Uniform civil code: Why and why not

There are pressing reasons in its favour, but on the other hand there are questions too…

CK Mathew | July 10, 2017


#Triple Talaq   #Shayara Bano   #Shah Bano   #All India Muslim Personal Law Board   #Supreme Court   #Uniform Civil Code  


The debate, arising out of the apprehensions regarding the imposition on our country of a code of conduct prescribed by the nationalist right-wing elements of society which has so far described itself as a proud, plural and diverse society, is not new. It is closely related to the movement for the creation of a Uniform Civil Code for the country that has been debated and discussed for over a hundred and fifty years in public and political discourses.

Developments before and after Independence

In the colonial times, women’s organisations increasingly protested against the gender discrimination and this led to a spate of laws passed with respect to the Hindus which were beneficial to women, such as the Hindu Widow Remarriage Act of 1856, Married Women’s Property Act of 1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman's right to property1.  Also, the Hindu Women's Right to Property Act of 1937 was a significant step for assuring rights to women. The growing tide of legislation that delved into personal issues of ordinary men and women of the country generated debate and controversy and required a reasoned and measured response from the government of the day.
This finally led to the setting up of the BN Rau Committee whose task it was to examine the question of the necessity of common Hindu laws. Rau was an Indian civil servant, jurist, diplomat and statesman known for his key role in drafting the Constitution of India. Under his chairmanship, the committee recommended the constitution of a uniform civil code, which would give equal rights to women in keeping with the modern trends of society. However, it must be mentioned that its focus was primarily on reforming the Hindu law in accordance with the scriptures. The committee reviewed the 1937 Act and recommended a civil code of marriage and succession. The Committee was reconstituted once more in 1944 and finally sent its report to the Indian Parliament in 1947.

After independence, parliament, in two sessions during 1948-1951 and 1951-1954, had intensive debates on the cantankerous issues and thoroughly discussed the report of the Rau committee. The first prime minister, Jawaharlal Nehru, dreaming of a socialist country where all were equal, and akin to the Soviet Union he admired, as well as his supporters and women members wanted a uniform civil code to be implemented.  

Decoding the Hindu Code

The Hindu Code prepared in this context had the stamp of Dr BR Ambedkar as a radical thinker who had criticised Hindu law on many an occasion. The draft bill received much criticism and the main provisions opposed by the critics pertained to monogamy, divorce, abolition of coparcenaries (women inheriting a shared title) and inheritance to daughters. The first president of the country, Rajendra Prasad, opposed these reforms. Other critics included Sardar Patel, a few senior members and the Hindu fundamentalist parties. The fundamentalists called it "anti-Hindu" and "anti-Indian". In order to deliberately stall the proceedings, they demanded a uniform civil code applicable to all religions and not only for the Hindus2 . The women MPs, who had previously thrown in their weight with the fundamentalists, and probably influenced by Nehru, in a significant political move reversed their position, and backed the Hindu law reform; they feared that publicly allying with the conservative and fundamental Hindu group would cause a further setback to their rights and seriously damage their future attempts to gain equality with their men folk in all other matters.

Ultimately, a lesser version of this bill was passed by parliament in 1956, which while excluding non-Hindus from the ambit of the reform, brought into the law books four separate acts, namely the Hindu Marriage Act, the Hindu Succession Act, Minority and Guardianship Act and the Adoptions and Maintenance Act. In a gesture to indicate the willingness of parliament to consider the issue of a uniform code at some later point in time, it was decided to add the implementation of a uniform civil code in Article 44 of the Directive Principles of the Constitution specifying, “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” This was opposed by progressive women members like Rajkumari Amrit Kaur and Hansa Mehta. Was it a step down for the Nehru government? Or did the compulsions of real politick make this adjustment necessary? Aparna Mahanta writes that the “failure of the Indian state to provide a uniform civil code, consistent with its democratic secular and socialist declarations, further illustrates the modern state's accommodation of the traditional interests of a patriarchal society”.3

Arguments for and against

The arguments for and against a uniform civil code, with its immense implications for all religions and communities, combined with the undeniable impact on issues pertaining to the secular nature of this country, is one of the most controversial issues of current Indian politics. The plural and multi-religious nature of the country and its religious laws, with differentiation not only in caste and religion, but even in region and sects, further complicates the issue. Women's rights groups have argued that this is not so: the only issue is the protection of their rights and security, irrespective of religion and the possibility of its misuse by political groups.4 

It cannot be denied that there are compelling arguments in its favour, not the least of them being that it finds mention in the list of Directive Principles of the Constitution. The need for strengthening the unity and integrity of the country, the rejection of varying laws and their varying entitlements for different communities, along with inherent contradictions for a democratic and secular country, is another irritant. Its importance for gender equality cannot be denied. And most significantly, the imperative for reforming the archaic personal laws of Muslims, which allow unilateral divorce and polygamy, cannot be ignored.

