July 25, 2003

TOWARDS A COMMON CIVIL CODE
POLITICISING THE ISSUE IS THE REAL DANGER

New Delhi : “It is a matter of regret that …Pariament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies,” objerved the Chief Justice of India in a recent judgement. But such suggestions of framing of a common civil code are not a new thing as it was evident even in the present judgement which referred to the Article 44 of the Constitution of India. The Question is what prevented our parliamentarians to enact such a law ?

The objection or the obstruction to it is not merely political, as the BJP or other pro-Hindutva parties are now trying to make us believe while welcoming the recent suggestions of the Supreme Court, but it has some deep religious, social and cultural apprehensions of the minority communities not only of the Muslims but also Christians, Buddhists, Jains, Sikhs, Parsis, Jews, Anglo Indian communities, Scheduled Castes and Scheduled Tribes of our country. It was clearly expressed even in the Constituent Assembly debates on Uniform Civil Code.

There was a lac of consensus on this issue, and therefore, it was placed under Directive Principles of the Constitution of India. The Article 44 declares, “ The State shall endeavour to secure for the citizens a Uniform Covil Code throughout the territory of India.” The country was slowly moving toward its realisation through various legislations and rulings of the High Courts and the Supreme Courts who struck down many sections of the Personal Laws , which were codified keeping in mind both the ground realities and our national goal of creating a Uniform Civil Code. However, suddenly in the mid 1980s Shah Bano case got prominence due to political reasons, and the Rajiv Gandhi government at the Centre got an amendment passed for the section 125 of the Criminal Procedure Code nullifying the judgement of the Supreme Court. It was considered by many as failure of justice, and even students of law is many universities were being asked in their examinations to discuss this incident as “failure of justice.”

Since then it became a major political issue in our country. The BJP got it in its agenda, and its leaders invariably asked : if the Muslims could not obey the Supreme Court decision in the Shah Bano case , why should we agree to the court decision on Ram Mandir at Ayodhya? ( Babri Masjid was demolished many years after that in 1992.) Thus they got two of the most controversial political issues to agitate the Hindu mind : Ram Mandir at Ayodhya ; and Uniform Civil Code. It became major tools against Muslim appeasement and Muslim bashing and it earned remarkable dividend the BJP. It came to power but only after giving up the issues for the moment and followed NDA agenda but only overtly. Barring the BJP and the Shiv Sena, no other political party wanted to pursue the national dream of a Uniform Civil Code mainly because of political fears. Unfortunately, this national dream has been given such a political twist for the last 15 years or so, the initiative or the slow process towards fulfilment of the dream itself halted. It is in this backdrop, Supreme Court's decision to strike down the law discriminating against Christians is a welcome development and it is one step towards the Uniform Civil Code.

However, there is a danger of politicising the suggestion of the Supreme Court to frame a Uniform Civil Code . The Nation is in the midst of a highly communal atmosphere, thanks to the fraction of the Indian populace who are highly communal. They come from all sorts of religions - Hindu, Muslim, Christian, et al. If the Hindutva forces again pick up the issue of Uniform Civil Code to polarise the electorate on religious ground , there is a fear of second halt of the process towards the Uniform Civil Code.

It would not help us to deny the fact that India, inch by inch, has been progressing towards a Uniform Civil Code. And sooner or later, we would have it if we do not try to obstruct the natural growth of the mindset of all the communities both the majority and the minorities. Debates in the Constituent Assembly were eye opener.

Dr. Ambedkar had suggested about the optional implementation of the Uniform Civil Code, envisaged under Article 44. According to him , the Parliament by way of making a beginning, should make a provision that the code shall apply only to those, who make a declaration, that they are prepared to be governed by it, so that , in the initial stages , the application, of the uniform law , should be purely voluntary, as was done, at the time of the passing of the Muslim Personal Law (Shariat) Application Act , 1937.

Thus we have already seen some improvement even within Muslims as Ambedkar himself put it as example. If we follow this process, it is certain to deter obscurantists from inflaming the religious communities on the one hand , and alleging that a Civil Code is being thrust down the throats of unwilling minorities on the other. However, the pro-Hindutva forces are behaving in such a way that irritates the minorities which helps them to polarise the Hindu votes in their favour. It is self-defeating in the long run.

If we trace the development of law and the societies in India, we can find many laws enacted even during the British rule which governed family relationships irrespective of the religions. The Special Marriage Act 1872, Indian Minority Act 1875, the Guardians& Wards Act 1890, Indian Succession Act 1925, and the Child Marriage Restraint Act 1929 are few of them.

If the enlightened members of the Hindu community did not come forward, neither the Sati Regulation of 1829 nor the Hindu Widow's Remarriage Act would have been passed. Caste Disabilities Removal Act was passed long back in 1850, and the Hindu Gainful Employment Act was passed in 1930.

