Uniform Civil Code–A Critical Study

Uniform Civil Code–A Critical Study

1996 9-10 September-October 14-21 Uniform Civil Code–A Critical Study (2619) Even prior to independence, the concept of a uniform civil code was the subject of discussion. Attention is still focussed on this concept, but it is now seen in the larger context of the Constitution of India. (Article No. 44, Uniform Civil Code.) Because of its length and complexity of the constitution, ordinary citizens are baffled by it, and only the legal experts take recourse to it in times of need. The constitutions of most of the developed nations of the modern world are extremely brief. For instance, the constitution of the USA, consists of only 7,000 words. Similarly the constitution of Japan, another highly developed country, is very brief. But the revised constitution of Georgia, an underdeveloped nation, consists of 500,000 words. (Encyclopedia Britannica, 5/85-86)

The excessive bulk of a constitution results largely from the inclusion of unnecessary articles. Article 44, concerning a common civil code, which comes under the Directive Principles of the State Policy is one of these. This states that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. This clause is as unconstitutional as saying that the state should attempt to bring about a uniform menu or dress code for all the citizens of the country. The task of the constitution should be to make explicit the fundamental principles on which state policy ought to be based. The idea of a common civil code for the whole country has a long history. It was proposed by Moti Lal Nehru in 1928 in Nehru Report. The ulama of that time strongly opposed it. British government refused to accept the report, as it proposed dominion status for India, which was unacceptable to the British. Again in 1939 it was rejected by the congress in Lahore on the ground of its impracticality.

Since 1985, the issue of a uniform civil code has assumed a new dimension with Supreme Court judges beginning to refer to it in their judgements. In his well known judgment in the Mohammad Ahmad-Shah Bano case, Justice Chandrachud felt the need to remark that the enactment of law under Article 44 of the constitution was the demand of the time, as he thought that a common civiI code would help the cause of national integration. In May 1995 the two-member division bench of the Supreme Court, Justice Kuldip Singh and Justice R.M. Sahay in their judgment said: “To introduce a uniform Personal Law (is) a decisive step towards national consolidation ... There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country” (p. 22). In clause 37 it is clearly stated that the clauses in that part of the constitution are not enforceable by any court of law; they are entirely related to the government and the state. In such circumstances, tampering with Article 44 by Supreme Court judges is inappropriate.

It will be interesting to know what our three former Prime Ministers had to say on the subject. Pandit Jawahar Lal Nehru, said, “I do not think that at the present moment the time is ripe in India for me to try to push it through.” Mrs. Indira Gandhi expressed the same view in her time, and so did, Mr. P.V. Narasimha Rao (The Hindustan Times, The Times of India, July 28, 1995). How strange it is, that those who are empowered to put the uniform civil code in practice are not in the least interested in doing so, while those who have no authority are vociferously demanding its enactment.

Article 25 exists to contradict Article 44. According to Article 25, “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” Furthermore, Article 25, granting religious freedom, appears in that part of the Constitution which deals with the fundamental rights of citizens, whereas Article 44 appears under directive principles. And, according to Clause 37 of the Constitution itself, the clauses under directive principles are dependent upon the clause on fundamental rights. In such circumstances, referring to Article 44 to support a demand that the government legislate on the enforcement of a uniform civil code is against the spirit of the Constitution itself. As long as a group in the country exists which holds such enactment an unjustifiable interference in its religion, it is not constitutionally possible to make such a law. If the parliament were to enact such a law and a religious group in the country appealed against it in the Supreme Court, the court, as guardian of the Constitution, would certainly have to nullify it.

Article 14 of the universal Declaration of Human Rights issued in 1948 by the United Nations, of which India too is a member. This declaration guarantees that every person will enjoy religious freedom, including the freedom to change his religion and follow the religion of his choice. India in signing this declaration, has, as a nation, set its seal of approval on it. Religious liberty, therefore, becomes the right of every Indian citizen.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. While Article 25 guarantees religious freedom. Article 44 seeks to separate religion from social relations and personal law. According to the consensus of scholars of all religions, religion is positively related to three things: faith, worship and ethical values. Marriage is definitely an ethical issue and therefore an integral part of religion. When marriage and divorce are matters of religion, according to Article 25 of the Constitution, neither Parliament nor any other institution enjoys the right to snatch this established right from any group against its will.

The advocates of Uniform Civil Code claim that it would produce a beneficial sense of togetherness, which, in turn, would be conducive to bringing into existence a sense of nationhood. What they forget is that conflicts within the community are more rampant than between the communities. We learn, therefore, as concluded by the Supreme Court’s judges themselves, the actual problem is not one of the enforcement of a common code; the problem is that such enforcement is not producing any positive results. Various communities in the country lived together harmoniously, without a common civil code, maintaining their own cultural identity and marrying according to their own religious traditions. The balance of Indian society was disturbed not by the absence of a common code but by the policy of the former British Government i.e. divide and rule. The discord created among two communities by the British lingers on. This is the real cause of the absence of common feeling and not the absence of Uniform Civil Code.

As the events both past and present show Uniform Civil Code is no guarantee against internal strife. Kauravs and Pandavs, despite having the same civil code, waged a large-scale war against each other known as the Mahabharat. In the first WorId War (1914-18) Germany and Italy were on one side, and Britain and France on the other. Both these parties belonged to the same religion -Christianity. Both followed the same ‘civil code,’ but this legal uniformity did not prove to be a deterrent to waging a war among themselves. In Punjab, the rift between two communities following the same civil code is too well known. In the courts, tens of thousands of Indians are fighting legal battles against one another, though they adhere to the same civil code.

