian Succession Act, 1925
(ISA) on the ground that it was arbitrary, irrational and violated Article 14
of the constitution, which says that the state shall not deny to any person
equality before law or the equal protection of the laws within the territory of
India.
Under section 118 of the
ISA, applicable only to Christians, “No man having a nephew or niece or any
nearer relative shall have power to bequeath any property to religious or charitable
uses, except by a will executed not less than 12 months before his death and
deposited within six months from its execution I some place provided by law for
safe custody of the will of living persons.”
The bench was allowing a
writ petition from a Christian priest, John Vallamatton, challenging the
provision as it discriminated against Christians bequeathing their property for
charitable and religious purposes. Writing the main judgment, the Chief Justice
observed, “It is a matter of regret that article 44 of the constitution has not
been given effect to.”
But, the
reactions of many religious groups against the Supreme Court ruling on
implementation of UCC sank in a surprise. The All India Muslim Personal Law
Board (AIMPLB) has rejected outright the Supreme Court observations on
enforcement of a uniform civil code, saying such a law could not be imposed on
any particular religion.
Mohammed Rabe Hasan Nadwi, chairman of
the AIMPLB in the year 2003 said that it is the consistent stand of the AlMPLB
that a uniform civil code is not feasible in India, as no community would like
to lose the rights and privileges granted to it by its personal law based on
religion. Saiba Farooqui, general
secretary of the voluntary group national federation of Indian women, said, “The
court should have avoided such comments in the current situation of the
country.” Though she opposes the Muslim personal law, she feels it should
not be interfered with at present.
Arguments
‘For’ the enforcement of UCC
- The Common Civil Code will bring all the personal laws governing matters like marriage, divorce, adoption, inheritance, succession to property etc. under a single roof and creates a space for the practices of all communities in a just manner and integrates the values and ideals of humanism.
- The one common argument given by all the political parties highlighting their reluctance to implement the Uniform Civil Code is that implementing Article 44 violates the rights of Indians provided under Article 25 i.e., “Freedom of conscience and free profession, practice and propagation of religion.” The counter argument I would like to cite is present in the same Article 25 itself under Clause 2, where it is clearly indicated that this article shall not affect the operation of any existing law.
- With the non-implementation of Article 44 of the constitution, article 14 to 18 are being violated which provides for Right of equality and prohibition of discrimination on the grounds of sex and religion. Many personal laws relating to marriage, inheritance, guardianship, divorce, adoption and property relations in all communities are unjust – especially unjust to women.
- Ambiguity is created due to the presence of different laws governing a social institution such as marriage, particularly in the case of polygamy and divorce. Also, possibility of a separate law for Muslims under the Muslim Personal Law supporting child marriage based on Shariat.
- It creates an uneasy division on the basis of religion when certain people are given special status. When even the law of the land is not the same for all people in India, it becomes increasingly difficult to preach equality among the citizens.
- All laws including penal laws are applied to one and all in this country without any distinction as to religion, race, caste, creed, sex etc… The anomaly is that it is not so apropos of Muslim personal law. The matters vis-à-vis marriage, inheritance, divorce, Muslim personal law governs conversions etc. in Muslim religion. There is an urgent need to rectify this uneven and higgledy-piggledy situation so as to bring light in the lives if Muslim womenfolk in India. One country and one law shall be the lodestar.
- Much misapprehension prevails about bigamy in Islam. Ironically, Islamic countries like Syria, Tunisia, Morocco, Pakistan, Iran etc have codified the personal law where in the practice of polygamy has been either totally prohibited or severely curtailed to check the misuse and abuse of this obnoxious practice.
The tragedy is that a secular country like India is lagging
behind in according red carpet welcome to article 44.
Arguments
‘Against’ the enforcement of UCC
1. All
the personal civil codes have unjust laws pertaining to women and children.
These have to be changed, not on the principle of uniformity but on equality
and justice to the ignored and downtrodden. If all the communities can sit
together and remove the injustices in their personal laws, uniformity will
inevitably come about. What is now needed
is not a Uniform civil code, but a just civil code.
2. After
having a kind perusal at the Supreme Court’s observations, no matter how, good
intentioned the judges may be but such issues will only cause problems. It is true that women are
not getting Justice in Muslim personal law. But any such reform has to come
from within the Muslim women. Law is not the solution. In such a hostile
situation, Muslims would not be ready to accept a uniform code.
3. Muslims are educationally
and economically backward. If the government is really concerned about the
equality then they should work on these fields rather than touching the
emotional issue of Uniform Civil Code and also it depends on the government’s
urge to implement it.
4. The
foremost argument of AIMPLB is that, Sharia
(Islamic Law) is an integral part of Islam; implementation of Uniform Civil
Code would mean depriving Muslims and many communities from their personal laws
and fundamental right to religion. Sharia is a law made by god. Any human being
does not make it. Therefore, nobody has the right to intervene into it. Not
even the Muslims.
5. The
ideal of secularism cannot be achieved unless the right to religion and certain
conventions based on religion give a place of preference and permanence to the
directive contained in article 44 of the constitution. Therefore, it
is the utmost needs of the present times to achieve uniformity in social
relations, which would be the foundation on to build a unified, integrated and
the strongest democracy in the world. Then comes the glorious suggestion of
Supreme Court to enact a uniform civil code in order t`o strengthen the feeling
of oneness among all religious sects to preserve the unity and integrity of India.
6. Uniform
personal law is purely political – a communal weapon to chastise Muslims with
false argument that Hindus have a code, and to force Muslims to yield one.
