THE DEMAND FOR “COMMON” CIVIL CODE

“The Uniform Civil Code maybe described as controversy’s favorite child.”

Article 44 of Directive Principles of State Policy says “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.” But it is a matter of regret that article 44 of the Constitution has remained a dead letter for the Indian judicial system. Article 44 is based on the notion that there is no viable relationship between religion and personal laws in a civilized society. In one hand, Article 25 of the Indian Constitution allows everyone the right to follow, profess and propagate his or her religion with utmost dignity, whereas Article 44 seeks to divest religion from social relations and personal law.

The discussion for having a proper Civil Code for all did take place during Constituent Assembly proceedings, where the then Law Minister of India, Mr. B.R. Ambedkar stood in favour of reforms in the society by having a proper Civil Code. But due to stiff resistance, this proposal was not allowed to be passed in the Assembly and hence was pushed to the category of “non actions” called the Directive principles of State policy. Therefore the meaning of Uniform Civil Code was articulated as a proposal to replace the personal laws based on the scriptures and customs of each major community in India with its own sets of laws governing every citizen.

When we talk about equality before the law to all in society, we cite the criminal laws of the country. But in civil matters such as marriage, adoption, succession, divorce and inheritance, the allowance of patriarchy is on a high. The dilution of gender justice done through ages has not awakened the minds of a common Indian. Therefore the idea of a “Common Civil Code” needs to be well conceptualized so that it can be understood by all. Religion cannot be used as a tool to justify acts of public immorality, public disorder or discrimination. The rightful interpretation of religious texts is essential to counter these draconian laws to the extent possible.

By setting aside the discriminatory aspects of existing personal laws and incorporating modern and progressive aspects, we can move towards a common civil code. The applicability of so many personal laws for different communities has created a deep-seated problem in the Indian judicial system. This fact has been acknowledged by the Honorable Supreme Court of India which has time and again stated that there is a “Total Confusion” when it comes to personal laws governing religious practices.

The Supreme Court of India has been very active on the issue of same Civil Code for all. It has given landmark judgments to support the cause of non biased civil laws in India whether it is in the famous cases of:

  • Shah Bano (1985), which talks about maintenance of Muslim women after divorce.
  • Sarla Mudgal vs. Union of India and Others (1995), which raised three pertinent questions for Courts; first, whether a Hindu husband married under Hindu law by embracing Islam, can solemnize a second marriage? Second, whether such a marriage, without having the first marriage dissolved, would be a valid marriage for the first wife who continues to be a Hindu? And last, whether the apostate husband would be guilty of the offence under section 494 of the Indian Penal Code?
  • Daniel Latifi vs. Union of India (2001), where the court stated that reasonable and fair provisions include provision for the future of the divorced wife with no confinement along the divorce period as stated in Muslim personal laws. This remains the final case law in this regard.
  • Shamim Ara vs. State of Uttar Pradesh (2002) ruling which supported the claim that arbitrary ‘triple talaq’ is invalid. 

These decisions support the view of Shri K. Kannan, a former judge of the Court of Punjab and Harayana that by borrowing from laws of various communities and making judicial pronouncements that assure gender equality, the nation can move towards a uniform set of civil laws in due course.

Assessing the present scenario, the government has asked the Law Commission of India headed by retired justice Balbir Singh Chauhan to formulate a report on the formulation of Common Civil Code. The Law Commission chief has said that people must be educated on this issue. People should know and understand this Civil law reforms from a humanitarian viewpoint to guarantee the equal rights of citizens, rather than from a non-moderate religious attitude. 

Till the time this matter is seen from a religious perspective, from a perspective of curtailing minority rights, then this issue will face the same resistance as other major reforms in India.

This is high time for introspection among citizens of India on whether they would like to continue to enforce principles of the 18th century that destroy the 21st century of India. Rigidity is inheritably imbibed in many of the personal laws of India. It is a fact that there remains greater rigidity in the personal laws of some communities whereas,in others, serious reforms have been introduced, that have contributed to the progress of those communities. But there is lack of comprehensive reforms even in those outdated laws.

Viewing this demand from a macro level perspective, the implementation of this matter will give a global outlook to India in terms of equal gender rights, equal minority rights and of course equal human rights. Moreover, it should not be seen as a concept presented by the Western World. Rather, it is the periphery adopted by the leftist governments in the east, where state and religion are seen differently and where state is above the question of religion.

There is hope that a call for a Common Civil Code will purge the nation of inequality by removing the evils of polygamy, child marriage, and arbitrary divorce, rigid grounds for a divorce, unjustified property rights and disparity in adoption laws. It is significant to note that the personal laws of the Hindus, such as those relating to marriage, succession and other issues, have all a sacramental origin in the same manner as in case of Muslims or Christians. The Hindus, along with Sikhs, Buddhists and Jains have forsaken the sentiments in the cause of national unity and integration; some other communities haven’t; although the constitution enjoins the establishment of a “Common Civil Code” for the whole of India.

Thus in order to generate wide consensus, any discussion on the issue of Uniform Civil Code in India must be cognizant of the undue stress given on the word “Uniform”. Uniformity in civil laws is often linked with majoritarianism  causing sections of society to resist this revolutionary reform. The very concept of complete uniformity in society is a farce and it is therefore essential that the codification of civil laws should encompass every person under its purview. It has rightly been observed by the Hon’ble Supreme Court that

“Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”

The author, Aditya Poddar, is a student of Commerce at St. Xavier’s College, Kolkata.

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