By Adv. Sharfuddin Ahamad,
Uniform Civil Code is the proposal to replace the personal laws based on scriptures and customs of religious communities in India with a common set governing every citizen. There was a debate for a UCC in colonial period in India. British to their understanding of religious division in India separated this space for various communities, Hindus, Muslims, Christians and later Parsis. The Queen’s 1859 proclamation promised absolute noninterference in religious matters. The personal laws involved inheritance, succession, marriages and religious ceremonies.
By holding general election in 1946, Central Constituent Assembly, predecessor to the Parliament was constituted, which debated every issue tooth and nail on the basis of provisions of Act 1935 and also looked into models of various Constitutions of other countries and thereafter finally shaped our present Constitution. The Constitution framers were mostly freedom fighters and had a deep insight into the ground realities and social intricacies of our country. They preferred a Parliamentary over the Presidential form of government to ensure adequate representation to various small sections of Indian society in the governance of the country. The India is made of a number of regions, religions, races, cultures & tribes. So not unitary, but federal system was adopted making a clear division of powers and jurisdiction between the central & the State governments to keep and strengthen the unity in the diversities.
- Constitutional Background
Actually the Hindu Code Bill was only a continuing effort in furtherance of enactments made by British who has unlike Muslim, started reformations to relieve the women and Shudras from very pathetic and unfortunate conditions prevalent in Indian social system of Hindus, mainly of them may be quoted as starting from Regulating Act in 1773, and then, 1795 conferring equal rights of property to Shudras. In 1804 infant girls killing was prohibited. In 1813 all the persons including lower castes were given the right to education and slavery was finally banned. In 1917 all the castes of Hindus were made equal subject to the same punishment. In 1819, brides of Shudras were freed from first 3 nights with Brahmins. In 1830, human sacrifice was banned. In 1831, all the discrimination on the basis of castes and color in the government services was made illegal. In 1835, the first son of the Shudras to ‘Gangadan’ was banned in 1835, Shudras were granted right to sit on the chair. In the 1829, Sati ritual was banned (burning alive of widows) and also Devdasi tradition was banned, similarly another custom was also banned wherein birth of a child from the Devdasi and Brahmin priest shall not be named ‘Harijan’. In 1863, Charak Puja under which Shudras were put alive in the foundation raising big buildings. 1928 Begari tradition was banned, in 1935 equal rights and identities of marginalized sections were confirmed which became foundation for the democratic Constitution as the number of reforms were applied to democratize the Hindu society by the British rulers.
The Constitution makers made a specific provision in Art-13 that laws inconsistent with or in derogation of fundamental rights shall be void. In old social order, the worth or status of every person was predetermined in accordance with his/her birth. In contrast, the Constitution throughout persisted for the equality before the law and equal protection of life and personal liberty of the people. In Part-III, fundamental rights were enshrined including special arrangements for minorities as the right to freedom of conscience and free profession, practice and propagation of religion (Art. 25) Freedom to manage religious affairs (Art. 26) Freedom from payment of any tax on the basis of religion (Art. 27) Freedom from attendance of religious instruction or religious worship in educational institutions maintained by State funds (Art. 28) Protection of linguistics and religious minorities (Art. 29) and also rights of minorities to establish and administer educational institutions. So in view of above noted provisions in the Constitution, fundamental rights may not be diluted or taken away including the rights conferred on minorities in India, inclusive of rights of religious practices.
There were some issues on which unanimity could not be reached in the Central Constituent Assembly but on the strong insistence of certain members some issues were put into Part-IV under the head “Directive Principles of State Policy, from Art-38 to Art-51, but before these Articles a provision in Art-37 was clearly made that the provisions contained in this Part shall not be enforceable by any court making clear difference from the provisions contained in Part-III of the Constitution of India.
The issues in Part-IV in respective importance were chronically put as follows:
It is horrific that all the governments have been ignoring most of the issues of the greater importance, made as directive principles but have picked and chosen only Art-44 purely for political purposes as suitable to their politics time to time. Even courts have neither suo-moto nor in Public Interest Litigation ensured that government may follow the directive principles enacted in the interest of common person of the counrty affecting the lives of huge majority of the people and needed urgent actions from the governments.
- Present Controversy
In October 2015, the controversy took a new turn when Supreme Court expressed a need for UCC and also had ordered a suo-moto, separate PIL be filed so as to look into the cases of Muslim women facing general discrimination. Jamiat Ulama e hind submitted before the Supreme Court that Muslim PersonalLaw is derived from the Quran. Based on this argument, the Jamiat said that Mohammedan laws cannot be treated as within the purview of what it described as “laws in force”. After the Jamiat, the All India Muslim Personal Law Board (AIMPLB) also took up the case. Both the Jamiat and AIMPLB contended that Muslim Personal Laws are an integral part of religion. They also asserted that following personal laws are a Constitutional right – the freedom to follow and propagate religion as enshrined in Article 25 of the Constitution. The UCC is mentioned in Article 44, which is a directive principle and therefore, its enforcing is not mandatory.
The AIMPLB and some other outfits opposed the Law Commission’s questionnaire on UCC, including abolition of ‘triple talaq’ and announced their boycott of the move, accusing the government of waging a “War” against the community.
