UNIFORM CIVIL CODE – TOWARDS DIGNTY or DESTITUTION

Posted on Posted in Consulting, Legal Consulting

UNIFORM CIVIL CODE – TOWARDS DIGNTY or DESTITUTION

Purushottam Sharma Tripathi[1] & Abhishek Tripathi[2](edited by Dr. Mrs. Mridula Tripathi[3])

When asked by French writer André Malraux on the greatest difficulty since Independence, Jawaharlal Nehru replied: ‘Creating a just state by just means’.

Then he added, ‘Perhaps, too, creating a secular state in a religious country’.

We want to lead mankind to the place where there is neither the Vedas, nor the Bible, nor the Koran; yet this has to be done by harmonizing the Vedas, the Bible and the Koran.

Mankind has to be taught that religions are but the varied expressions of THE RELIGION, which is ONENESS, so that each may chose the path that suits him best. – Swami Vivekananda

SECULARISM IN INDIA

Although the word “Secular” was incorporated in the Preamble by the Constitution 42nd Amendment Act, 1976 nobody doubted that the Republic was conceived and made secular from the very beginning.

Articles 25 to 28 constitute the Fundamental Right to Freedom of Religion and are supplemented by Articles 14, 15(1) and (2), 16(2), 29(2) and 325 which prohibit discrimination in different matters on the basis of religion, while Article 30, grants some special rights to religious minorities.

Among the various conceptions of Secularism, the common element is the absence of State-sponsored or State-favoured religion. The basis of Indian secularism is “respect for all religions” as opposed to the state being anti-religious and neutrality towards religion.

Secularism has been elevated to the status of Basic Feature of the Constitution thereby being unamendable as per the judicial pronouncement of Constitutional Benches of the Supreme Court in S.R Bommai v. UOI[4] and Mohd. Ismail Farooqui v. UOI[5].

LAW MAKING ENVISAGED IN OUR CONSTITUTION

Laws in India are made by all the 3 wings of Government namely (1) Union Parliament, State Legislatures of the respective States, Municipalities & Panchayats (2) The Union Executive[6] and State Executives[7]& (3) the Judiciary headed by the Supreme Court of India[8] & High Courts[9] of respective States. Ordinarily, the power to promulgate laws is ordinarily vested with the Union Parliament and the State Legislatures.

Distribution of Legislative Powers has been given in Chapter I of Part XI of the Constitution comprising Articles 245 to 255, in terms of which the Union Parliament is vested with the exclusive power to legislative with respect to matters provided in List I of the VII Schedule (Union List) while the State Legislatures are vested with the exclusive power to legislate with respect to the matters given in List II of the VII Schedule (State List).

The Union Parliament and the State Legislatures are jointly vested with the power to legislate with respect to matters given in List III of the VII Schedule (Concurrent List).

Entry No. 5 of List III (Concurrent List) reads as under:

“5. Marriage and divorce; infants and minors, adoption, wills, intestacy and succession, joint family and partition, all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”

GOVERNANCE IN INDIA OVER THE AGES

Ancient India – the concept of Dharma

The humanitarian concepts and principles of equality, justice and universal brotherhood have been sensitively and comprehensively expressed in the Vedic literature for all members of society, without distinction. They give a clarion call for the protection of individual safety and dignity both, in times of peace and war.

In ancient India, society was an organizational unit and sages were considered as its leaders who laid down universal laws. These were unhesitatingly changed over the ages, either by debates or critical evaluation, taking into account the changing needs of the society. These rules not only concerned religious ceremonies and rites, but acted as a code of ethics and morality and governed social intercourse of everyday life. Civil laws and religious and social rules were not differentiated from each other. The entire spectrum of social, political and economic life of the people was regulated on the basis of rules and regulations ordained by divinely inspired sages and philosophers, like Manu. With slight difference of opinions about personal laws in the small Hindu communities, the uniformity of law was a general rule rather than an exception.

The core concept of equality, fraternity and secularism as found in Vedic Scriptures are reflected in the administrations of various kings of the ancient period. Reference may be made to the etching of the Ashokan Rock Edict of Girnar, Junagarh, Panel 7, where the Mauryan Emperor Ashoka’s ideas of Dharma are forcefully put thus:

“Priyadarshini wishes that all religious sects in his dominions should live in peace and amity and stresses self control and purity of mind”.

Indian society, since inception was essentially a duty based society. All aspects of human conduct, from cradle to the funeral fire, were governed by rules that compendiously were called “DHARMA”. The divinely inspired Shruti (Vedas), the memories reflecting the Vedic ideals (Smritis), virtuous conduct of the learned and finally one’s own conscience formed the four fold bases of Dharma. The customary practices of various communities formed the dynamic sources of law. The concept of dharma was that a Universal Cosmic Principle upholds all humankind together, by enjoining duties on all the constituents of society. The creation of duty in one individual necessarily results in the creation of right in another individual and protection of such right.

