By Soumik Chakraborty
Editor’s Note: A liberal, forward-looking uniform civil code may be expected to win many adherents, especially from those with cross-cultural backgrounds. The paper is a short analysis of this topic.
Arthur M Schlesinger, historian, political advisor and Pulitzer-winning author, wrote in his landmark book The Disuniting of America: Reflections on a Multicultural Society: “To consciously use history to uplift one group by disparaging another is to use history as a weapon. Rather, the ‘purpose of history is to promote not group self-esteem, but understanding of the world and the past, dispassionate analysis, judgement, and perspective, respect for divergent cultures and traditions, and unflinching protection for those unifying ideas of tolerance, democracy, and human rights that make free historical inquiry possible.”
His book was widely criticised for being undemocratic by liberals. In the book, he argued that a liberal democracy requires a common basis for culture and society to function. He rightly argued that basing politics on group marginalization fractures the civil polity, and therefore works against creating real opportunities for ending marginalization.
Politics of our nation has become so entrenched in appeasement of specific sections of the society that the State can no longer protect our fundamental right of free speech and expression. Appeasement has gradually taken away tolerance leading to a complete disregard for the law of the land. What we have is vested interests that perpetually repress minorities, disenfranchise and de-motivate a majority of people and kill meritocracy, leading to a divided society and flawed incentive system.
At the Telegraph-Calcutta Club National Debate on March 13th 2005, Fali Nariman with a wry sense of humourhad said that “I am not a Hindu, I am not a Muslim. I am merely a poor fish in a shoal of sharks.” And he goes on, “And sadly, we are now an endangered species.” He plays to the gallery when he says, If India was to be secular, the capital should have remained Calcutta. Women, whether Hindu or Muslim, are oppressed in India, not because one has a codified set of rights, and the other does not, but because women are being oppressed by men in all levels of the Indian polity. He relates the story of how the Parsi intestate laws of the 1890’s became gender-neutral only in 1991, after intense debate and consensus within the community. The minorities are particularly sensitive to externals who wish to interfere in the way they govern themselves.
Uniform Civil Code
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe. Such codes are in place in most modern nations.
Article 44 of our Constitution recommends, “The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India.” This was drafted as a recommendation so as to allow the State some time to integrate and unite the country after Independence before moving on to civil reforms. There was a reasonable apprehension that an iron fist approach to enforcing a common civil code may lead to widespread religious unrest and possible disintegration of a fragile union.
The common areas covered by a civil code include laws related to acquisition and administration of property, marriage, divorce and adoption.
This term is used in India where the Constitution of India attempts to set a uniform civil code for its citizens as a Directive Principle, or a goal to be achieved.
In India, most family laws are determined by the religion of the parties concerned. Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. Muslim law is based on the Sharia. The personal laws of other religious communities were codified by an Act of the Indian parliament. Other sets of laws such as criminal laws and civil laws on contract, evidence, transfer of property, taxation were also codified in the forms legislation.
Law cannot afford to be selective in application. It has to be general and uniform unless the area of operation of a particular law or the people it deals with are distinguishable from others and such distinction has reasonable connection with the purpose of the law in question.
If any law or body of laws violates this basic condition, it would, sooner or later, face resistance on moral or social grounds, if not strictly on legal ones.
In the much-talked-about Shah Bano case[i] the Supreme Court held that Section 125 of the Code of Criminal Procedure (CrPC), being a secular provision was applicable to all and therefore in accordance with it the husband was bound to maintain his wife so long as she does not remarry. The Court lamented that the legislature had turned a blind eye towards Article 44.
Under tremendous political pressure the then Prime Minister Rajiv Gandhi, tried to get around the Supreme Court judgment in the Shah Bano case by enacting Muslim Women (Protection of Rights) Act, 1986, whose constitutionality came under challenge in Daniel Latifi case.[ii].
The Supreme Court applied the doctrine of harmonious construction and construed the enactment very much in line with its Shah Bano judgment. The position, therefore, is that a Muslim woman is entitled to fair and reasonable maintenance under Section 125 of the CrPC so long as she remains unmarried after the divorce.
Despite the desirability of a uniform code, the Supreme Court cautioned in Pannalal Bansilal Patil v. State of Andhra Pradesh,[iii] that the enactment of uniform law for all persons “in one go may be counterproductive to the unity of the nation.”
Not only did the Shah Bano case[iv] challenge Muslim personal (Sharia) law, it triggered a debate and paved the way for Muslim women’s fight for justice. Shah Bano, a 62 year old woman from Indore, was divorced by her husband in 1978. Unable to support herself and her five children, she moved the courts to be granted maintenance from her ex-husband. Seven years and several judgments later, the Supreme Court ruled in favour of granting Shah Bano alimony. Largely seen as a threat to Sharia law by some Muslims, what followed a debate over the constitutionality of including different marriage and personal laws for different religion, and resulted in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by the government.
