This is the third time the Supreme Court has come out in favour of a uniform civil code in the country for all communities that would govern all matters including marriage, divorce, inheritance, succession and so on. And every time the apex court pronouncement has created political turmoil. The Supreme Court’s observation in the Shah Bano case had to be countered by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986 under Rajiv Gandhi. The second time, in the Sarala Mudgal case, the Supreme Court judge had to clarify that he had only made an observation and not issued a directive for the enforcement of Article 44 of the Constitution.
The court’s latest observation on the subject has gladdened the Hindu right and caused panic among Muslims since it is public knowledge that the sangh parivar strongly favours a uniform civil code. The matter had been kept on the backburner because of opposition from the National Democratic Alliance allies.
Article 44, which asks the Indian state to endeavour towards a uniform civil code, is part of the directive principles of state policy and is thus not enforceable by law. Successive governments have indeed worked in that direction. Codification of Hindu law and other religious laws has advanced the process. But Article 44 does not specify any time schedule for the enactment of the code and its serves little purpose for the judiciary to keep harping on it.
But there have been organizations and people in the country who have raised serious doubts about the coercive element in the proposal for the code as also the justification for the government entering the field of moral and ethical concerns. One such organization is the Shetkari Sanghatana at Chandvad, Maharashtra, which has suggested an alternative “national civil code” which is consistent with principles of equity and justice, but would also give the people the liberty to continue with their respective religious systems.
According to the Constitution, the Indian republic is a secular state, which means it is “equally sceptical of all religious dogma”. However, a uniform civil code would be a laudable objective in the long run and the best way to introduce it is through the elaboration of an optional national civil code.
This particular code has certain distinctive features. One, the elaboration of it does not mean the disputing of the relative merits of various religious, civil systems, nor imposition of one religious code on all the people, nor a hodgepodge of diverse religious stipulations.
Two, the national civil code must represent a well integrated scheme based on equality, justice and reason. Three, every citizen of the republic should be, a-priori, considered as being governed by the national civil code. However, any citizen or his guardian should have the chance of opting for the civil system of any of the established systems of faith.
Four, the state judicial system should not intervene in civil disputes between citizens opting for the same religious code. Five, disputes between citizens of a single religious code would be decided according to the national civil code, should any of the parties choose to take recourse to the official judicial system. Six, disputes between citizens appertaining to different religious codes will be subject to the national civil code.
Some leaders oppose the idea of a common civil code on the grounds that the initiative should come from within the society and particularly from the minority communities. The fact is since the BJP made the common civil code an electoral plank, progressive Muslims have come under intense pressure from within the community not to support any civil reforms. The proposal of a common civil code has thus become counter-productive in practice. The proposal of a national civil code is a practical one since it applies equally to all the communities throughout the territory of India.