A UNIFORM CIVIL CODE: POSSIBILITY AND DESIRABILITY – Does India need a Uniform Civil Code?

 

Author’s Note

This article attempts at answering the question ‘Does India need a Uniform Civil Code?’ I think that the real issue is not as much as about as the “need” for it as it is for us to find out the possibility and the desirability of such uniformity in the realm of personal laws of citizens. The article has been written more from the perspective of a citizen of this country with some knowledge of law than as a student pursuing legal education. Apart from various sources that have been consulted to pen down this article, one source that I think demands acknowledgement right here is Dr. Faizan Mustafa, Vice-Chancellor, NALSAR University of Law, Hyderabad (my University) who has extensively written on this subject matter.

Introduction: What is a Uniform Civil Code?

A constitutionally proposed ‘Uniform Civil Code’ placed in Article 44 of the Constitution of India aims to uniform the personal laws currently thriving on the customs of major religious communities. As distinct in their scope and character from public laws that govern the relation between individuals and the state, the private laws or the personal laws concern the relations amongst individuals and private entities in a society. The specific attention areas specific to personal laws[1] here are marriage, divorce, adoption, inheritance, and maintenance. Exemplifying, if a Uniform Code is brought into force, polygamy as permitted under the Muslim Personal Law deriving some of it ingredients from the Sharia law would have to pave way for something common marriage laws for all religious communities and sects therein.

The State of Goa, a former Portuguese colony, retains the distinction of having the country’s lone common personal laws.[2] As far as the institution of marriage is concerned, what goes beyond the realm of religious custom-based laws is the Special Marriage Act of 1954,[3] and is applicable to the whole of India.

The legal mandate in the DPSPs is better captured if seen as a political mandate to the right-wing parties after the 2014 General Election result. But, there’s more to the debate than merely politics, the issue has complex socio-legal dimensions which, if not paid attention to, could endanger the foundation that transform an Indian ‘society’ into an Indian ‘nation.’

Secularism in India

The socio-political concept of secularism, as it emerged in the West, enshrined the separation of the state from the church. As our constitution framers did not just copy paste big words from the rest of the world, freedom fighters realised the complex ways in which governance in an independent India would realise. They gave secularism a different meaning, referring to equal treatment of all religions by the state.[4]

The constitution and other laws of the country tacitly command the state and its institutions to acknowledge and accept all religions duly recognise the validity of religious laws[5] and respect pluralism.[6]

People of India, have an enforceable right to religious freedom; the Indian state has no public religion (as is in a theocracy). The Rule of Law in India establishes a multicultural and multi-religious citizenry, electing a democratic government.[7]

A dichotomy of sorts exists when we analyse this with the legal position that stands as today; as is apparent from the community specific personal laws. However, never has uniformity been a characteristic of either the Indian ‘society’ or of the Indian ‘nation.’ And the legal landscape is no different. This pluralism of the legal landscape is in complete harmony with the kind of secularism that India as a nation has embraced.

Legal Evolution: From Hindu Code to Shah Bano and Sarla Mudgal

Those who misleadingly conclude their support of a Uniform Civil Code in the name of uniting India rely on the pre-1937 position of law when Hindus and Muslims had followed the “common customary Hindu civil code” when the British in their divide and rule passed the Muslim Personal Law (Shariat) Application Act. The pre-1937 position, though on ground, was very different from what it was on paper. A majority of Muslims did not followed Hindu customs back then. There is evidence suggesting the otherwise. [8]

The pre-British elements of Mughal jurisprudence were readily incorporated into the three-tier court system as introduced by Cornwallis in 1790. In fact, the British judges had to wait until 1817 to overrule the fatwas only when a resolution had been introduced to repeal their binding character.[9]

After independence, Dr. B R Ambedkar was unable to get the Hindu Code passed in 1956. As a matter of action, this led to the addition of Article 44 in the Constitution of India as a Directive Principle of State Policy asking the state to endeavour to get a Uniform Civil Code in place. It was feared, then, by many, that a reform such as this could spur tensions amongst the populace. Later, the Shah Bano Case[10] of 1985 exposed the politically transpired communal divides within the Indian society. Ten years later, with the Sarla Mudgal Case[11], on the face of it, voicing for a Uniform Civil Code as done by Shah Bano, it was realised as to how a Uniform Civil Code was much big a battle in politics than in law. And politics in India is about people. Thus, it now seems to me, that unless all stakeholders come to the same page on this, any attempt to bring on a Uniform Civil Code would be an attempt at futility.

Contemporary Realities: Is it possible?

It is a fact that not all Muslims (or other religious minorities) are opposed to a common civil code. Some seem to be welcoming it.  But, even those who look forward to bringing uniformity in the domain of personal laws do not want a code coming into play amidst opposition from some quarters.

