PERSONAL LAW
The Constitution is paramount. The need for a uniform civil code is inscribed in Article 44, not as an immediate or imminent statutory mandate but as a destination to be reached by Operation State Endeavour, stage by stage.
The finer synthesis of these two values secularisms and right to religion is the genius of our polity. The principle that secularity is the warp and woof of Indian society and State and that freedom of religion and conscience, within its legitimate frontiers, is a categorical imperative must be happily reconciled.
The right to freedom of religion is subject to public order, morality and health and the State may by law regulate or restrict any economic, political or secular activity associated with religious practice and provide for social welfare and reform.
Two propositions are non-negotiable. The first is that the power of the legislatures to make laws in any temporal sphere of human affairs and even with respect to religious freedom and its frontiers is unchallengeable. The Islamic laws are enforceable in our country not because of the authority of the Quran (which is of supreme value to Muslims, tho') but because the Indian State commands so. Similarly, the Hindu scriptures, however sacred, become binding law only by the State's authority.
The second proposition is that the power to adjudicate on the legal limits which separate religion from secularism and demarcate the boundaries between 'Caesar' and "God" belongs to the courts. If a jural imbroglio creates a dispute as to where religion comes into conflict with a State statute, the court, not ulema, acharya or cardinal, declares the bounds.
Should we have a uniform civil code? Is that an open question? If not, what are the political processes towards that end? After considerable deliberation in the Constituent Assembly, it has been finally decided that there shall be a uniform civil code. At the same time, the means whereby this end is to be achieved may be gradual.
How should we go about it since the measure of a democracy is not to force measures by brute majority but by suasive processes, but remaining firm on basics like gender non-discrimination. What we need is not Hindu law nor Muslim nor other theological system but an eclectic, progressive corpus juris with an Indian flavor and unitive genre. Let us make haste slowly-not rashly.
Indian communalists - Hindu and Muslim - in ballooning the advocacy and hostility centering round a uniform civil code (UCC) swear by excess as a means of success. Heavens will not fall if no UCC incarnates the morrow morn. In the U.S. each State has its own laws and yet American nationalism faces no crisis of breakup. Likewise, there is in Indian a UCC in Goa and Islam has not committed 'harakiri' there. There is already a UCC in a large part of our corpus juris Nor are Hindus all that secular or gender-just. There is more bigamy among a large part of our corpus juris Nor are Hindus all that Hindus now than among Muslims; more cruelty and discrimination against women in the Hindu fold what with dowry and sati and denial of coparcenary. But objectively viewed, the argument for a UCC is based, not on the need for rigid uniformity or Procrustean equality for all Indians alike but on the need to nullify the pathologically communal nexus between Family Law and religion with its explosive potential in the Indian polity.
The validity of the secular laws, says Frankfurter in the American context, cannot be measured by their conformity to religious doctrines.
So the State must take some intelligent steps and not hibernate for half a century. Regrettably, Rajiv Gandhi even reversed the process under ulema ukase and Mr. P.V. Narasimha Rao is amnesic about Article 44 when ulemas gather. This is contra-constitutional conduct.
vision of values concordant with current human rights The first step is to produce an Islamic code with a and values non-discriminatory against women. What is actually intended is the formulation of a comprehensive statute taking the best from various family laws, improve upon them and make a model for a pluralist society, keeping as closely as possible the genius and traditions of Indian family values.
code may immediately be drawn up... which may also Indeed, as an experimental measure a facultative contain flexibility enough to accommodate some changes, if the parties so desire. This special code may be enacted as an optional legislation. Any citizen of India may take advantage of it by a formal act of his. Nobody need be coerced but everybody will have the choice to enjoy the benefit of such a code.
The Bar Council of India has done some service, not in achieving consensus, but by essaying the drafting of a code under Article 44, through a Convention (1986).
Similarly, the National Commission for Women has prepared a draft of an Indian women's code applicable regardless of religion.
(Source: The Hindu, 22 & 23 August, 1995)
Abul Hasan Ali Nadvi on Payment of Imams' Salary by Govt.
The A.I. Muslim Personal Law Board has declared that the Government decision was 'illegal' and against Shariat.
Once the Imams become the employees of the Government, they would be used for election. purposes by the parties. We are aware of the conspiracy to use them as election agents.
