15 July 2016 9:58 AM GMT
Dust and din again started surfacing with the Ruling Party’s resolution to go ahead with framing of Uniform Civil Code. Sceptics would see the attempt as a ‘plank formation exercise’ for the coming elections to the Legislative Assembly of Uttar Pradesh. Hoping to ride on this juggernaut, the Bharathiya Janatha Party is making it as its main poll issue. In fact, the deliberations...
Dust and din again started surfacing with the Ruling Party’s resolution to go ahead with framing of Uniform Civil Code. Sceptics would see the attempt as a ‘plank formation exercise’ for the coming elections to the Legislative Assembly of Uttar Pradesh. Hoping to ride on this juggernaut, the Bharathiya Janatha Party is making it as its main poll issue. In fact, the deliberations over Uniform Civil Code are often triggered not by political parties. The observations of Courts as well keep the issue stay afloat in the political discourse of the country. Serious discussions followed across the country with the Supreme Court’s comment on Uniform Civil Code in the year 1985 in the Shahbano case.
Indian nationalism is founded on the tag line ‘Unity in Diversity’. The warp and weft of our secular fabric is the harmonious existence of a multitude of religions, languages, cultures and ethos. It is quite natural that the imposition of a Civil Code would be dubbed as an invasion on personal laws of citizen when personal law has its roots in religion and religious practices. Any attempt of unification of personal laws of various religious groups under the penumbra of Uniform Civil Code can have the potential of volcanic eruptions in the social and political arena of India. The exercise of codification would be a laborious one given its proclivity to poke into religious freedom guaranteed by Article 25 of the Constitution of India.
The genesis of Uniform Civil Code suggests it as a subterfuge designed by Brahmanical Hinduism opposed to Hindu Code. With the assumption of administration of India by British Parliament by the Government of India Act 1858, the Hindu fundamentalists could perceive a systemic interference with the personal laws of Hindus by the British. Starting from the passing of Hindu Widow Remarriage Act and ending with the 20th Century Act of Hindu Women’s (Right to Property) Act, 1937 the upper caste Hindus and religious zealots found the attempts as unilateral Legislative interference with the personal laws of Hindus. The legislative recognition of personal laws of Muslims by Muslim Personal Law (Shariat Application) Act, 1937 further fomented the feeling of ‘selective onslaught’. When the Hindu Code was mooted in early forties, Hindu obstinacy came to the fore with all vehemence. It is disheartening to be informed that Dr. Rajendra Prasad and Sardar Vallabai Patel were in the vanguard of opposition to Hindu Code. When the Hindu Code, providing for fundamental reforms like women’s absolute right to property and right of divorce and remarriage, was being debated across the country, the Hindu fundamentalists engineered devices for its defeat. Not alone the personal laws of Hindus but of all be unified and common civil code would be the panacea for all social maladies was the argument of Hindu fundamentalists of that era. Uniform Civil Code thus came into being serendipitously as an instrument for scuttling reforms in Hindu Personal Law.
With freedom in the offing, the Constitution Draft Committee was formed. Sub committees were framed for in depth deliberations on various subjects. In the sub-committee for Fundamental Rights, idea of Common Civil Code was mooted. The seed was brought from Section 94 of the Canadian Constitution which made provisions for formation of a uniform set of civil laws and procedural laws in that country. The insistence by some of the members to the likes of K.M. Mushi, M.R. Masani, Hansa Mehta and Raja Kumari Amrut Kaur for inclusion of the idea of Uniform Civil Code as fundamental rights was more a fanatic appeal against the Muslim Community than a rational desire of the citizens as a whole. The trauma left by the gory partition made some otherwise sober Hindu leaders to be vindictive against the Muslim Community. A veiled attempt to invade on the personal laws of Muslims in the garb of a Uniform Civil Code became their minimum programme. The Sub Committee rejected the proposal for making Uniform Civil Code as Fundamental Right. It appears that as a consolation to the Hindu fundamentalism, the Sub Committee agreed on principle to include it as one of the Directive Principles of State Policy. Fortunately, by then the framers of the Constitution contrived a device to include controversial and practically unenforceable subjects under the caption ‘Directive Principles of State Policy’ – thanks to Irish Constitution.
The passing of Hindu Code and Constituent Assembly Debates were affairs going on contemporaneously. B.N. Rau, the Adviser to the Constitution Draft Committee and Dr. Ambedkar were facing stiff resistance from Brahminical hierarchy for their determination in piloting Hindu Code. In the Constituent Assembly, when Article 35 (precursor to the present Article 44) aiming at Uniform Civil Code was taken up, Mohamed Ismail Sahib from Bengal mooted an amendment for including a proviso to save personal laws from the sweep of Civil Code. Another member of the Constituent Assembly Nazruddin Ahemad from Madras attempted an amendment providing for consent of legislatively approved religious bodies as a precondition for interfering with personal laws. The fulminating speeches of K.M. Munshi and Alladi Krishnaswamy Ayyar opposing the amendments convey the general Hindu psyche prevalent against Muslim communities after partition. ‘Majoritarianism’ and ‘isolationism’ were the prominent features of deliberations on Uniform Civil Code. In a conciliatory vein, Dr. Ambedkar conveyed the conscience of the country to the Constituent Assembly that Uniform Civil Code would not be imposed up on citizens but would be an optional piece of legislation. Ambedkar’s own words worth quoting : “My second observation is to give them an assurance. I quite realise their feelings in the matter, but I think they have read rather too much into article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussulmans who wanted that he should be bound by the Shariat Act should 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. It would be perfectly possible for parliament to introduce a provision of that sort; so that the fear which my friends have expressed here will be altogether nullified. I therefore submit that there is no substance in these amendments and I oppose them.” (emphasis supplied) Thus amendments were defeated on assurance by Ambedkar and resultantly ‘endeavour for securing Civil Code’ was enlisted as ‘Directive Principles of State Policy’ under Article 44 of the Constitution.