The Law Commission of India published a questionnaire, with an appeal made by Justice BS Chauhan, who heads the panel, talks about a “comprehensive exercise of the revision and reform of family laws”. In it, he also outlined the objective of the questionnaire, which is “address discrimination against various groups and harmonies various cultural practices”. Chauhan ends by saying that the questionnaire was prepared to elicit views from the public so that family law reforms can be introduced in ” the most integrative manner” so as it does not “compromise the diversity and the plurality that constitutes the core of India’s social fabric”
Odds against the Uniform Civil Code (UCC)
The provisions of the Constitution of India have been violated in letter and spirit from the start when presidential order 1950 was passed on religious discrimination providing reservation to Dalits excluding Muslims & Christians on religious groundand also when the construction of Somnath Mandir was funded by the public exchequer and inauguration of the temple was made by the then President of India Rajendra Prasad. Our Constitution was amended to grant funds to Devaswom (Hindu temples and Shrines) in Kerala and Tamil Nadu by the state governments using public money, from the consolidated funds which is absolutely against the secular sprit of our Constitution.
In view of the fiercest opposition by the upper caste members of Central Constituent Assembly led by Dr. Rajendra Prasad and Sardar Vallabh Bhai Patel, the UCC could not be accepted but on the insistence of Pandit Jawahar Lal Nehru, it was put as one of directive principles in Part-IV of the Constitution of India. It seems that Nehru himself did not believe in feasibility of UCC so he in spite of common family laws which were already in practice in the country, got enacted Hindu Code Bill in the year 1956 separately as the Hindu Marriage Act., Hindu Succession Act., Hindu Minority and Guardianship Act. and Hindu Adoption and Maintenance Act. Thus, Nehru himself changed his earlier position and disfavored the idea of common family laws.
It is matter to be taken note of whether the exemptions in income tax provided to Hindu Undivided Family/Hindu Joint Family be withdrawn to make common tax laws for all the communities of India.
Sikhs and Buddhists objected to the wording of Article 25 which terms them as Hindus with personal laws being applied to them. However, the same Article also guarantees the right of members of the Sikh faith to bear a ‘kirpan’.
Amnesty International’s India Chief Aakar Patel sees the move to ban triple talaq, or even a debate on the UCC, only as a sign of assertive Hindutva under Modi. Writers in the Economic and Political Weekly and liberal JNU professors agree with Patel, this is not about gender justice, this is an attempt to “discipline Muslims”.
There are a large number of personal laws and customary laws in the country for various tribes, castes and communities and according to ex. law minister Veerappa Moily there are about 200 personal laws in practice in India. In view of ground realities of the country, he said common civil law is not workable so is now the stand of Congress Party.
There are different ideological footings between the Muslim marriage and others as the Muslim marriage is social contract while a Hindu marriage is sacrosanct which is holy, eternal and permanent and according to faith it could not be broken so separation in marriage is foreign concept to the Hindu marriage. A large number of laws were introduced to improve it so divorce is also brought into the Hindu law.
The issue of gender parity is generally raised regarding Muslim women but surveys conducted by agencies and authorities exposed that Muslim women are more empowered in comparison of other communities. There are other issues regarding the general women to be addressed by the government but a problem of tripple talaq has artificially being made a national issue while the divorce rate among Muslim women is comparatively minimum at 0.3% only and minuscule minority is effected by triple Talaq.
The general attitude has been formed as that Hindu Laws are reformed and Muslim Law is anti-women but neutral lawyer Miss Flavia Agnes says “In terms of economic rights, the Muslim marriage-as-contract works out better for women, in terms of dower and traditional maintenance. Even with polygamy, the multiple wives have legal and social rights.” She points out that the Hindu woman in a non-marital domestic partnership is utterly without recourse- in 2010 the Supreme Court ruled that maintenance under the Domestic Violence Act did not cover such cohabiting couples, even referring to them as “concubines”.
It is a fact that by the effects of Criminal Procedure Code, the administration of criminal justice is common and so is the effect of Civil Procedure Code all the civil matters that dealt under a common lawand this jurisdiction is being expanded by adding new laws, as Juvenile Justice Act now making adoption equally applicable to Muslims also, Domestic Violence Act and its protections applying to all citizens and even Special Marriage Act, a way of opting out of Personal laws. Only the laws governing the families are different according to respective religions, cultures, castes and tribes. Feminist scholar Nivedita Menon says that codification of Hindu law, in the image of north Indian upper castes, actually hurt certain women ending matriliny and other practices that women gained from. Similarly, practices like ‘mehr’ are unique to Muslim women and they actually stand to lose from a civil code that doesn’t accommodate it. Which is why, she says, much of the women’s movement has abandoned the demand for a flattening UCC, likely to be shaped by dominant norms. Instead of standardization, they press for principles like gender justice and individual autonomy within diverse personal laws.
On one hand India is being converted from secular to theocratic State by the decisions and programs of the govt. Khap panchayats are tolerated to reject the State’s authority even in criminal and civil laws. Raj Thakrey and Shiv Sena openly declared and acted against the orders of the Supreme Court,as they celebrated the ‘Govinda Handi’,in the name of keeping of their traditions, in spite of the orders of the Supreme Court putting restrictions.While there is emerging intolerance for the Muslim Personal Law (Shariyat) Application Act 1937, the dissolution of Muslim Marriage Act 1939 and Muslim women (Protection of rights of divorce) Acts and rules 1986, with a view to trample the distinct religious and cultural practices of Muslims against the spirit of the Constitution of India.
The author is senior advocate at Allahabad High Court and vice president of Social Democratic Party of India.