Hindus did not codify the joint family property law, which entrusted power and
wealth to men. But, that is beside the point. Do we want a Uniform civil code
(really uniform personal laws) for its own political sake to give the BJP and
others a communal edge in politics or for genuine justice reasons?
Conclusion
The Indian constitution
envisages a secular state by guaranteeing religious freedom to all under the
umbrella of a religion free state.
This is apparent from an examination of articles 25 to 30. The religious
freedom is however subject to certain limitations. Similarly, though the state
is forbidden from propagating or promoting any religion, it can constitute a
general fund through taxation for the promotion and maintenance of all
religions, and to provide aid in suitable cases, without discrimination. These
provisions clearly indicate the great role played by religion in certain
aspects of our life. It is true that in bringing a common code for all
religions is no easy task for the legislature. Indian secularism has,
therefore, to develop the philosophy of coexistence. To achieve the philosophy
of coexistence the support of two powerful factors are necessary- a high degree
of tolerance by all religions sects and strict adherence by all concerned to
the principles of equality and nondiscrimination, which are the keystones of
our constitutional edifice.
The founding fathers placed
article 44 in the directive principles of state policy within through
fundamental in governance of the country do not lay the state under a positive
obligation enforceable either by legal or constitutional means. Moreover, the
language in which it is couched itself seems to express a hope rather than
issue a mandate. Nevertheless, the legislature is under no less an
obligation to achieve the most ideal goal set out by the article. These are no
more religious issues but rather social issues which are affecting the human
populace and relationships among them.
In pursuance of the goal of
secularism, the state must stop administering religion based personal laws. The researcher asserts that whether the lead
comes from majority community or not, the state must act. Every rational being
committed to secular principles accepts this view, as it is the duty of the
state to achieve national harmony through the implementation of the directive
enshrined under Part IV of the constitution.
Despite the progressive
judicial pronouncements and juristic opinions in favour of carrying out the
directive under article 44 of the constitution, parliament has done nothing to
achieve this noble ideal. At this juncture, Justice Kuldip singh’s candid observations deserve and demand to be accorded a red carpet
welcome. He stated:[7]
“The
traditional Hindu law – personal law of the Hindus – governing inheritance,
succession and marriage was given a go by as back 1955-56 by codifying the
same. There is no justification whatsoever in delaying indefinitely the
introduction of uniform personal law in the country. The learned judge proceeded further to observe that those who preferred
to remain in India after the partition, were aware of the fact that Indian
leaders did not believe in the two nation theory or three nation theory and
also that in Indian republic there would be only one nation – Indian nation and
no community could make a claim to be a separate entity on the basis of the
religion. Not only could a lawman, even a layman, appreciate this judgment.”
However, everything depends
upon the government’s urge to implement it. If the government makes it
compulsory that everybody will have to wear helmet while driving, then will it
ask Sikhs to take off their turbans? Or if the government legalizes the
abortion to control population growth, will the Christians accept it? Or if the
government legalizes killing of cows, will it not hurt Hindus? So, it has to be
dealt with carefully. Religion is a sentimental and sacred issue in India.
Government should listen to everybody before doing anything. It is high
time that the Government takes some concrete action in order to implement the
Uniform Civil Code rather than dilly-dallying around the issue for the sake of
short-term political gains. But nothing
can be done overnight. A slow, steady and a persuasive approach are necessary
because justice
delayed is justice denied but if justice is hurried, justice may be buried. No
matter, how arduous and long stand the task be, the legislature should leave no
stone unturned in achieving this constitutional ideal. But bringing uniform
legislation should not jeopardize the harmony of distribution of legislative
powers envisaged in VII schedule of the constitution.
REFERENCES
ARTICLES
1)
B.G. Verghese, Who is afraid of a Uniform
Civil Code? The Hindu (13/8/2003)
2)
Personal Laws and Common Sense, The Hindu (28/7/2003)
3)
Supreme court suggest framing of a common civil code, The Hindu (23/7/2003)
4)
Vir Sanghvi, Towards a Uniform Civil
Code, Sunday Hindustan
Times (10/8/2003)
5)
Do we need a uniform civil code? Hindustan Times (30/72003)
6)
A.G. Noorani, UCC: Keep the faith, Hindustan Times (28/7/2003)
7)
Babir K. Punj, Common chord – A Uniform
approach to the Law, Times of India (15/8/2003)
8)
BJP welcomes court suggestion on common civil code, The Hindu (24/7/2003)
9)
Who is for a Common Civil Code? Hindustan Times, (22/1/2004)
10)
Religious groups unhappy with SC’s remarks on UCC, Hindustan Times, (23/7/2003)
11)
J.Venkatesan, SC suggests framing of a Common Civil Code, The Hindu, (24/7/2003)
12)
Chandan Mitra, What if we had a Uniform
Civil Code, The pioneer (August, 2003)
13)
Rakesh Bhatnagar, The long wait for Uniform
Civil Code, Times of India, (March 4, 1997)
14)
Christopher Jaffrelot, Ambedkar and the Uniform
Civil Code, Ambedkar and
untouchability- analyzing and fighting Castes, Permanent Blach Publications
2004
15)
Ms. Ritu Raj, Uniform Civil Code and National Integration, Competition Success Review, November 2003
16)
V.R. Krishna Iyer, Unifying Persona Laws, The Hindu (8-7-2003)
17)
Rajeev Dhawan, Codifying Personal Laws, The Hindu (1-8-2003)
JOURNALS
1)
Too personal to be Uniform? Lawyer’s Collective, July 2003
2)
D. Sura Reddy, Article 44: Adead Letter? Journal of Indian Law Institute, 1996.
3)
Satyanarayana, Uniform Civil Code: A
myth? Cochin University Law review,
1986.
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