The Shah Bano Case is one of the most important and controversial cases in Indian personal laws. Here are five reasons why it is such a landmark case:
- Triggered the Muslim woman’s fight for Justice
In India, a Muslim woman is perceived as obedient to the dictates of her religion and community. For a Muslim woman to question the Islamic law and fight for alimony in court for justice was unheard of. By claiming what she believed to be rightfully hers, she challenged the beliefs of a religion and the way it was interpreted by the society, the religious leaders as well as the entire socio-legal system that prevailed in the country
- Bold Ruling by the Supreme Court
Typically, Muslim personal laws are interpreted by considering it in light of the principles of Islamic law. The case threw open wider issues pertaining to a Muslim woman’s security and dignity in a marriage.
- Debate and Discussion in the Country
The whole country discussed and debated about the Shah Bano case because nothing so staggering had ever happened before. There was a mixture of reactions to this ruling that awoke the nation’s conscience at large. From anger to shock to disbelief and to downright rage, this case brought together a variety of cultural responses from India’s diverse population.
- Enactment of the Muslim Women (Protection of Rights on Divorce) Act 1986
Few Acts have been so quickly passed as did The Muslim Women (Protection of Rights on Divorce) Act 1986. The Act came under extreme criticism as a majority of non-Muslims perceived it as a clear symbol of political appeasement at the time of elections. The new Act stated that the Muslim husband is liable to pay alimony only during iddat (the span of 3 months after the divorce). It also stated that if a divorced woman has no relatives to take care of her or she has no way to take care of herself, the magistrate has to order the State Waqf Board to provide support to the woman and her children.
- Personal Laws can be Political Battlegrounds
The Shah Bano case taught the country that personal laws can become political battlegrounds because religions influence personal law. In cases that challenge personal laws, it becomes nearly impossible to delineate the historical, personal and political elements from each other as they are all seamlessly woven into one entity.
The Supreme Court was petitioned on many occasions regarding Uniform Civil Code, but it has refused to interfere in the domain of the legislature through judicial verdicts.
However, it has, time and again, reminded Parliament and the government of the existence of Article 44 and the constitutional obligations of the State towards the provision, the last being in the Sarla Mudgal[v] case.
In S.R Bommai v Union of India[vi], it was held by Justice Jeevan Reddy that religion was a matter of personal faith and cannot be mixed with secular activities. The State may regulate secular activities by the enactment of laws.
A uniform code has been wrongly posited as an assault on religion and religious identities. What it essentially aims at is secular reform of property relations in respect of which all religious traditions have grossly discriminated against women. A uniform civil code is, therefore, foremost a matter of gender justice. But male chauvinism and greed have joined with religious conservatism to forge an unholy alliance to perpetuate a major source of gender discrimination thereby impeding the modernization of social relations and national integration.
A uniform code has been wrongly posited as an assault on religion and religious identities. What it essentially aims at is secular reform of property relations in respect of which all religious traditions have grossly discriminated against women. A uniform civil code is, therefore, foremost a matter of gender justice.
A uniform civil code will focus on rights, leaving the rituals embodied in personal law intact within the bounds of constitutional propriety. Being optional, it will provide free choice and facilitate harmonization of social relationships across the country in keeping with the changing contours of emerging societal realities. A uniform civil code should not be constructed, as sometimes suggested, by putting together the best elements from various existing personal codes. This will invite contention. It is far better that a uniform code is framed de novo by somebody like the Law Commission, in consultation with relevant experts and interests, as a citizens’ charter governing family relations.
A liberal, forward-looking uniform civil code may be expected to win many adherents, especially from those with cross-cultural backgrounds. This could in time induce custodians of faith to look inwards and seek to codify and reform age-old personal laws in conformity with current modernizing and integrative tendencies or risk losing their flock.
If the Centre is unwilling to move forward, there is no reason why some progressive States should not take the lead as they have done in the case of legislating Freedom of Information Acts. A national uniform civil code could follow. Goa has shown the way and there is absolutely no reason for delay. A secular India needs a uniform civil code. To mark time is to march with the communalists.
Formatted on 1st March 2019.
[i](Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945)
[ii][(Daniel Latifi v. Union of India, (2001 7 SCC 740))
[iii](1996) 2 SCC 498
[iv][1985 AIR 945, 1985 SCC (2) 556]
[v] (1985 AIR 945, 1985 SCC (2) 556)
[vi](1985 AIR 945, 1985 SCC (2) 556)