The Hindu : Personal laws and common sense

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Monday, Jul 28, 2003

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Personal laws and common sense

THE SUPREME COURT of India has yet again turned the spotlight, fleetingly, on the issue of evolving a uniform or common civil code. It has regretted that Article 44 of the Constitution "has not been given effect to" by Parliament. Everyone knows that there is nothing binding about the apex court's observations on this particular issue since the matter falls within the exclusive jurisdiction of Parliament, which represents social and political India. The latest homily comes in a series of apex court exhortations over the years on this sensitive and contentious issue. This time the appeal to Parliament has come in the course of striking down as unconstitutional a section of the Indian Succession Act, 1925, which relates to Christians exclusively, on the ground that it was arbitrary, irrational and violative of the fundamental right to equality before the law guaranteed by Article 14 of the Constitution. What is clear is that the issue has all but fallen off the political map. No political party of national significance other the Bharatiya Janata Party is willing to line up behind the demand for a uniform civil code. With the compulsions of coalition politics having prevailed over the canons of ideology, the BJP itself has decided to place the issue on the backburner. It is, therefore, more or less irrelevant that the ruling party has greeted the court's homily with a smug welcome and that some parties in the Opposition, notably the Congress, have reacted to it with a perplexed silence.

So do we need a uniform civil code? The Constitution says we do, but only in a manner of speaking — in the soft part labelled "Directive Principles of State Policy," which include such tall promises as the "right to work [and] education," "free and compulsory education for all children," and so forth. Article 44 "directs," non-bindingly of course, that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." In the latest case, the Chief Justice of India, V.N. Khare, appealed to the cause of "national integration" as requiring the removal of "the contradictions based on ideologies." This is precisely what another Chief Justice, Y.V. Chandrachud, stressed in the Shah Bano case in 1985, when he asserted that such a code would "remove disparate loyalties to laws which have conflicting ideologies." A decade after Shah Bano, Justices Kuldip Singh and R.M. Sahai of the Supreme Court exhorted the then Government of P. V. Narasimha Rao to take a "fresh look" at Article 44, rebuking in the process "successive governments" for being "wholly remiss in their duty of implementing the constitutional mandate." That case related to four deserted Hindu women whose husbands had converted to Islam. In all these cases, the apex court ruled justly and progressively on such personal law matters as came up before it, upholding the secular and democratic values of the Indian Constitution. News editors duly front-paged these Supreme Court exhortations and editorialists fell into the habit of characterising them as `historic' and `far-reaching' before moving on to other, less lofty but more practical subjects. The theme of the common civil code and its impact on national integration naturally figured in the recommendations of the National Commission to Review the Working of the Constitution. What all this suggests is the existence of a substantial exhortatory `consensus' — without teeth — on the desirability of working towards such a code. In essence, this is no different from the socio-political situation in which Article 44 was framed — more than half a century ago.

There often exists between an idea and its implementation a chasm. The historical background in which the idea of a uniform civil code arose and was compromised on is crucial to understanding why the gulf remains as wide today as it was in the late 1940s. Anyone who cares to go through the Constituent Assembly debates will discover that there was a considerable degree of apprehension, among the Muslim members in particular, about the introduction of Article 44 (then Article 35) as a Directive Principle. Arguments that personal law was intimately tied up with religion and that such law would be undermined with the introduction of a common civil code resulted in the moving of amendments to dilute the Article. However, the amendments, which were voted out, failed to elicit any sympathy from one of the Constitution's chief architects, Dr. B.R. Ambedkar. He stood his ground and argued elegantly that for almost every aspect that governed human relationships, a uniform code of laws already existed in the country. "The only little corner" that the law has "not been able to invade so far," he observed, related to such things as marriage and succession. "It is the intention of those who desire to have Article 35 as part of the Constitution to bring about this change," he declared. Thus the underlying assumption behind declaring the need for a uniform civil code was that there could not be extensive links between religion and personal law in a secular and modern society. The larger positive objective behind its introduction as a Directive Principle was national integration and social consolidation.

It is ironic that a constitutional provision intended to bring people closer in a secular order has become an object of divisive, often acrimonious debate. The challenge today is to separate the core issues from the dross and the reactionary. Personal laws relate to marriage, divorce, maintenance, succession, and adoption; they also have tax and other implications. While the domain of these laws should not be exaggerated, self-evidently a secular and democratic society requires the common law to "invade" all aspects of human relationships. However, the matter is not as simple as it sounds. As democratic women's organisations have been pointing out, the concept of a uniform civil code has two dimensions — uniformity, or rather equality, between communities and equality within communities, that is, between men and women. The unsavoury truth is that personal laws, as they exist in India, tend stubbornly to discriminate against girls and women. This is not to deny the gains made by various attempts at reforming these laws and the progressive contributions made over the long term by the higher judiciary in moderating or lessening the iniquitous impact of the personal laws. It cannot also be denied that, for a complexity of reasons, the personal laws of some religious communities have undergone less reform than the counterpart laws of other communities. Muslim women are about the worst off, but the essential problem does not concern Muslim women alone. Women — Hindu, Muslim, Christian, Sikh and so on — are invariably the losers under the personal law regime. The embryo of a common civil code is seen in such progressive enactments as the Special Marriage Act, 1954 but such instances are few and far between. Gender discrimination is the critical issue. Pious advocacy of a uniform civil code as an instrument for ushering in "national integration" and communal campaigns that use Article 44 as a stick to intimidate minorities with fail to address this issue. The democratic women's movement is absolutely right when it proposes that the call for a uniform civil code, which must eventually be put in place by any society that calls itself secular and democratic, must be "preceded" by the demand for equal rights and equal laws that ensure gender justice. The task is well cut out.

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