Dr Manoj Kumar Sinha
BJP has been persistently demanding common civil code since jan sangh times. The promise of implementing a Uniform Civil Code is one of the core issues of BJP and finds mention in its manifesto. Due to lack of BJP’s own majority in parliament, Atal Bihari Vajpayee Government was not able to introduce uniform civil code due to strong pressure from NDA allies. General election (2014) gives majority to BJP. NDA allies are also not strong enough to oppose uniform civil code. In fact, most NDA allies like Shiv Sena, Akalis, are also supporting common civil Code. Under this situation, Narendra Modi Government can bring common civil code which will applicable to all citizens of India irrespective of their religions. So, the media feel that uniform civil code now is not a distant matter for India. The questions like, what is uniform civil code and how it is important for India, comes into my mind.
There are five broad sets of personal laws in India based on the religions professed by different communities. Hindu law governs all Hindus, including Buddhists, Jains and Sikhs. Muslim law applies to Muslims, Christian law governs Christians, and Parsee law applies to the Parsees. Jews have their own personal law. These personal laws cover property and personal matters like marriage, divorce, maintenance, adoption and inheritance. The different laws are governing these aspects differently for different communities in India. Thus, the laws governing marriage, inheritance or divorce among Hindus are different from those pertaining to Muslims or Christians and so on.
Uniform civil code is supposed to replace these personal laws based on the scriptures and customs of each major religious community in the country, with a common set governing every citizen in India. These laws are distinguished from public law and cover marriage, divorce, inheritance, maintenance, guardianship and adoption. Article 44 of the Directive Principles in India sets the implementation of a uniform civil code throughout the country as duty of the State. Article 44 says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The objective of this article is to effect an integration of India by bringing all communities into a common platform which is at present are governed by personal laws and which do not form the essence of any religion. Article 37 makes clear that the directive principles “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. The Supreme Court has expressed itself in favour of the enactment of a uniform civil code in the Shah Bano case and the Sarla Mudgal case. The Supreme Court in Sarla Mudgal judgement had observed that “the Government would be well advised to entrust the responsibility to the Law Commission to bring about the comprehensive legislation in keeping with modern day concept of human rights.” However, none of these comments are binding on the executive or the legislature and do not amount to orders. At best, they exert some moral pressure on the Indian state to move towards formulating a uniform civil code.
As women’s organisations and others have repeatedly pointed out, personal laws governing different communities in India have a common feature – they are all gender-biased. The personal laws are designed to keep women forever under the dominance and control of men. Women undergo many difficulties and experience severe trauma in matters concerning their marriage, divorce and inheritance. Polygamy, desertion, triple divorces are just a few examples to show the possibilities of harassing women. Indian women are formally granted equality in political rights through the Indian Constitution. Due to the different personal laws, women experience inequality, deprivation and violence. Gender issues need to be addressed very seriously. There is a need to reform the personal laws and bring about a uniform civil code to ensure not only equality between men and women but also to bring about gender justice. If it is implemented it will lay the foundation for women to overcome many social evils like dowry system, bigamy etc. which makes a woman feel inferior and degraded.
Another issue, the personal laws are the main cause of communal conflict among people. The absence of a Uniform Civil Code goes against the concept of equality which is one of the basic tenets of our Constitution. The different personal laws for different religions are undermining the credibility of the secular ethos of India. A Uniform Civil Code will also simplify legal processes involved with the matters governed by personal laws. It will also go a long way in promoting the causes of secularism, equality and national integration. It will also make the separation of the State from the religion more complete and meaningful.
Fundamentalists supporting personal laws and opposing uniform civil code say that imposition of uniform civil code will be a violation of fundamental rights envisaged by the Constitution. Article 26(b) says, “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion.” The supporters of personal laws and their blindly followers believe that matters like marriage, divorce and inheritance are religious affairs and the Constitution guarantees freedom of such activities and therefore the Uniform Civil Code will be a violation of that. Their argument is that this code will affect the religious freedom of minorities. However, the Supreme Court has observed that marriage, succession and the other matters of a secular character cannot be brought within the guarantee enshrined under Article 26 of the Constitution. The Supreme Court said that the right to follow one’s personal law is not a Fundamental Right. However, the political parties like congress claim that the sentiments of the minorities will be adversely affected while implementing a common law. There are political parties and leaders who are always eager to hijack such burning issues to improve their vote banks.
The uniform civil code will ensure equality, unity and integrity of the nation and justice for both men and women. We must depoliticize the uniform civil code. The secular country like India needs a uniform civil code.
(The author is Assistant Professor, PGDAV College, University of Delhi)
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