Gradually, Vedic emphasis on ritualism gave way to Upanishadic thought process, followed by reform movements in the form of Buddhism and Jainism. Infact right down to the 12th century, internal reforms under philosopher scholars like Shankaracharya, Madhavacharya, Ramanujacharya etc., ensured periodic cleansing of  social, religious and political rules and value systems, which in turn ensured the longetivity of the system.

Unfortunately, over the centuries, the laws of ancient India whose core strength had been   adaptability, became marred by rigidity, narrowness and parochialism, which resulted in a systematic degeneration and degradation of established socio-religious-political framework.

Medieval India (1192-1700 CE)

During the Medieval period in most part of India, public legal system in the centre and provincial capitals were based on Islamic principles under Muslim rulers of the Delhi Sultanate dynasties and the Mughal Empire. However, in areas distanced from the standard institutions of Muslim Rule such as rural India and Hindu dominated villages, local legal practices continued. The separation of judiciary from the executive during the time of Abu Bakr (573 CE-634CE), the Prophet’s senior companion, paved the way for judicial independence.

The sources of Muslim Laws were (1) the Holy Koran (2) Sunna or tradition which reflected the practices and precedents of the Prophet and his companions; (3) Ijma agreement established among highly qualified legal scholars; (4) Ijtihad principles of analogical reasoning drawn from the Koran and (5) Fatwas opinion of muftis and scholars in Islamic Laws.

The Civil Procedure Code was compiled during the Tughlaq regime under the orders of Feroze Shah Tughlaq. This code was followed till the reign of Aurangzeb who replaced it with Fatwa-i-Alamgiri in 1670.

The Muslim Rulers did not abolish the Hindu system of law altogether. Hindu law was allowed to be reserved for the Hindus and the Mohammedan rulers did not interfere with the system. The result was that the Muslim followed their Muslim law and the Hindus were allowed to stick to their own system of law. Thus there arose two separate systems of personal law which practically proceeded on parallel lines and which remained to be modified later only at the time of British administration

British India

When the British established their hegemony over India, they more or less continued the Muslim pattern of judicial administration, though once they consolidated their position over the whole country they completely changed the criminal law. They introduced their own system to deal with the various matters of civil law. Legislative immunity was granted to certain specified topics of Hindus and Muslims laws, which they considered were deeply interwoven with religion. The Britishers did not want to hurt the religious susceptibilities of Indians as they considered that interference in religious matters was not at all conductive to their friendly trade with Hindus and Muslims or their political stability.

The Second law Commission of India, 1833, constituted under the President ship of Master of the Rolls observed:

“it is our opinion that no portion either of the Mohammedan law or of Hindu law ought to be enacted as such in any form by a British legislation….The Hindu law and Mohammedan law derived their authority respectively from Hindu and Mohammedan religion. It follows that, as a British legislature cannot make Mohammedan or religion, so neither can it make Mohammedan or Hindu law”.

So the Britishers adopted the policy of neutrality while dealing with the personal matters of Hindus and Muslims.

British contribution in reforming personal laws

Although the British Empire adopted a policy of non-interference with the personal laws governing the religious and socio-cultural life in India, there were notable exceptions wherein they took concrete steps to abolish retrograde and inhuman customs like sati, suppressed the Thugs, prohibited infanticide and human sacrifice.

INDIAN CONSTITUTION & THE UNIFORM CIVIL CODE

The genesis of Uniform Civil code emanates from Article 44 of the Constitution. The same reads as under:

Article 44 – State shall endeavour to provide for its citizens a uniform civil code throughout the territory of India.

Constituent Assembly Debates on proposed Article 35 now Article 44

The Constituent Assembly debates show that the Uniform Civil Code was rigorously debated warranting the framers to shift the provision as a Directive Principle of State Policy as they realized that a certain amount of modernization was required before the various religious communities especially the minorities would be willing to accept commonalities especially in the backdrop of the partition and widespread riots. Hence separate personal laws were retained for separate communities.  India’s leaders at the time wanted a secular constitution on the model of a western democracy. However, what resulted was not secularism in the western sense of the word, but rather a ‘secular’ state with religious laws for its religious groups.

Three ‘Muslim’ members moved amendment to the Article 35 (Draft Constitution) and wanted protection to the personal law of group, section or community of people. Md. Ismail Sahib (Muslim member from erstwhile ‘Madras’), Mr. Naziruddin Ahmad and Mr. Mahboob Ali Beg Sahib Bahadur were of the firm view that UCC is not possible for a country as vast and as diverse as India and any effort to encroach upon the way of life of people, as steaming from their religion, would be unnecessary tyrannical inference by the State. They also submitted that UCC would go against Secularism; this statement is important as this becomes the bedrock for the debates that followed for six to seven decades after that day: the different concept of secularism as originated in West and as followed in the Indian Sub-continent. The western concept of secularism is about clear distinction of State from religion while the concept as followed in Sub-Continent follows that there should be accommodation and mutual respect for all the religion and that all religions can co-exist. It is needless to state that the later point of view is largely clouded by the Gandhian philosophy.