Minorities were not far behind. Muslim Personal Law (Shariat) Application Act of 1937, Shariat Act of 1937, Dissolution of Muslim Marriage Act of 1939, Parsi Marriage & Divorce Act 1936, Indian Christians Marriage Act of 1872, Native Convents Marriage Dissolution act of 1866, and Indian Divorce Act of 1869 also paved the way for reformation among Muslims , Parsis, and Christians.

The idea of a Uniform Civil Code thus came with the Independence of India, so that there should be a law to govern the people irrespective of their religion, especially to protect the suffering women and children, and to protect the fundamental rights of people on the ground of equality before law. It idea was mooted first in the Constituent Assembly in 1947.

Due to lac of consensus, the Sub Committee on Fundamental Rights had included Uniform Civil Code as one of the Directive Principles of State Policy. Clause 39 of the draft read “ The state shall endeavour to secure for the citizens Uniform Civil Code.” Debating the draft the committee recommended that the clause should be drafted to make it clear that while a Uniform Civil Code for all citizens was highly desirable, its application should be made on an entirely voluntary basis. The three members of the sub committee Mr Minoo Masani ( a Parsi), Hansa Mehta (a Hindu) and Amrit Kaur( a Christian from the royal house of Patiala) recorded their dessent and said , “ One of the factors that has kept India back from advancing to nationhood has been the existence of the Personal Laws based on religion which keep the nation divided into watertight compartments in many aspects of life. … We, therefore, suggest that the Advisory Committee might transfer the Clause regarding Uniform Civil Code from Part II to Part I after making suitable modifications in it.”

However, the representatives of the Muslim Community opposed even though it was only amongst the Directive Principles. They wanted a categorical provision that “nothing in this article shall affect the personal laws of a citizen.” One other suggested amendment was “ Provided that the personal law of any community which has been guaranteed by the state shall not be changed except with the previous approval of the community ascertained in such a manner that the Union Legislature may determine by law.”

Replying to one of the argument Dr Ambedkar said that he was surprised by the argument that India was too vast a country to have one law. This is precisely what we did have. We had a Uniform Criminal Code, Uniform Property Act, practically a Uniform Civil Code in all matters save those of Marriage and Succession.

At the time when we have achieved such a level of uniformity, much was left to be done in the future. There were discrepancies even among the various sub-groups who were following the same religion. By then we had had an experience of trying to make the different religious sub-groups under one umbrella of Personal Laws. The Muslim Personal Law is an example, under which all the Muslim sub-groups were brought. Before the Shariat Act of 1937, Khojas and Cutchi memons were being following the Hindu Laws of Succession. The Shariat law did not apply to North-West Frontier Provinces. It followed the Hindu Law for Succession and other matters so much so that in 1939, the Central Legislature had to abrogate the application of Hindu law to the Muslims and applied Shariat Law to them. The same was true of Muslims in various parts of United Provinces, Central Provinces and Bombay where Muslims were largely governed by the Hindu Law for Succession. In North Malabar, Marumakkathayam, a matriarchal law of succession applied to Hindus and Muslims both.

So we had seen the codification of a Muslim Personal Laws which can be applied to all the Muslims irrespective of their different traditions in various parts of the country. When the Muslim Personal Law came in 1937, all the Muslim communities were not ready to accept it. Therefore, a provision was made in the Shariat Law itself that it should be applied to Musalmans provided a Musalman who wanted that he should be bound by the Shariat Act shoul go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors.

The same process of codifying a Uniform Hindu Law was carried on after independence so that the same law could be applicable to all Hindus irrespective of their tradition in different sub-groups. Dr Ambedkar was in favour of a Comprehensive Uniform Hindu Law, but Dr Rajendra Prasad , the President of India was opposed to it. Therefore, even a Uniform and Comprehensive Hindu Law could not be framed. That is why the process succeeded only in piecemeal basis. Hindu Marriage Act , Hindu Adoption and Maintenance Act, Hindu Minority and Guardians Act and the Hindu Succession Act had to be enacted separated during 1955 - 56.

There ends the matter. No other personal law was codified until 1986 when the Muslim women ( Protection of Rights on Divorce) Act was passed by the Rajiv Gandhi Government which was perceived as an action for appeasement of the Muslims for votes.

In the meantime, the High Courts and the Supreme Court of India, through various rulings struk down some of the provisions of the Personal Laws and made them more progressive and in accordance with the spirit of the Constitution of India. The process, albeit slowly, inching forward towards a Uniform Civil Code.

But the politics prevents us to realize this national dream of a Uniform Civil Code in a fast pace. It is dangerous. The Uniform Civil Code would be beneficial for the women and children of the minorities, but how can they believe the riotous proponents for this law who kill their women and children during communal riots. Inner religious uniformity has been achieved after a long battle by codifying the Personal Laws, and Inter religious uniformity of law has already been achieved in almost all the laws except in marriage and succession, and it could also be achieved in totality in due course, but not right now when the nation is pregnant with communalism. (EOM)