PERSONAL LAW

Sandhya Jain on Uniform Civil Code

The judiciary has taken a gratifying lead (on) the uniform civil code, a matter has been handing fire since Constituent Assembly ruled on its desirability, but declined to clinch the issue. This one issue, more than the crusades for probity in public life and political reservations for women, will set the agenda for the kind of nation we will be in the next century. For, at its crux lie the basic issues of human dignity, gender justice, equality and, above all, natural justice.

The Supreme Court has struck a powerful blow for reform with its recent ruling that the Ecclesiastical Tribunal (Church court) is not empowered to interfere in matrimonial matters, and Christians can seek divorce under the Indian Divorce Act (The Times of India, October 9, 1996). Justices N.P. Singh and S.B. Majumdar decreed that the second marriage by a Christian woman, following the annulment of her first marriage by the church, is invalid.

This brings us to the ticklish issue of whether "personal laws" can legitimately claim immunity to change and reform. The issue is especially pertinent in the context of the Union Government's stand before the Supreme Court (September 3, 1996) that it cannot enact a uniform civil code as it is against its policy to interfere with the personal laws of minority communities.

The Government was responding to a Supreme Court directive to inform the court what steps it had taken to enact a uniform civil code. The directive arose in connection with a judgement last year in the case of Sarla Mudgal, Kalyani and others (petitioners) versus Union of India and others (respondents), in which the second marriage of a Hindu husband after conversion to Islam while the first marriage was subsisting, was held to be void.

 The Government was only reiterating conventional wisdom since Independence.

(Justice Kuldip Singh said) with refreshing candour, that "those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation Indian nation and no community could claim to remain a separate entity on the basis of religion".

Ironically, a similar plea for a uniform civil code, which also fell on deaf ears, was made over a decade ago by a Constitution Bench comprising Chief Justice Y.V. Chandrachud, in the Mohammed Ahmed Khan versus Shah Bano case. In a sharp indictment of the executive, the Bench observed: "A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. It is the State which is charged with the duty of securing a common civil code for the citizens of the country and unquestionably, it has the legislative competence to do so the we understand the difficulties involved in bringing. persons of different beliefs and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning".

The unhappy aftermath of the Shah Bano case is too well known to need reiteration. Justice Chandrachud's sad warning, however, remains relevant: "Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a uniform civil code, Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.

It is an unfortunate paradox that while the need to reform personal laws is widely acknowledged, talk of a uniform civil code is construed as an attack on minorities.

It is nobody's case that Hindu personal law is so perfect that it is above amendment. The Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and the Guardianship Act, 1956, among others, are proof of reforms sorely needed in traditional Hindu law. And it is an on-going process.

Nor is the bogey of an attack on religious freedom tenable. Article 44 rests on the premise that in a civilized society, there is no necessary connection between religion and personal law. Religious freedom is guaranteed by Article 25, while Article 44 separates religion from social relations and personal law. The Constitution-makers believed that while marriage, succession and like matter shad a sacramental origin in all faiths, they are essentially secular matters, and cannot be brought within the guarantees enshrined under Article 25, 26 and 27.

The argument for a uniform civil code is a struggle for human rights, freedom, dignity, and above all, justice. Whether it is triple talaq, sati, human sacrifice or polygamy, any practice that derives its legitimacy from religion and yet is violative of human rights and dignity, is - and must be acknowledged as - unjust and oppressive.

It is highly unlikely that our minority vote-wooing politicians will agree to bell the cat. There is a silver lining. The courts are alive to the cause, and can be relied upon to justice on a case-to-case basis. Even piecemeal justice is better than no justice at all.

 (Source: The Pioneer, 12 November, 1996)

It’s not fair! It’s like asking Deve Gowda about Taslimuddin.