Any need put forth for a Uniform Civil Code must also be seen in the light of its potential efficacy. No ‘de lege ferenda’[12] is possible if it is not at all feasible or is unable to address the mischief that it is supposed to. The first question would be whether it is possible to reconcile the differences within the Indian society to come up with a code that could be acceptable to all religious communities residing within India. A comparison of the personal laws of Hindus, Muslims and other communities will expose the sheer and stark diversity of these laws. Even within a community, let’s say, Hindus, there are Sikhs, Parsis, Jains, Buddhists in addition to various sects such as Vaishnavas, Lingayats et al. that uniformity neither seems possible nor desirable.  Further, Indian jurisprudence has already an exception carved out in the form of an ‘optional civil code’ called the Special Marriages Act, 1954 and Indian Succession Act, 1925 for those who may ant to avoid the religion-founded laws.[13]

As Dr. Faizan Mustafa states, “between uniformity and legal pluralism, the latter is a superior value. History contains many instances of pluralistic legal systems in which multiple sources of law existed.[14] Even in the states of Goa and of Jammu and Kashmir, there are no uniform provisions governing the personal domains of marriage and divorce.[15] Thus, pluralism in legal sources and rules is inevitable, especially in a multicultural democratic republic like India.

Religious Freedom and Personal Laws

The Preamble to the Constitution of India mentions that India is a secular state. The Preamble reflects the way of life adopted by Indian citizens for themselves after independence. In fact every civilization has also been a mirror of way of life as well as reflecting movement of human spirit. Religion in each civilization has indicated about the faith of human beings in absolute values and a way of life to realize them. Therefore laws, treatises, customs, policies, regulations and conventions are not the only means of social control but the religion and morality also formulate and shape the human behavior. [16]

Under Indian laws, people have a right to their religion. The state is permitted to interfere in the religious matters of its peoples on very limited grounds.

Indian model of secularism is very distinct from the Western one. Here, the state respects the presence of various religions. Individuals have a right to religion. This framework of the Indian state, in this sense and aspect is distinct across the community of nations. Laws, like all other things should be in consonance with this framework. Thus, it is reasonable to give religious institutions some kind of autonomy in the realm of personal laws, which won’t tarnish India’s secular credentials.

Personal laws, in their character and scope are ‘strictly personal’, connected with the ways of life of each and every individual belonging willingly to a particular community. People have the right to practise any religion of their ‘choice.’ When they exercise this particular choice, they also make a choice to cherish the ideals and uphold the rules and institutions associated with that religion. If any such individual wants to convert to any religion, nothing bars him or her from doing so, and thus, changing the set of laws applicable to him or her. Another course of action is to marry under the provisions of the Special Marriage Act.

Conclusion: Too little a service?

India is a multicultural country, diverse in every sense and aspect that could be thought of. We are a vibrant democracy respecting differences and diversity that characterise us as a socio-political collective. Some of us have more in common to people living outside our country than those within it; say Indian Punjabis with Pakistani Punjabis than other communities within India.[17] But when it comes to ‘We the People’ who are a ‘nation,’ we see ourselves as a citizenry rather than as a community, signifying the strength of our national bond.

Uniformity has never been an ideal in the legal world. Laws change as per requirements. In a democracy, the creation of laws is essentially done in a bottom-up manner, as against its implementation as a top-down flow. Indian legal system is distinctively distinct. We have what is called the separation of powers at various levels: both horizontal and vertical. We have special laws for some regions as well as for some tribal communities. Our society preaches respect for diversity, as is done by our constitution, the supreme law of the land. Let us not try to clothe this diversity with a ‘Uniform’ Civil Code.

As a nation that respects differences, it is must for the society as well, to incorporate this temper and spirit. Having uniformity only in laws without seeing ‘others’ as being similar to us, and cultivating the spirit of brotherhood and humanity will serve no sustainable purpose. To truly put into action the word ‘Secular’ mentioned in our Preamble, we will have to see the Indian society as being one despite manifesting a multitude of differences; differences in race, religion, sex, caste should be celebrated and seen and made use of positively rather than fighting over them. If we are able to do this, I don’t think it will be any difficult to either have a Uniform Civil Code, or have any reason to not to have it. I advocate such a Uniform Civil Code, which will come unopposed, in an absolute measure. Even if one person from a minority group will oppose any promulgation of such a code, to my opinion, that will amount to a contravention of the basic tenets of the Indian republic, which lies on the foundation of a multicultural and multi-religious society.[18]

Riots don’t happen because Hindus engage in Saptapadi, very distinct from Muslims’ Nikkah. Hatred does not originate either from Muslims burying their dead ones and the Hindus burning their deceased’s bodies. No religion preaches violence against their brethren following other religions. Different religious communities think and act against each other due to misunderstandings and misinformation. Specific practices of different communities are merely used as a cover-up justification for such violence by some demagogues working against the spirit of humanity.

