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NO COMMON CAUSE

The demand for a Uniform Civil Code (UCC) — wherein all personal laws in the country would be guided by one set of laws applicable to all communities — has been raised from time to time. Recently, Union minister for agriculture Radha Mohan Singh brought it back into the public discourse, throwing open the debate around a UCC once again. Of course, Singh’s comments immediately evoked a rush of protests and the charge that the BJP government at the Centre wanted to steamroll the legislation without taking the sensitivities of particular communities into account.

Despite the criticism, however, there are many who advocate the adoption of just such a code. A “civil code” refers to all the laws that deal with matters such as marriage, divorce, maintenance, adoption and inheritance, and property rights in different communities.

“These personal laws are merely the codification of each and every community’s cultural practices and customs and governs family-related issues,” says Ranjana Kumari, director of the Centre for Social Research, Delhi.

If a “uniform” civil code is formed, all these different “personal laws” will come under one set of secular laws that will be applicable to every citizen of India irrespective of their caste, creed or community. Though the exact contours of such a code has never been spelt out, it is assumed that the UCC would incorporate the most modern and progressive aspects of all existing personal laws while discarding those that are retrograde.

Says Subhash C. Kashyap, constitutional expert and honorary professor at the Centre for Policy Research, a Delhi-based think tank, “The advantage of having a Uniform Civil Code is that every citizen would have to adhere to only one law. It would bring equality before law and, more importantly, equal protection before law.”

It was in 1985 that the need for a UCC was felt for the first time. This was when the famous case of Shah Bano burst into the public consciousness. Bano had gone to the courts to demand maintenance after her husband had divorced her. Ruling on the case, the then Chief Justice of India Y.V. Chandrachud had observed, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.”

Experts point out that the biggest beneficiaries of a Uniform Civil Code would be women. “Recently, a woman, who had been given triple talaq by her husband, had come to meet me. She is stranded with two kids and is getting no money for her livelihood. The personal laws are very detrimental to the life of women,” says Kumari.

However, legal experts also caution that a Uniform Civil Code should not become a vehicle for imposing a Hindu majoritarian civil code on other communities. “The UCC should not become a means to target Muslims or for that matter any one minority community. It should rather cleanse all the religious communities,” says Dipankar Gupta, professor of sociology, Shiv Nadar University, Uttar Pradesh.

Colin Gonsalves, human rights activist and lawyer, also feels that the UCC should not be seen to be directed against one community. “In fact, if any personal law — that of Christians, Muslims, Sikhs or Parsis — discriminates between men and women, it should be declared void to that extent,” opines Gonsalves.

Indeed, many activists oppose a Uniform Civil Code precisely because they feel that it will stamp out the cultural practices of minority communities. As senior lawyer Prashant Bhushan points out, “UCC should encompass the liberal elements of all the civil codes. In no way should it do injustice to any minority community or the tribes of India. It is important to convince all the communities and not impose UCC on them.”

The provision for a Uniform Civil Code is enshrined in Article 44 of the Constitution. Says Fali S. Nariman, constitutional jurist and senior advocate, “Article 44 provides that the state shall endeavour to secure to citizens a Uniform Civil Code throughout the territory of India. But this provision is not enforceable in any court.

“It is with small beginnings that we will ultimately achieve — without rancour or bitterness — what the directive principle of state policy in Article 44 projects as our ultimate national goal. Take the example of the Special Marriage Act of 1954. Those who register their marriages under it — Hindus, Muslims, Parsis, Christians and Sikhs — are permitted to have a divorce by consent where the marriage has irretrievably broken down, without having to prove marital misconduct, required under their own personal laws. Silently, this act of Parliament has established — without pressure — and by consensus — a uniform law for marriage and divorce: not a binding code, but an enabling one. And this is what Article 44 was intended to achieve,” says Nariman.

Salim Engineer, national secretary of Jamaat-e-Islami Hind, however, feels that it is simply not practical to have a UCC. Each and every community has its own personal laws from which it gets its identity. “The demerit of UCC is that it will question the very identity of a community,” he says.

Mohd Abdul Rahim Quraishi, assistant general secretary of the All India Muslim Personal Law Board, agrees with Engineer: “All our personal laws are part of the Sharia laws, which are the words of the Quran or the Prophet. And it is the duty of every Muslim to abide by the Sharia laws. If he is not allowed to do so then how is Article 25 (right to freedom of religion) being adhered to?”

Nevertheless, many women’s activists feel that a Uniform Civil Code ought to be looked at in the context of the fact that most personal laws are unjust to women. Says Sunanda Mukherjee, president, West Bengal State Women Commission, “Many of these personal laws favour men over women. That is why we need a UCC.”

But realistically speaking, is it possible for India to have a Uniform Civil Code? Experts feel that it will be extremely difficult to enact it. As Quraishi points out, “The customs of different communities are their personal laws too. For example, in south India a man can marry his own sister’s daughter. Now this will not be acceptable to many communities, even among Hindus,” he says.

Under such circumstances, Kashyap suggests that perhaps the solution lies in evolving a model common code and a personal code and leaving it to the individual to decide which one he wants. In fact, Goa has such a common code since the time of the Portuguese rule there.

Nariman concludes aptly, “I concede that logic does favour the plea for a Uniform Civil Code — but only when we are all ready for it; when we have, in thought and deed, put Ayodhya behind us. Till then, as Winston Churchill once said in a speech in the House of Commons, (when it was suggested that he rename government ministries): ‘beware of needless innovations, especially when guided by logic’.”