PERSONAL LAW

A Voluntary Common Civil Code Inder Jit on Ambedkar's Middle Path

An ugly and wholly unnecessary controversy has come to be generated over the important but sensitive question of a common civil code. In the bargain, India has been recklessly pushed towards a communal divide, which could even blow up one day. Ironically, those who are for the code or against it swear equally loudly by secularism, national integration and India's unity.

In their quest for one-upmanship, both sides have sadly allowed their enthusiasm to run away with their good sense. None has spared a glance at the Constituent. Assembly debate on the issue and the reasons which prompted the father of the Constitution, B.R. Ambedkar, in favor the common code. The result? The middle path wisely advocated by Baba Saheb has been spurned negligently, leading to the present impasse.

Justified Stand Mr. Atal Behari Vajpayee and his BJP are justified in demanding a common code on two grounds. First, Article 44 of the Constitution. Second, the Supreme Court has directed the Union Government at least twice in the last 10 years in no uncertain terms to secure a common civil code for the citizens of India Mr. P.V. Narasimha Rao and a whole lot of other leaders, including those of the Left and the Muslim League, feel equally justified in opposing a common code. They strongly believe that the majority has no business to "impose" a common code on the Muslims of India, who have their own personal laws, and on other minorities. Article 44 of the Constitution, they assert, should be implemented only with the full consent of the minorities. Any arbitrary imposition would fly in the face of secularism.

Much of the trouble has arisen because of widespread ignorance among the powers that be and casualness in dealing with serious national issues. Even those who loudly swear by Ambedkar have chosen to remain blissfully ignorant about his views. They should know that Ambedkar would never have favored a common civil code without good reasons.

Ambedkar spoke at some length on the subject during the Constituent Assembly debate on Article 35, now Article 44 of the Constitution on November 23, 1948. He appears to have been provoked to do so on two asserted that every community and group had a right to counts. First, when some Muslim members repeatedly follow its own personal law, which was a part of their religion and culture. Second, when they went on to contend that a common civil code would clash with and "freedom of conscience and the right freely to profess, undo Article 19 of the Constitution, which provides for practice and propagate religion."

Characteristically Ambedkar went to the heart of the matter and made to observations. He pointed out that the Muslim festival law was not immutable and uniform throughout India, contrary to what had been claimed in the amendments (moved by Muslim members). He said: "Most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province (NWFP) was not subject to the Shariat Law. It followed the Hindu law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shariat Law to them.

Ambedkar was at his brilliant best in his second observation, which needs to be comprehended by people on both sides of the communal divide. He said, "I think they have read too much into Article 35, (which is now Article 44) 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. 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 stages the application of the code may be partly voluntary.

"Parliament may feel the ground by some such method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the NWFP. The law said that here is a Shariat Law which should be applied to Mussulmans provided a Mussulman who wanted that he should be bound by the Shariat Act should to go 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. Where do we go from here? Will we resurrect Ambedkar's middle path or will we let his sagacity gather dust? More time should not be lost in giving India a "purely voluntary" common civil code.

 (Source: The Thees of India, 17 July, 1996)

Perils of Voluntary Civil Code

Nazeer A. A. Majeed Reply to Times of India

Mr. Inder Jit 'middle path not really in the 'middle'. Dr. Ambedkar's 'brilliant idea of a voluntary common civil code is all about 'how to make a beginning. He wanted the common civil code to be 'purely voluntary in the 'initial stages", in order for Parliament to feel the ground' by 'some such method" by 'some such methods'. The idea provides no solution at all to the vexed issue. If the government introduced a voluntary common civil code, 'rath yatras" would be unleashed to pursue it to the 'logical end' of a compulsory common civil code. And then we would be back to square one.

To hold, as Mr. Inder Jit does, that national integration 'demands" a common civil code is to agree with the RSS notion of 'cultural nationalism'. With the main corpus of the law of the land being common, it makes no difference to have 'disparate loyalties' to Indian secularism of toleration and accommodation. Of different personal laws, as long as we have faith in the religions.

Introducing a common civil code against the wishes of the Muslim community and allowing a directive principle to take precedence over the fundamental right to practice one's religion will alter the basic character of the Constitution and be a slap in the face of the secular and democracy ideals of its framers.

(Source: The Times of India, 31 July, 1996)