The Hindu nationalists view this issue in the light of the concept of their laws enshrined in the four Acts collectively called the Hindu Code, which they say, is secular and equal to both sexes. The Sangh Parivar and the Bharatiya Janata Party (BJP) had taken up this issue to gain Hindu support. The BJP was the first party in the country to promise it if elected into power.

Be that as it may, in October 2015, the supreme court asserted the need for a Uniform Civil Code. It made certain pronouncements recently in two cases that make it amply clear that the apex court is in favour of the proposed Uniform Civil Code. The first pertained to seeking the court’s recognition to the ecclesiastical court, which operates independently under the religious canon laws for Catholic Christians and not under India’s civil laws. The supreme court was upset and commented angrily whether India would remain secular in the present circumstances, and called out for eliminating religions from civil laws.

This case remains pending. In the second case, the court dealt with the issue of guardianship of a Christian unwed mother without the consent of the child’s father. While ruling in the woman’s favour, it said: “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.” 5

The moot question is whether the country should now take steps to introduce a Uniform Civil Code for the Non-Hindus also, not covered under the Hindu Code. The first question is whether it is at all desirable and if so, in what form it is likely to take shape. In an age when citizen rights are of paramount significance, and the admitted position is to move towards a society which respects human rights irrespective of caste, religion, region or sex, the imperative to legislate on a Uniform Civil Code cannot be denied.

However, the pitfalls are many, the most important of them being the perceived need to preserve religious and social identity of the many peoples and communities which constitute this pluralistic and multi religious country like ours. The claim that we are a secular country guaranteeing basic and common fundamental rights to all its citizens seems to flounder when faced with the plethora of laws and practices that proliferate in this country in so far as our many religions, sects and denominations are concerned. It will take the skill of all the accomplished political and social leaders, duly supported by the religious communities, and with the benevolent touch of a crusading judiciary, for this dream to come true. But until then it seems to be but a utopian dream that will remain unrealised for years to come.

A quick glance back at the report of the first Law Commission set up by the British government in 1840, where the very same issue of a uniform code for all people was examined, is apt and relevant here. The Honourable J Harington, who had then advised the Commission, had argued against a more general application of British laws to the inhabitants of the country, stating that that they could not be applied here, as they ought to be “suitable to the genius of the people and all the circumstances in which they may be placed. Can a uniform law be suitable to the genius of the people of this country who pride themselves on their variety and diversity and who may not brook any interference in what are essentially their personal and religious matters? On the other hand, when can we hope to achieve the ideal of a country where ‘we, the people’ live with equity and freedom, shorn of prejudices and religious diktats that discriminate between man and man and man and woman? The debate is on: it will take all our combined wisdom and sagacity to find a path through the thick tangle of custom and religion, practice and prejudice. 

Mathew is a retired IAS officer of the 1977 batch of the Rajasthan cadre and former chief secretary of the State. He is currently head, Public Policy Research Group at Public Affairs Centre, a not-for-profit think tank based in Bangalore.

-------------------------

1Chavan, Nandini; Kidwai, Qutub Jehan (2006). Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India Publications. ISBN 978-81-7871-079-2. Retrieved 17 January 2014.

2Ibid

3Samaddar, Ranabir (2005). The Politics of Autonomy: Indian Experiences. SAGE Publications. ISBN 978-0-7619-3453-0. Retrieved 17 January 2014; pg 56-59.

4Chavan, Nandini; Kidwai, Qutub Jehan (2006). Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India Publications. ISBN 978-81-7871-079-2. Pg 13-20

5http://indianexpress.com/article/explained/in-fact-equality-freedom-the-key-issues-in-continuing-uniform-civil-code-debate/

 

 


 

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