They sought to advance the argument that the Article on Uniform Civil Code was in direct contravention with the fundamental right as enshrined under proposed Article 19 of Draft Constitution (Article 25 of the Constitution) which provides for the right to freely profess, practice and propagate religion. It is a different matter that later on, and rightly so, Article 25 has been read down[10] to only oust the laws that infringe upon the essential practices of the religion whereas other aspects of the religion can be regulated by law.

It must also be pointed out that Mr. Naziruddin Ahmad submitted that though at that point it was not possible to incorporate UCC but may be at a later point of time it becomes possible to do so. This statement is relevant to the present debate over UCC.

Mr. K.M. Mushi’s stout defence of Uniform Civil Code

The main thrust of the arguments of Mr. Munshi was that in a modern society that independent India would be, it is necessary to separate religion from the sphere of personal laws (which are old and regressive to many sections of the religion specially women). He contended that without having a modern, progressive and uniform code for Personal Laws it is not possible to achieve Fundamental Rights[11], specially the right to equality. To conclude his submissions before the House, Mr. Munshi very appropriately quoted the example of Allauddin Khilji:

“…Allauddin Khilji made several changes which offended against the Shariat, though he was the first ruler to establish Muslim Sultanate here. The Kazi of Delhi objected to some of his reforms, and his reply was-

“I am an ignorant man and I am ruling this country in its best interests. I am sure, looking at my ignorance and my good intentions, the Almighty will forgive me, when he finds that I have not acted according to the Shariat.”

If Allauddin could not, much les,s can a modern government accept the proposition that religious rights cover personal law or several other matters which we have been unfortunately trained to consider as part of our religion.”

Perhaps it was easier for Allauddin Khilji to do so as he was not a leader of a democratic setup; the leaders of democratic setup have many obligations and concerns to look into before taking such path-breaking decisions. One such leader was Dr. B.R. Ambedkar, who, though in principle was for UCC but did not push the agenda far enough, as did many such leaders of his time, who spoke after Mr. K.M. Munshi. Dr. Ambedkar supported Mr. Munshi but abstained from getting into the “merits” of whether India should have a UCC. Nevertheless Dr. Ambedkar supported the UCC in spirit and submitted that if it is possible to have common laws in other spheres for a country as diverse and as vast as India then surely it is possible to bring everyone under the common umbrella of UCC. The amendments thus proposed were negated and Article 35 was adopted as it stands today as Article 44. It will not be incorrect to state that there was no uniform Sense of House either in support of UCC or against it, the Sense of the House only seemed to be that the matter should be left open for the Legislatures to come to ponder upon and decide.

UNIFORM CIVIL CODE – A CRITIQUE

The objective behind Uniform Civil Code is to address discrimination against vulnerable groups and harmonise various cultural/religious practices and bring them in conformity with the Constitutional values especially fundamental rights and human rights as recognized internationally in various conventions/treaties (UNHCR, UNCPR, CEDAW, Child Rights’ Convention etc.) to which India is a signatory.

Article 13 of the Constitution specifically mandates that all pre-constitutional laws in force within India in so far as they are inconsistent with the provision of the Fundamental Rights enshrined in Part III of the Constitution, shall be void to the extent of such inconsistency. “Law” has been defined to include customary laws viz. personal laws.

Article 14 of the Constitution mandates equality before the law and equal protection of all laws. Similarly Articles 15(1) and (2), 16(2), 29(2) and 325 prohibit discrimination in different matters on the basis of religion.

Article 256 of the Constitution mandates that the State Executive shall exercise power to ensure compliance with the laws made by the Parliament and the State, while the Union Executive’s power be exercised so as to give directions to the State as may be necessary. This mandates strict compliance with the laws, which is sought to be diluted by the personal laws.

The separate personal laws of India are inherently unequal as they are founded on the rules and traditions of completely different religions. Thus on the one hand, the constitution recognizes the continued existence of Personal Law, due to which Article 44 expects that India at some later date will have a uniform civil code and on the other hand, there exist several Articles, such as Article 14-19 which guarantee equal rights. Since personal laws for various groups are inherently unequal, since a divorcee in Muslim law is entitled to different things than in Hindu law which did not recognize divorce at all, therefore Article 15 would seem to make personal law unconstitutional. Furthermore, Article 15 also requires non-discrimination based on “sex”, whereas Muslim Personal Law favours the man in many cases, especially in the issue of extra-judicial divorce while both Hindu and Muslim personal law were agreeable upon the issue of polygamy. Equality before the law would essentially mean that Muslim women could take up to four husbands. These issues remained unresolved in the constitution. Unfortunately, the citizens of India have also been slow to recognize this flaw. Even women’s groups, who actively protest the unequal treatment of women under the Personal Laws of Hindus and Muslims only call for equal laws and equal rights, but stay from calling for the same laws for everyone.