- L.K. Advani, BJP President when asked questions about Sadhvi Ritambhara

Shahabuddin's Letter to The Pioneer,

12 November, 1996

Sandhya Jain's "Pleading for Uniformity" (12 Nov. 1996) only traverses the well-beaten track and makes the familiar error of confusing uniformity with national unity and identify the secular order with a uniform civil code. She quotes the Supreme Court orders in the Sarla Mudgal and Shah Bano cases and omits to mention the most recent order in the Shahnaz Sheikh case on the constitutionality of Muslim personal law. Historically, in the course of the Freedom Movement, the Congress had repeatedly vowed to protect the Muslim personal law. Successive Governments have abided by what Sandhya Jain calls conventional wisdom of refraining from imposing reforms in personal laws against an unwilling religious community which derives its personal law from its scriptures and considers it to be an unseverable extension to its religious faith. Even Ambedkar cautioned against any imposition.

Sandhya Jain has once again confused two issues - reforms in and codification of Muslim personal law, within the framework of the Shariat and the imposition of a uniform (Common?) civil code on the Muslims. Indeed, Muslim personal law has been statutorily "reformed" twice during the British Raj in 1937 and 1939 and at least once in 1986 after independence, on the basis of a Muslim consensus. Muslim Indians reject religious assimilation and believe that different religions can safely co-exist within a national framework which is democratic and secular. But they see a uniform (common?) civil code as a majoritarian maneuver to submerge and efface their religious identity

In my personal view, the State is free to follow up on the civil Marriage Act and introduce a model common civil code which would be optionally applicable to any citizen on the basis of a voluntary declaration to opt out his religious code. It would be for each religious community to organize and protect its flock.

MUSLIM INDIA

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Union Government's Submission Before the Supreme Court, October, 1996

"Bringing in a Uniform Civil Code (UCC) will necessarily involve changes in the personal laws of the minority communities and it has been the consistent policy of the Central Government not to interfere on its own in the laws of the minority communities unless the initiative for the changes come from those communities". Ever since the apex court... pronounced its judgement in case of Mrs. Sarla Mudgal, president, Kalyani, the Government have been receiving considerable number of representations from the Muslim. community vehemently opposing bringing in the UCC, as they consider it to be an interference in the personal laws of that community.

The total number of such representations run into 1,19,980 which includes 1,16,539 post cards, 3010 letters and telegrams from individuals and office-bearers of religious bodies and 439 joint representations by them.

It may be appreciated that many of the representatives reiterate the view that matters relating to marriage, divorce, succession or the like were essentially religious matters and they were included in the freedom of religion guaranteed under Art. 25 of the Constitution.

The founding fathers of Indian Constitution had occasion to deliberate on the same. Dr. B.R. Ambedkar, while dealing with the question of saving personal laws, made it clear that what is all that the State was claiming was a power to legislate.

"There is no obligation upon the State to do away with personal laws. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.

"Bringing such a uniformity is not sought to be achieved by undertaking a comprehensive legislation, but- slowly and steadily. "The enactment of such a code is thus a continuous process. The personal laws of different communities in this country have not remained static. They have undergone changes in a number of aspects. All such changes constitute steps in this direction.

Due to absence of uniformity of views among the different sections of the citizens in the country as to the enactment of a UCC of laws relating to marriage, succession etc., it is not possible for the Union. Government to enforce a UCC for all the communities in the country. The laws contained in the Caste Disabilities Removal Act, 1850, the Indian Evidence Act, 1872, the Child Marriage Restraint Act, 1929 and the Special Marriage Act, 1954 are some of the steps towards achieving the Uniform Civil Code,

In the post constitutional period, the first major step taken was the enactment of the Special Marriage Act, 1954 which enables people of all religious denominations to solemnize their marriage or to get their marriages earlier solemnized under their respective personal laws to Hindu Marriage Act, 1955, the Hindu Adoptions and be registered under the Act. With the enactment of the Maintenance Act, 1956, the Hindu minority and Guardianship Act, 1956 and the Hindu Succession Act, 1956, the law governing the majority population of the country which included the Hindus in its various forms, the Sikhs, Jains and Buddhists by religion has been streamlined and a uniform law has been formulated.

 (Source: The Hindustan Times, 29 October, 1996)