After the first General Elections in 1950, Pandit Nehru took the task of piloting Hindu Code (Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act, 1956 and Hindu Minority and Guardianship Act, 1956). Probably this was the first occasion when a confrontation between Cabinet and President came to light in the independent India. History would tell that President, Dr. Rajendra Prasad, was opposed to Hindu Code and he took the Government for ransom. His brinkmanship went to the extent of demanding an opportunity to address Parliament expressing his dissent over many of the provisions of Hindu Code. The events preceding and following the passing of Hindu Code and its inextricable connection with the idea of Civil Code would indicate that the latter was a measure of blockade put up by fundamentalist Hindus to sabotage the passing of Hindu Code. They desperately hoped that slogan of Civil Code could deter the determined Hindu reformists from passing Hindu Code.
How far Uniform Civil Code is practical? If it is a pragmatic idea, why it was included only in the Directive Principles of State Policy? Certain noble ideals of governance, which are for the time being not enforceable for lack of social and economic infrastructure, are enlisted as ‘Directive Principles of State Policy’ to guide the State in its administration. With the inclusion of Uniform Civil Code under Directive Principles, the framers of the Constitution intended it to be a goal to be secured after building up an ambience of social reformation through assimilation of civilized principles of personal laws in domestic relations. With 69 years passed after independence, none can say that the citizenry of India has matured into a homogeneous lot to adopt personal laws with uniform features.
There are saner and sober aspects for personal laws of each community. Under the Muslim Personal Law, a Muslim can make a gift of only 1/3rd of his property to non-descendants. The logic is founded on the principle against disinheritance of natural heirs. Will Hindus accept this principle of Muslim Law when they enjoy absolute right for disposal to anyone of their choice which in some cases result in completely disinheriting lineal descendants? When some sections of Hindus enjoy the freedom to marry from prohibited degrees of relationship, would they be prepared to abandon that liberty? Can the Muslim community be compelled by Uniform Civil Code to forego overnight the anachronistic and archaic practices of ‘Triple Talaq’ and polygamy without undertaking the exercise of purgation of their social mores? Only social reforms in these volatile areas can facilitate the concerned communities to internalise the newer and civilised ethos of personal laws. An institutionalisation of personal laws in a uniform script of civil code would be pragmatic only when the civil society imbibes in their heart and soul the values to be codified. Any attempt of Legislative aggrandisement would prove to be counterproductive.
A tendency to trench upon the legislative federalism can also be the result of the making of a Uniform Civil Code. Conscious of the prevalence of cultural pluralism the framers of Constitution enlisted personal laws as a Concurrent Subject in Schedule VII of the Constitution as Entry 5. Leeway was given for State Legislatures to make laws for institutionalisation of local and customary practices in personal relations which are found rationally acceptable and regionally adaptable. A Uniform Civil Code, if formed by the Union Government, may often lead to confrontations between States and Union over legislative competence and technicalities of prior consent of President. Irreconcilability may also develop in the realm of Constitutional Law in the interpretation of Article 25 of the Constitution guaranteeing religious rights vis-a-vis the Uniform Civil Code.
A Uniform Civil Code, if made, must be essentially uniform in its features. How far we would be able to frame a Civil Code for the whole country in near uniformity with minimal exceptions given our cultural diversity so diverse and expansive? How will we harmoniously marshal this plenitude of cultures without causing atleast an abrasion on religious freedom, leave alone an infringement? Even a small State like, Goa where a Uniform Civil Code exists cannot conscientiously say that it has a Uniform Civil Code in the true sense. The most civilised aspect of Goa Code is the recognition of joint ownership of spouses in property acquired before and after marriage. But instances of exceptions in the Goa Civil Code depending on practices of communities like permitting bigamy to Hindus under certain peculiar circumstances are too curious features to digest.
Instead of vociferously demanding for Uniform Civil Code, the Ruling Party can opt for a Secular Civil Code. The reformed aspects of civil law on personal relations can be codified in to one book under the caption ‘Secular Civil Code’ leaving liberty to citizens for adopting it as their personal law. If Legislation in that direction is endeavoured, the assurance given by Dr. Ambedkar in the Constituent Assembly would be honoured in its letter and spirit and thus fears of minority community can be allayed. Alternatively, the Special Marriage Act can be amended to include various aspects of personal law to be applied to persons opting for secular marriage under the Act. Special Marriage Act in its present form binds persons married under the Act to be governed by its provisions relating to dissolution of marriage, maintenance, and inheritance. In the matter of inheritance, Section 21 of Special Marriage Act enjoins that Rules of inheritance to the property of persons married under the Act and their issue would be one contained under the somewhat general law, Indian Succession Act, 1865. An inclusion of remaining areas of personal laws in the Special Marriage Act would be a desirable effort in the march towards securing a Uniform Civil Code. Governmental patronage by way of reservations, concessions and bounties to the persons adopting Secular Civil Code would further facilitate the efforts to that end.
Our society is pluralistic. Legal pluralism is one of its facets. For being secular, homogeneity in Personal law is not the desideratum. The receptiveness to and tolerance of all cultures, races, creed would cumulatively constitute a Secular Republic. Peaceful co-existence of all citizens with the fundamental freedom to follow one’s own religious precepts can make our country a ‘Rainbow Republic’. ‘Unilateral Civil Code’ instead of a ‘Unanimously Accepted Civil Code’ may wreak havoc to the system which Bharath Matha cannot brook anymore after partition.
Adv. S.Sanal Kumar is a Lawyer practising at High Court of Kerala.
Views are personal of the author and does not reflect LiveLaw’s views.