Scope of UCC

  1. Marriage
  2. Divorce
  3. Adoption
  4. Guardianship/Child Custody
  5. Maintenance
  6. Successions
  7. Inheritance

Benefits of UCC

  • To promote gender equality
  • To regulate Polygamy/polyandry
  • To regulate/ban similar customary practices like maîtri Karar (Gujarati Custom of keeping mistresses circumventing the Hindu Marriage Act)
  • To grant legal sanction to marriage, adoption, succession, divorce, inheritance etc. so as to ensure fair process.

Manner of making a UCC

Personal Law and customary practices need to be so codified as to bring them in line with Fundamental Rights, Constitutional rights and other legislations. The radical view is to have a UCC replacing all personal laws.

Hindu Code Bill –first experiment towards Uniform Civil Code

On one hand the UCC was seeing a slow and cautious debate, while on the other hand, the Hindu Code Bill was rushed through, even before the Constituent Assembly could finish its job. Pt. Nehru must have thought probably, that it was better that the Hindu Code Bill was passed by the Provisional Government itself, before it entered the first General election battlefield, rather than waiting  for the Constituent Assembly to take it up where it would have been very difficult to comprehend the fate of the Bill. Therefore the Bill was introduced in the Constituent Assembly on 09th April 1948.[12] The Bill faced a ferocious objection from many segments outside the House and several protests were carried out throughout the Country. The person spearheading the campaign against the Bill was one Swami Karpatriji Maharaj who also at one point went on to famously challenge the then Prime Minister Mr. Nehru for open debate and contended that if Nehru proves that even a single provision of the Bill was in accordance with the Shashtras then he would accept the entire Code.[13] The Bill could not be passed by the Constituent Assembly and it became issue in the General Elections. Nehruvian charisma dominated the General Elections and Nehru formed the Government with a substantial majority.

The Bill was again introduced in the Parliament on 5th February, 1951 but this time the resistance to the Bill was from among the members of the Parliament, many of whom supported the Bill earlier; the electoral politics had made its first dent to the Legislative intent post-independence. The Bill was thereafter fragmented into separate Bills from 1952-57 thereafter the following legislations were finally passed: Hindu Marriage Act, 1950, Hindu Succession Act, 1956, Minority and Guardianship Act, 1956 and Hindu Maintenance Act, 1956.

Other Communities in Eternal Wait

Hindu Personal Laws were codified and supplanted by modern ideas and till date go through judicial and legislative scrutiny from time to time. These cover  majority of the population no doubt, but still a large number of people were left  in the grip of antiquated medieval Personal Laws and thus the debate on UCC was far from over. Probably it would have been better if steps had been taken towards the preparation, adoption and implementation of the UCC back then than it is now, as the society seems more fragmented and polarized today than it was back then. Nehru was very proactive in achieving the goal of codification of the Hindu Personal Laws,[14]but could not or rather did not, do the same for UCC.

Eminent Jurist, Justice M.C. Chagla (First Chief Justice of Bombay High Court after independence), expressed his dislike for this approach of Nehru. Chagla in his autobiography[15] has stated that the Constitution is equal for everyone and so are the Directives (Article 44) in the Constitution. Therefore the approach of Nehru to implement Hindu Code but “accepting the policy of Lassez-faire” in the case of Muslims and other minorities is not acceptable. One can justify Nehru’s approach by saying that he did so because he thought that he commanded a larger moral authority over Hindus than other minorities (because he himself was a Hindu) but this is not a well-placed justification as Nehru’s acceptability, post-independence, was second to none and as any scholar of Political Science might testify that in India the leaders of the minority communities have seldom been from the community.

This abdication on part of the highly popular Nehruvian Government was subjected to a scathing rebuke within the Parliament by B. Kriplani during the parliamentary debate on passing of Hindu Code Bill, 1955:

It is not the (Hindu) Mahasabhites who alone are communal; it is the government also that is communal, whatever it may say. It is passing a communal measure. I charge you with communalism because you are bringing forward a law about monogamy only for Hindu community. Take it from me that the Muslim community is prepared to have it but you are not brave enough to do it.”

Special Marriage Act, 1954 –escape from Personal Laws

The Personal Law is a complex web today. There are so many religions that are governed by their respective Personal Laws. Hindu Personal Law was codified and therefore there are many legislative instruments governing the same today. The Hindu Marriage Act, 1954, fixes minimum age for marriage as 18 years for girls and 21 year for the boys, further the Act does away with practice of polygamy and also provides for many progressive concepts like adding ‘cruelty’ (both physical and mental) as a ground for divorce. The Hindu Succession Act, 1956, has made path breaking changes concerning the law of succession of Hindus like providing equal sharing of property among the widow, son and daughter. The Hindu Adoption and Maintenance Act, 1956, allowed the adoption of girl child and also adoption of children of other castes. The Hindu Minority and Guardianship Act, 1956, provided for consent of wife before adoption. Hindu Maintenance Act, 1956, made it mandatory to provide maintenance to certain members of the family including wife. The Dowry Prohibition Act, 1961, the Child Marriage Restraint (Amendment) Act, 1976, and the Commission of Sati (prevention) Act, 1987, sought to do away with the notorious and regressive practices prevalent among the Hindus.