As far as arguments concerning rights of people were concerned, for example those of women under the Sharia law, there is already an exception in the form of some statutes cited in the preceding paragraphs of this article.

Answering the question of whether India needs a Uniform Civil Code or not, I think it wouldn’t be incorrect for me to say that, having a code preaching uniformity without actually carving uniformity amongst people on socio-economic and political lines and merely by the President’s stamp on some pages reading out such uniformity will be too little a service to the values and ideals of our constitution, our nation and our society, and hence not desirable, ignoring even the possibility of doing something like that.

 

Bibliography

Books

  • GERALD JAMES LARSON, RELIGION AND PERSONAL LAW IN SECULAR INDIA: A CALL TO JUDGMENT (Indiana University Press) (2001).
  • PARTHA S. GHOSH, THE POLITICS OF PERSONAL LAW IN SOUTH ASIA: IDENTITY, NATIONALISM AND THE UNIFORM CIVIL CODE (Routledge) (2012).
  • SHASHI THAROOR, INDIA: FROM MIDNIGHT TO THE MILLENNIUM AND BEYOND (Arcade Publishing) (2006).
  • Bhargava Rajeev, Secularism and Its Critics, (Oxford University Press, Delhi, 1998).
  • Rudolph Peters: Crime and Punishment in Islamic Law (2006).
  • FALI S. NARIMAN, THE STATE OF THE NATION: IN THE CONTEXT OF INDIA’S CONSTITUTION (Hay House India) (2013).
  • Rajagopalan (2002), “Secularism in India”.
  • DONALD E SMITH (2011), INDIA AS A SECULAR STATE, (PRINCETON UNIVERSITY PRESS).

 

Statutes

  • Constitution of India.
  • Special Marriage Act, 1956.
  • Cutchi Memons Act, 1920.
  • Mahomedan Inheritance Act (II of 1897).
  • Muslim Personal Law (Shariat) Application Act, 1937.

 

Case Laws

  • Mohd. Ahmed Khan vs Shah Bano Begum And Ors. (1985 SCR (3) 844).
  • Sarla Mudgal, & Ors. v. Union of India (AIR 1995 SC 1531).

Journals

  • Joirnal of Philosophy and Public Affairs, Vol 18, No 3.

Newspapers

  • THE HINDU.
  • THE INDIAN EXPRESS.
  • HINDUSTAN TIMES.

[1] Gerald James Larson, Religion and Personal Law in Secular India: A Call to Judgment (Indiana University Press) (2001)

[2] Partha S. Ghosh, The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code (Routledge) (2012)

[3] Act No. 43 of 1954.

[4] Donald E Smith (2011), India as a Secular State, (Princeton University Press)

[5] Rajagopalan (2002), “Secularism in India”.

[6] Christophe Jaffrelot, A skewed secularism?, Hindustan Times http://www.hindustantimes.com/, http://www.hindustantimes.com/ht-view/a-skewed-secularism/story-MfUza7MZXVWxuUXJIvZQ6J.html (last visited Dec 31, 2015)

[7] See Fali S. Nariman, The State of the Nation: In the Context of India’s Constitution (Hay House India) (2013)

[8] See Cutchi Memons Act, 1920 and the Mahomedan Inheritance Act (II of 1897) providing for Muslims to be governed by their own personal laws.

[9] Rudolph Peters: Crime and Punishment in Islamic Law (2006)

[10] Mohd. Ahmed Khan vs Shah Bano Begum And Ors. (1985 SCR (3) 844)

[11] Sarla Mudgal, & Ors. v. Union of India (AIR 1995 SC 1531)

[12] A legal maxim used in the context of “how the law should be” rather than what “the law is.”

[13] A. Faizur Rahman, Uniform civil code: will it work in India?, The Hindu, Nov. 23, 2014,

[14] Faizan Mustafa, Why Legal Pluralism Matters The Indian Express,  Nov. 16, 2015

[15] Hindus of Goa are still governed by Portuguese family and succession laws, Muslims there are subjects to the Hindu shastric law. Even in Jammu & Kashmir, the local statutes governing Hindus differ from the Central enactments.

[16] Audi Robert ‘The Separation of Church and State and the Obligations of Citizenship’, Joirnal of Philosophy and Public Affairs, Vol 18, No 3.

[17] Shashi Tharoor, India: From Midnight to the Millennium and Beyond (Arcade Publishing) (2006)

[18] Bhargava Rajeev, Secularism and Its Critics, (Oxford University Press, Delhi, 1998)

 

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