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COMMON UNEASE

It never seems the right time to talk about the uniform civil code. Yet not only is it one of the directive principles of the Constitution, but in practice too the dominance of the personal law in matters of marriage, succession and property among different religious communities creates unjustifiable inequities that cannot be corrected without the application of a common civil law. It is not surprising that the Supreme Court has suggested that a UCC be formulated, while ruling on a provision of the Indian Succession Act which imposes restrictions on Christians wishing to bequeath property to charitable institutions. This is not the first time the court has asked for a common civil code, but it is certainly the first time that it has framed its argument in such clear-cut terms. According to the court, Article 25 and 26, guaranteeing freedom of conscience and free profession, practice and propagation of religion and the freedom to manage religious affairs, are in no way undermined by Article 44, which asks for a uniform civil code.

The Supreme Court has taken care to clarify the idea that links and divides the provisions. Matters relating to marriage, succession and similar matters cannot be brought under a provision guaranteeing religious freedom, hence Article 25 and Article 44 are mutually exclusive. What the court has tried to do is to distinguish firmly between the civil and the religious in a “civilized society”, and indicate that such a distinction is inscribed in the Constitution itself. It is true that the Constitution is rather tentative in this as in certain other sensitive matters, relying perhaps on the interpretation of a later age according to its needs. But the secular spirit is best expressed in this set of provisions, and it is this that the court has enlarged on.

As usual, the reaction in political circles is mixed, an evasive combination of caution, righteousness, concern for minority sentiments — vote bank, that is — and blatant elation from groups better kept out of the debate. For the Bharatiya Janata Party, this is all to the good; the UCC had been on its initial programme. Time and experience have sobered the party somewhat, else it would have displayed its elation openly too. Now it has decided to persuade its allies and opposition. Unfortunately, the murmuring opposition parties have a point. The distrust of the minorities towards the Hindutva forces has grown to such an extent during the BJP-led regime, that any talk of a UCC will inevitably raise hackles. That is why even the women’s organizations, which feel strongly that personal laws are most damaging to women, are careful about “imposition” of a common code. The change, many feel, must come from within the communities themselves. Triumphalism from the Hindutvawallahs will just hinder the process. But the Vishwa Hindu Parishad is already gloating, with one of its slick arguments ready to hand: if the minority community wants to abide by the court verdict in the case of Ayodhya, it should do the same in the case of a UCC. But all these bear auguries of ultimate inaction. That is what is most tragic: with care, ceaseless dialogue and determination, the way to a common civil code can still be forged.

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