The Special Marriage Act, 1954 was also enacted in this turmoil. This enactment deserves a special mention in this article as this is a proxy for the UCC. The Act allows people to get married and register their marriage under this Act, thus taking marriage and all incidental aspects, out from the realm of different Personal Laws.

 

MAJOR ISSUES CONCERNING UNIFORM CIVIL CODE

Some of the burning issues which impact the growing need for a uniform civil code are

  1. Divorce – safeguarding the rights of Women (Triple Talaq)
  2. Right of Hindu Women to property (especially Ancestral property)
  3. Right of Christian Women to be granted divorce only after mandatory wait of 2 years
  4. Common grounds for divorce in addition to those recognized by the personal laws.
  5. Uniform age of consent for marriage across all personal laws and customary practices (age of puberty, voidable at the option of the wife)
  6. Maintenance to wife (denial, insufficiency of)
  7. Compulsory Registration of marriages
  8. Inter caste and inter religion marriages
  9. Succession
  10. Adoption
  11. Common education syllabus

Lethargy exhibited by Peoples Representatives in Union Parliament & State Legislatures

As stated above, Article 44 provides for UCC but the Article is part of Directive Principles of State Policy. The Courts made it very clear that they have no power to enforce the Directive Principles.[16]Further that the Directive Principles create no justiciable right on individuals and thus, no writ can be issued by the Court to enforce them.[17]With regard to the Legislature it was stated that it is a guide to them but creates no compulsion on them[18]and the Legislature cannot even legislate by virtue of the Directive Principles where there is no other enabling clause in the Constitution.[19]It is nevertheless a fact that Directive Principles are not toothless, and the approach mentioned above, has been academically criticized.[20] Probably in this light, a shift was seen in the judicial decisions in Mohd. Hanif Quareshi v. State of Bihar,[21]Balwant Raj v. Union of India[22],Chandra Bhavan Boarding & Lodging v. State of Mysore.[23] Finally in the landmark judgment of Minerva Mills Ltd. v. Union of India,[24] Supreme Court stated that the Directive Principles of State Policy are part of the basic structure[25] of the Constitution. Unfortunately, the Legislature that has the primary responsibility for enacting UCC, has not taken a single step in this regard.

 

The Hindu nationalists view this issue in concept of their law, which they say, is secular and equal to both sexes. In the country, demanding a uniform civil code can be seen negatively by religious authorities and secular sections of society because of identity politics.  The BJP was the first party in the country to promise a Uniform Civil Code, if elected into power.

JUDICIAL PRONOUNCEMENTS W.R.T. UNIFORM CIVIL CODE  

The Supreme Court of India has on several occasions visited UCC and even in absence of UCC has tried to safeguard the interest of the minorities among the minorities. In Ms. Jorden Diengdeh v. S.S. Chopra[26], the Supreme Court observed that there is no uniform law relating to marriage and divorce and the time had come for unification in terms of Article 44 for the laws related to marriage and divorce. However, while coming to the aid of individuals of various communities who become victims of the ill consequences of Personal Laws, the Supreme Court has, at times taken self contradictory stand with respect to the need for promulgation of a Uniform Civil Code.

The Shah Bano Judgment[27] – the case which pitted the Judiciary against the Executive and Legislature

Mohd. Ahmed Khan v. Shah Bano Begum, the much hyped ‘Shah Bano’ Case concerns the issue of maintenance of a Muslim wife after divorce.  The case rocked the Indian political landscape and was probably the most daring judicial intervention by the Supreme Court. The High Court on revision enhanced the maintenance from Rs. 25/- to Rs. 179.20/- per month and the Supreme Court rejected the appeal of the Husband. Supreme Court, after referring to many authorities and majorly relying on Section 125 of CrPC held that a Muslim woman is entitled to maintenance even after the period of iddat (which is a lunar period generally 90 days).

Though the basis of the judgment was Section 125 of CrPC, wherein criminal law is unified, this case is important because of its reference to the Uniform Civil Code and more so, because of the political prologue that followed. The judgment saw a huge outburst of emotions among many sections of the Muslim society. The newly elected Rajiv Gandhi government towed the line of the protestors and passed the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Contrary to the name, the Act took away the right of Muslim women under Section 125 of CrPC of maintenance and discriminated against them vis-a-vis women from other communities, who are protected under Article 125 CrPC. It is rather ironic that the step was taken by the so called secular Rajiv Gandhi Congress government, to appease the minorities. Ironically because of this dishonourable surrender to the ‘popular demand’ Mr.Arif Mohammad Khan[28]a senior Congress Leader from Uttar Pradesh quit the party. Probably, Pt. Nehru, rightly or wrongly, had wanted progressive leaders like Mr. Khan from within the Muslim community to take the initiative to bring their community under UCC. Leaving the analysis without quoting this extract from the judgment in Shah Bano (Supra) will not do justice to the present discussion:

It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. 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. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”

Danial Latifi & Anr. v. UOI – undoing Legislative Discrimination towards muslim women

The constitutionality and legality of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged before the Supreme Court in Danial Latifi & anr. v. UOI[29] wherein although the Act was declared to be constitutional, the Court interpreted the term, “reasonable and fair provision and maintenance” mandated to the divorced muslim wife under Section 3 (1)(a), as not limited for the Iddat period but extending for the entire life of the divorced wife unless she remarries, so as to make the provision non-discriminatory towards Muslim Women vis-à-vis the provisions of Section 125 Cr.P.C. Thus the Supreme Court did indirectly, what it was prevented from doing directly.

