In the past few weeks, the debate on ‘uniform civil code’ has revived in the country. It would be recalled that in the 1950s, soon after Independence, a Hindu Code Bill was enacted, bringing a large degree of uniformity to a number of customs, practices and legal aspects of personal affairs, hitherto of wide diversity and variance. There is now a common personal law for the Hindus relating to such important issues like marriage, divorce, succession, inheritance and the like. This was achieved despite opposition from many quarters and segments of Hindu society; in retrospect, over the past three or four decades, these issues are now well settled in law, custom and common practice.
Article 44 of the Constitution expressly directs that the State shall endeavour to bring a Uniform Civil Code throughout the country; Jawaharlal Nehru at the time of Hindu Code Bill debate, saw it as the first step in securing a full national identity for the citizen. The issues really relate not so much to caste or community, but to the uniform status of the individual in society, and in particular to the place of women in a generally male-dominated society. Personal laws ought not to divide the citizens based on considerations of community etc.; the separate identities of caste, religion and ethnicity are gradually to be submerged to one of national identity—this was the impulse that guided Article 44. Alas, the word ‘secular’, which would imply a uniformity in personal laws, has been subverted in the past few decades—ironically and tragically, it has mostly been used to cynically exacerbate communal issues for vote bank purposes rather than contribute to national identity.
All Indians now have a common criminal law—the IPC and CrPc— which are uniformly applicable. ‘Personal’ law for the communities, however, differs, one common denominator being the generally discriminatory gender adverse treatment of women. Why should the norms for divorce, say, be different for a Hindu compared to a Christian —is this a matter of personal law or religion? In the Shahbano case, a callous Central government, clearly with electoral considerations in mind, short-changed the maintenance rights of divorced Muslim women, overturning a sensible and humane Supreme Court verdict. Why should a divorced Muslim woman not have equal maintenance rights under the law as those from other communities? Why cannot a woman coparcener be a ‘karta’ in an HUF? Why should there be separate ‘laws’ for Catholic or protestant Christians in respect of marriage, divorce or inheritance? Issues such as birth control, abortion, adoption regulations are emotive, to be handled with delicacy and understanding, but ought to be non-discriminatory between castes and communities. If a person changes his religion, should his personal laws also change? One may surmise that in other multi-ethnic, multi-community societies, no discrimination is to be made based on caste, community or religion—that is the premise of our secular Constitution.
It has been speciously argued that Article 25, which confers right to religion, militates against a common civil code. This is not valid. Right to worship or to religion is not to be confused with personal issues relating to inheritance, marriage etc, which are secular in nature. Indeed, the thrust of any change should not emerge from the religious or political perspectives —the mainspring really is improved position of women in society, as well as emergence of a common national identity. For too long, we have looked at ourselves through the prism of caste, community or religion—surely we cannot continue to think of ourselves this way for the next 100 years. Indianness is the exclusive attribute of citizenship, not subsidiary labels.
It is not as if the personal laws of various religions are inviolately preserved, in toto. The Sharda Act, for instance, forbids child marriage and is applicable also to Muslims today in India despite its implicit sanction in Muslim personal law. Many of these personal laws are imported into the country from earlier centuries, from different continents, which continue incongruously in the 21st century in India. Thus why should four wives be allowed—if four are permitted, why not 40? The law may reflect the social conditions and population characteristics in the Middle East of the 17th century—surely it is unjustified for India today. The khap panchayats cannot override the national criminal and civil codes. A uniform civil code may not touch every aspect of personal life; the residuary may still be available for interpretation by authorised clerics. A recent Supreme Court judgment has declared that fatwas cannot override national laws—self-evident in a secular democracy.
The move is not to have a new uniform national Hindu code; the new code should encompass the major personal elements relating to all Indians. Great care should be taken to ensure that the advance is not driven by religious or partisan considerations; the purpose is to have the same general laws applicable to all, equally to upgrade the status of women in society. This is a laudable objective, to be taken forward with sensitivity and due care, nevertheless firmly.
tsrsubramanian@gmail.com