The truth is that the inability of a uniform civil code in bringing about harmony and unity between people has already been established beyond doubt. There is just no need to put it to the test once again. Totally rejecting the concept of the common civil code, Mr. Balraj Puri writes:

‘There is absolutely no logical connection between uniformity and reform – Have not caste-based identities been recognised in the MandaI principle and all identities, cultural, tribal, caste and religious acquired political legitimacy? Why does the honourable judge single out the claim of a religious community for a distinct identity? It defies logic and the socially and politically accepted reality.’

On 20 August 1972 in a special interview with the Organiser Shri M.S. Golwalker, Saranghachalak of RSS, referred to the question of a uniform civil code, and said that such uniformity was not necessary in itself; Indian culture permitted diversity in unity. He said, ‘For unity, we need harmony, not uniformity. We in this country have millennia of experience. We have a tested way of life. And our experience is that variety and unity can, and do, go together. Uniformity is the death-knell of nations. Nature abhors uniformity. I am all for the protection of various ways of life.’

The uniform civil code is an impracticable dream. Evidence to support this view exists in the Constitution itself. Article 44 of the Constitution states that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. But an amendment to the same Constitution makes this exception: “No Act of Parliament in respect of religious or social practices of the Nagas, their customary law and procedure, shall apply to the state of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.” Obviously these clauses are contradictory.

The Shah Bano case, the aim of which was apparently to mete out justice to women. But the practical result was totally different. The Bharatiya Janata Party was then quick to exploit this issue for its own political ends. According to the Hindu Code Bill of 1955, a Hindu is allowed to have only one wife, the Indian census report of 1961 showed that the percentage of Hindus having more than one wife was more than that of Muslims. The abundance of reform laws has only proved counter-productive. Disputes and strife have greatly increased, and corruption is having a heyday. Obtaining justice has become the most difficult of tasks and the plight of women has, if anything, worsened. This state of affairs calls for finding new strategies to reform society rather than just adding to the number of laws. Making new laws in no way serves as a check against the misuse of old laws. There are laws and regulations to stop tax evasion: nevertheless, tax evasion continues on a very large scale.

Article 44 of the Constitution has no legal meaningfulness or ethical value. It was just a piece of imagination of certain minds. It should be eliminated from the constitution through another amendment. No harm would come from such a move. Our Constitution would rather be relieved of burden.

Two different political groups in India have tried to mould the country along the lines of their own thinking. One favours secular ideology, and the other Hinduism. The ideas of each are totally different from one another yet both are in agreement that India should have a common civil code for all. Can there be a greater paradox?

Secularism means opting for a policy of non-interference by the state in matters of religion. It is along these lines that the Constitution of India has been framed. The other group should know that attempts to bring people belonging to various groups under the same civil code is against its own cherished concepts. The basic principle of Hindu ideology is sarva dharma sambhava, that is, all religions are true. One of the fundamental attributes of Hinduism is belief in unity in diversity. Hinduism thus believes in seeing oneness in manyness. It, therefore, goes against the Hindu point of view to attempt to enforce a single civil code by eliminating the personal laws of various groups. The truth is that uniformity in these matters has to do with human history rather than with the law. If through the historical process, a uniform culture comes into existence in a society, a uniform code too will follow. Legislation must follow upon and be in consonance with “ natural trends.

These extremist elements, in a very well-considered move, are disseminating false propaganda that the population of Muslims is increasing at a very rapid pace and that, as a result, by the first half of the next century, Muslims will be in the majority and Hindus will be reduced to a minority in their own country. Painting this frightful picture propagandists are building their vote bank among the Hindus. Birth rates are based on the number of child-bearing women in a society, not on marriages or types of marriages. As Muslim men can marry four women only when the number of women is four times the number of men. But in present-day Muslim society, women do not outnumber men, nor is there any factory to produce women! According to the report of the National Commission on the Status of Women, polygamy is actually less frequent among Muslims than in other communities.

Among Hindus themselves there is no single set of marriage customs. There are hundreds of groups and each performs marriage according to its own family or regional customs and traditions. Almost all Hindus still solemnise their marriages through religious customs, although they are free to choose a civiI procedure under the Special Marriages Act of 1954. It is so because marriage belongs to the realm of extremely private matters, in which every community always follows its own family or community traditions and rites.

What is actually needed to make India a united, peaceful and developed country is national character. A national approach is just the opposite of a personal approach. In the latter, importance is attached to individual interests rather than national interests. Whenever there is a clash between the two demands, ideally, individual interest ought to be subordinated to national interest. True patriotism is essential for the advancement of the country. But this is the very thing which does not exist in our country. Patriotism can never be produced from superficial steps like adopting a common civil code. People’s thinking will rather have to be turned in a constructive direction. For this we shall have to educate the public by availing all resources. We shall have to launch an ongoing and extensive campaign of intellectual awakening and awareness. This is undoubtedly a monumental task.

One of the clauses under the directive principles of the Constitution states:

‘The state shall endeavour to provide within a period of ten years from the commencement of this constitution, for free and compulsory education for all children until they complete the age of fourteen years.’ This clause is possibly the most important of all clauses under the directive principles, yet we find that this is the clause which has received the least attention. The Supreme Court has never felt the need to ask the government why it has failed to enforce this clause, even after a period of half a century. The importance of education is so great for the purpose of building the nation that, in comparison, the matter of a common civil code is simply a non-issue. In such a state of affairs our single point programme should be to provide cent per cent education to the population of the country. Its actual importance is that it creates awareness, intellectual awakening. It develops right thinking. Right thinking brings about farsightedness among the people. It tells them how to deal with differences. It gives people the maturity to turn their disadvantages into advantages and differentiate between the good and the bad.

Ten years ago when the Supreme court passed a judgement in the Shah Bano Case Muslims all over the country protested, through rallies and procession which directly benefited the extremist Hindu elements of the country. They need to exercise better judgement and avoid the same mistake, at all cost.