Sarla Mudgal v. Union of India – Conversion of married Hindus to Islam for marriage

In Sarla Mudgal v. Union of India,[30] the Supreme Court was examining the validity of bigamy when a Hindu converts to Islam to marry again. While holding such marriages to be void as per Section 495 IPC, the Court made rather strong and sharp observation with respect to Article 44 (UCC). The Court stated that post-independence the people staying back in India disregarded the two nation theory and accepted a secular state and in doing so they have given their consent to the Indian Constitution and thereby to the UCC.

Ahmedabad Women Action Group (AWAG) v. UOI – Polygamy criticized

While adjudicating on a PIL in Ahmedabad Women Action Group v. Union of India,[31]the Supreme Court came down heavily on the Personal Laws that stood against individual dignity and rights. Although the Court found certain aspects of Muslim Personal Law as void eg. Polygamy etc. being violative of Article 14 and 15, it refused to grant relief to the Petitioners as it felt that the proper forum to do so would be the Legislature.

Mary Roy v. State of Kerala –Christian daughters granted succession rights

In Mary Roy v. State of Kerala,[32]the Court held certain provisions of the Travancore Christian Succession Act, 1916 as void and thereby in principle followed the provisions of Indian Succession Act, 1956 bringing the daughters at par with sons in matters of succession.

State of TN v. K Shyam Sunder Uniform Education system

In State of TN v. K Shyam Sunder[33] the Supreme Court held that the Fundamental Right to Education guaranteed under Article 21A of the Constitution constitutes non-discrimination with respect to the quality of education and encompasses a common syllabus and common curriculum. The Supreme Court endorsed the state government’s propagation of the Uniform Education System and marked the same as the preparatory framework for the Uniform Civil Code. The salutary observation of the Court are extracted as under:

“22. The propagators of this campaign canvassed that uniform education system would achieve the code of common culture, removal of disparity and depletion of discriminatory values in human relations. It would enhance the virtues and improve the quality of human life, elevate the thoughts which advance our constitutional philosophy of equal society. In future, it may prove to be a basic preparation for the uniform civil code as it may help in diminishing opportunities to those who foment fanatic and fissiparous tendencies.”

ABC v. State (NCT of Delhi)guardianship of children born out of wedlock given to Christian unwed mothers

In ABC v. State (NCT of Delhi)[34] the Supreme Court of India noted that Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. The Court noted that Directive Principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation. On the same lines the Court observed as under:

“India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in the light of the tenets of the parties’ religion but in keeping with the legislative intent and prevailing case law.”

Shabnam Hashmi v. UOI – Personal Laws cannot dictate adoption under the Secular Law In Shabnam Hashmi v. UOI[35] the Supreme Court held that the Juvenile Justice (Care and Protection) Act, 2000 is a secular law and enabling legislation which gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, the Rules and the CARA Guidelines, as notified under the Act as opposed to being guided by their personal laws. Noting that the Act was a step towards attaining the goal of Uniform Civil Code the Court observed as under:

“To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by the principles of Personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a Uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.

Lily Thomas v. UOI – One Step Back

In Lily Thomas v. UOI[36] the Supreme Court perceived the issue of Uniform Civil Code as so sensitive that it clarified that the Court has not issued any directive in Sarla Mudgal (Supra) for the formulation of UCC but has merely made observations to that effect.

Prakash v. Phulavati –Winds of Change

In Prakash v. Phulavati[37], the Supreme Court while adjudicating upon the prospective applicability of amended Section 6 of the Hindu Succession Act, 1956 (w.e.f. 09.09.2005) took judicial notice of the PIL bringing to light the gender discrimination and absence of safeguards against arbitrary divorce of Muslim Women and second marriage of husband during the currency of the first marriage and directed that the case be separately registered and placed before an appropriate Bench. The Court referred to the judicial precedents wherein it had interfered with the personal laws which were violative of Fundamental Rights as under:

In Javed v. State of Haryana[38], a Bench of three Judges observed that practice of polygamy is injurious to public morals and can be superseded by the State just as practice of “sati”.[39] It was further observed that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on the ground of violation of Personal Law of Muslims.[40] In John Vallamattom v. Union of India[41], it was observed that Section 118 of the Indian Succession Act, 1925 restricting right of Christians to make will for charitable purpose was without any rational basis, was discriminatory against Christians and violated Article 14.[42] Laws dealing with marriage and succession are not part of religion.[43] Law has to change with time.[44] International covenants and treaties could be referred to examine validity and reasonableness of a provision.[45]

TRIPLE TALAQ – INDICATOR OF JUDICIAL PRAGMATISM OR CONSERVATISM

“Lafz-e-talakh sochiye kis kis ki haar hai
Sunte hai aasman main banti hai jo diyan.”- Jaleesh Sherwani

Before concluding this paper it is necessary to address the issue of, “Triple Talakh , which has occupied the headlines of national debates in a big way lately, and  has been made synonymously with UCC thereby confusing, disrupting, derailing and limiting the debate over UCC. Triple talakh is one aspect of Muslim Personal Law (even among Muslims it is not followed by all the sects) and has nothing to do with UCC. UCC is an effort to codify all the aspects of the Personal Law, including triple talak , to ensure that they are not  infringing upon individual rights. Further, the discussion should be put on hold, as the validity of triple talakh is presently sub judice before the Supreme Court[46] which has passed an order referring the issue to a Constitutional Bench that would decide upon the matter after looking into all the relevant authorities on the topic, along with the relevant provisions of the Constitution.

Triple talaq lets Muslim men get instant divorce by saying “talaq” three times while nikah halala bars a man from remarrying the woman after triple talaq, unless she consummates her marriage with another man, and her new husband dies or divorces her. The court is hearing a batch of petitions opposing triple talaq, after women complained that they had been divorced via Facebook , WhatsApp, telephone, newspaper notice and through post.

Inspite of the reservation expressed above about discussing the sub judice Triple talakh case, it is significant to highlight this one issue for any fruitful discussion about the UCC, for it is a glaring example of an apparent conflict between the Personal Laws of communities, with the Indian Constitutional ideals of gender equality and humane values. The pressing need for the formulation of UCC in the 21st century aspirational India will reinforce our constitutional values of Justice, Liberty, Equality and Fraternity and will strengthen  the sense of nationhood amongst all Indian citizens.

GOA – THE ONLY STATE WITH A UNIFORM CIVIL CODE

Goa is the only state in India which has a Uniform Civil Code. The Goa Family Law, which was originally the Portuguese Civil Code, continued to be followed even after Goa’s annexation by the Indian state in 1961. Sikhs and Buddhists objected to the wording of Article 25 which terms them as Hindus and has Hindu Personal Laws being applied to them. However, the same article also guarantees the right of members of the Sikh faith to bear a Kripan.

CONCLUSION

The debate for a Uniform Civil Code, with its diverse implications concerning secularism in the country, is one of the most controversial and sensitive issues in twenty-first century Indian politics. The major problems for implementing it are the country’s diversity and religious laws, which not only differ sect-wise, but also by community, caste and region. Women’s Rights Groups declare that this issue is only based on women’s rights and sense of security, irrespective of its politicization. The arguments for it are: its mention in Article 44 of the Constitution, need for strengthening the unity and integrity of the country, rejection of different laws for different communities, importance for gender equality and reforming the archaic Personal Laws of Muslims—which allow unilateral divorce and polygamy, infact, India is,  among the nations that legally apply the Sharia law.

It has been more than 67 years and the issue of UCC stands where it was at the time of the Constituent Assembly Debate. Successive governments have shied away from opening a meaningful dialogue over this issue, let aside take a decision. Politically this issue stands so polarized today that a mere mention of the word UCC stirs the secular v. communal debate. It is noteworthy to mention that the party in power today had UCC in its election manifesto for the larger part of its political existence.

It was thought that UCC cannot be forced on the minorities and it is the minorities themselves who have to take the decision was to when will they want a UCC to replace their Personal Laws. These apologists claim to defend minority rights forgetting that individual rights are being compromised every day, causing great mental, physical, emotional and financial misery to a large section of the community ,all equal citizens of Democratic India. As has been put by Ayn Rand, “The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities”.

The people at the receiving end are mostly the marginalized among the minorities, mainly women. But in the name of protecting the rights of the minority the decision on UCC has been stalled permanently. The mandate of the Constitutional provision (Article 44) should not have been selectively implemented as it not only tears through the secular fabric of the country but also denies equal rights to many from the minority community. Mr. Arun Jaitely has rightly observed that “Personal laws cannot practice and propagate discrimination, they cannot compromise with human dignity.”[47]And if this is the intention of the Government, one can be hopeful that substantial steps will be taken with respect to UCC soon.

Recently the discussion over UCC has again come to the forefront post an observation made by the Hon’ble Supreme Court (Supra). Following this, the Law Commission of India circulated a questionnaire[48] regarding the UCC, as an initiative to gauge a general consensus among the public over the issue. The effort is commendable considering that it is probably the only step taken by the State or its instrumentality with respect to UCC ever. The major problem with recent debate over UCC is that one cannot discuss it without a ‘model law’ otherwise any discussion will be derailed due to unfounded apprehensions and endless speculations about UCC. The UCC can have drastic changes to the present Laws governing Hindu Personal Laws on the one hand, while on the other hand, it can replace the present system among various minorities; such a UCC might face resistance from both the majority and minority community. Therefore, it would be practical if the Government establishes an Empowered Committee (using institutions like the Law Commission), with representatives from every community and then prepare a Draft Law. Such a Draft Law can be then circulated for suggestions amongst all the stake holders, specifying a time frame for discussions and adoption and framing of Law by the Parliament. Unless taken up in a methodical manner and brought to a logical conclusion, discussions on UCC will come to naught. As common citizens of this great country, let us positively support at all levels and forums, the Courts and Governments efforts for a Uniform Civil Code. Jai Hind!

[1] Advocate-on-Record, Supreme Court of India & Partner, FLAGG

[2] Advocate, Supreme Court of India and Senior Associate FLAGG

[3] Former Reader and Head of Department, History, Nirmala College, Ranchi

[4] AIR 1994 SC 1918

[5] AIR 1995 SC 605

[6] Article 123, 239B, 240

[7] Article 213

[8] Article 141, 32

[9] Article 226

[10] By the 7 judges Hon’ble Supreme Court in The Commissioner, Hindu Religious Endowments, Madras V. Sri LakshmindraThirthaSwamiarOf Sri Shirur Mutt, 1954 SCR 1005.

[11]That were already accepted by the Constituent Assembly by then.

[12]http://www.outlookindia.com/website/story/nehru-and-the-hindu-code-bill/221000  last accessed on 02.04.2017 at 02:00 pm

[13] India After Gandhi: The History of the World’s Largest Democracy by Ram Chandra Guha, Picador India, 2008 at pg 233-234.

[14] In fact for anyone who is interest in the issue of UCC he/she must read the speech made by Mr. Nehru in Parliament on 5th May 1955 in support of the Bill; LokSabha Debates, Vol. IV, part 2, 22nd April to 7th May, cols 7954-68, has been reproduced in Makers of Modern India by RamchandraGuha, Penguin Viking, 2010, pg. 363 to 369. The speech though made in support of the Bill has equal resonance on UCC and to encapsulate the essence of the speech it is necessary to quote form the speech:

“The Point is, it is very unfair to quote Manu or Yagnyavalkya or anybody else to be brought in as a witness as to what should be done in the present conditions of India. The conditions are completely and absolutely different. I admit that there should be, and there are, undoubtedly, certain principles of human life which, normally speaking, do not change and should not change. There are certain bases of human life. But, in adapting them in legislation and other things, you have to consider the conditions as they are and not as they were 1000 or 2000 years ago….”

[15]Roses in December an autobiography by M.C. Chagla, BhartiyaVidyaBhavan, 2012 at pg.85.

[16]RanjanaDiwedi v. Union of India, AIR 1983 SC 624.

[17]Lily Thomas v. Union of India, AIR 2000 SC 1650 at 1669.

[18]Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 649 at 664.

[19] Farm NusserwanjiBalsara v. State of Bombay, AIR 1951 Bom 210. See also KolutharaExposrts Ltd. v. State of Kerala, (2002) 2 SCC 459.

[20]  P.K. Tripathi, “Directive Principles of State Policy: The Lawyer’s Approach to Them Hitherto, Parochial, Injurious and Unconstitutional”, 17 SCJ 7 (1954).

[21]AIR 1958 SC 731.

[22]AIR 1968 All 14.

[23](1969) 3 SCC 84.

[24](1980) 3 SCC 625 at p. 654, para 56.

[25]Holiness KesavanandaBharatiSripadagalvaru and Ors.v. State of Kerala and Anr AIR 1973 SC 1461.

[26](1985) 3 SCC 62.

[27] Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 (5 Judge Constitution Bench)

[28]Twice MP from Congress.

[29]( 2001) 7 SCC 740

[30](1995) 3 SCC 635.

[31](1997) 3 SCC 573.

[32](1986) 2 SCC 209.

[33] (2011)  8 SCC 737

[34] (2015) 10 SCC 1

[35]  (2014) 4 SCC 1

[36] (2000)  6 SCC 224

[37]  (2016) 2 SCC 36

[38] (2003) 8 SCC 369

[39] Ibid at p. 391 pr. 6

[40] Ibid at pr. 54-59

[41] (2003) 6 SCC 611

[42] Ibid at prs. 28-29

[43] Ibid at pr. 44

[44] Ibid at pr. 33 to 36

[45] Ibid at pr. 30-32

[46]http://timesofindia.indiatimes.com/india/supreme-court-sets-may-11-19-to-finish-hearings-on-triple-talaq/articleshow/57928444.cms  last accessed on 02.04.2017 on 02:15 pm

[47]http://www.timesnow.tv/india/video/excl-arun-jaitley-presents-governments-stand-on-uniform-civil-code/50564  last accessed on 02.04.2017 at 03:00 pm.

[48]http://lawcommissionofindia.nic.in/questionnaire.pdf last accessed on 02.04.2017

Leave a Reply

Your email address will not be published. Required fields are marked *