The imposition of a Uniform Civil Code would be considered as an invasion on personal laws of citizen and religious freedom guaranteed by Article 25 of the Constitution of India. But, what about gender discrimination and justice? Are there any clear answers against the backdrop of a polarised debate?
The Uniform Civil Code has been a matter for debate for a long time, perhaps since the time the Constitution was framed and it was envisaged by the makers of the constitution of India as being the ideals to be achieved as the Sate Principle of Directive Policy, clearly demarcating it from the fundamental rights. Today, the debate has gained some momentum as the National Democratic Alliance (NDA) led by the Bhartiya Junta Party (BJP) has asked the Law Commission to examine the issue of implementing the controversial Uniform Civil Code in detail and submit a report.
But the Muslim religious and political figures have reacted strongly to this development. Given the subtext of the debate, they fear that the government will try to impose the norms of the majority in the name of Uniform Civil Code. This would be in total violation of Article 25, they argue. According to a newspaper report, they have been reported as saying: “When there are so many differences in cultures across the country, how will they impose Uniform Civil Code? Nobody can interfere in the religion and religious practices of any person. This is a secular country. What is a secular state? And why is secularism being tarnished?”
Muslims consider talks about changing their personal laws a direct attack on their religious identity, since to a large extent personal law is determined by the religion. A uniform civil code if came into force will prohibit different legal rights enjoyed by all citizens on the matters of marriage, inheritance, maintenance, adoption, etc. Dr. B.R. Ambedkar had cautioned the Constituent Assembly against imposition of a uniform civil code on any unwilling community. This is why no government has enacted a common civil code or interfered with the personal law of any community, unless the community desired its intervention.
The Law Commission in its 212 reports, under the chairmanship of Hon’ble Dr. Justice AR. Lakshmanan, when examining laws of conflicts in civil marriages in India, had said that the proposed changes in Special marriage act and foreign marriage act were mighty steps towards translating into action the ideal of uniformity in civil laws envisaged by Article 44 of the Constitution of India.
“The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Article 44 of the Indian Constitution sets implementation of the code as a duty of the state. The directive principle of state policy contained in Part IV of the constitution sets out the aim and objectives to be taken by the states in the governance of the country. The real importance of the directive principle is that they contain the positive obligation of the sate towards its citizens. They are the ideals which union or the state must endeavour to secure. They are the moral precepts of the state. They provide a middle way between individual liberty and public good. Dr. Ambedkar has said: “These principles were not intended to be mere pious obligations; they are meant to be instruments of instructions.” However, the directive principles are nonjusticiable, i.e., cannot be enforced by court, they are declaratory while fundamental rights are justiciable, i.e., it can be enforced by the courts. In state of Madras v Champakam Dorairajan, the court has held that directive principles cannot override the fundamental rights
25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. 25. (2) nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
In Santosh Kumar v Sec, Ministry of Human Resources Development, the SC said that state tolerance of religion does not make it either a religious or a theocratic state. In SR Bommai v Union of India the court held secularism is a basic feature of the Constitution and any state that act against that ideal can be dismissed by the president.In Santosh Kumar v Sec, Ministry of Human Resources Development, the SC said that state tolerance of religion does not make it either a religious or a theocratic state. In SR Bommai v Union of India the court held secularism is a basic feature of the Constitution and any state that act against that ideal can be dismissed by the president.
Uniform Civil Code means unifying all personal laws to have one set of laws dealing with the aspects of marriages, property, etc., that will apply to all citizens of India irrespective of the religion. There are different personal laws for Hindus and Muslims which cover property, marriage and divorce, inheritance and succession. Therefore, this legislative exercise would tantamount to flirting with the religious freedom guaranteed by Article 25 of the Constitution of India. The imposition of a Common Civil Code would be considered as an invasion on personal laws of citizen when personal law has its roots in religion and religious practices. This might have unwarranted consequences.
The issue of triple talaq has been raised as a strong case to bring Uniform Civil Code. On October 16, last year, the Supreme Court decided to register a PIL suo motu titled ‘Muslim women’s quest for equality,’ on the gender discrimination women face under the Muslim personal law. “This is a very important issue. It affects a very large section of the population,” Hon’ble Chief Justice of India T.S. Thakur observed while agreeing to hear all stakeholders equally in the matter.
The petitioners, which include Muslim women and human rights organisations, said the community was ‘stuck in time warp since the passage of the Muslim Personal Law (Shariat) Application Act by the British in 1937’. Progressive laws like the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986, has not been able to help the cause of distraught Muslim women suffering discrimination and inequality. They contended that courts could adjudicate under Article 13 of the Constitution if the Shariat law was found to be “inconsistent with or in derogation of the fundamental rights” of Muslim women.
But it is interesting to note those Muslim women who are fighting against triple talaq have categorically said that they do not want uniform civil code, they only want codification of Muslim personal with safeguards and changes which is non-discriminatory as the triple talaq.
Muslims Constitutional and legal experts have also long argued that the case of triple talaq is about the reformation of Islamic shariah law which has been based in this case on a weak tradition in all sense of the word.
According to AG Noorani, “The real issue is reform of an unIslamic Muslim Personal Law, imposed by the British on the basis of texts of dubious quality, so that it accords with Sharia, Islamic Law, which fully recognises the rights of women; for example to unilateral divorce by the wife at her will and to stipulate at the time of the marriage that she will be entitled to a divorce if the husband were to marry again.” Noornai further writes: “The Personal Law of Muslims in a secular setup, thus, needs reform, but not abrogation by a uniform civil code. Urgently needed reform, however, is only an aspect of the entire problem of the place and role of Muslims in India today. The Muslim and the non Muslim secularist can together help in assuring a place and role for a community so backward and timid yet potentially so capable of imparting meaning and strength to one of the most challenging experiments in equality history has ever witnessed.”
In Mohd. Ahmed Khan v. Shah Bano Begum, the husband appealed against the judgement of the Madhya Pradesh High Court directing him to pay to his divorced wife ` 179 per month, enhancing the paltry sum of ` 25 per month originally granted by the magistrate. Thus, the principal question for consideration before the Court was the interpretation of Section 127(3)(b) of Cr.P.C. that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband form his obligation under the provisions of Section 125 of Cr.P.C. A five-Judge Bench of this Court held that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties. If there was a conflict between the terms of the Code and the rights and obligations of the individuals, the former would prevail.
There was a great opposition to this judgement and Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. However, the constitutional validity of this act was upheld by the SC in Danial Latif & Anr. V. Union of India. The Court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides for the rights of Muslim women in matters of divorce and maintenance and ovserved that the Act entitles a divorced Muslim woman to reasonable and fair provision for maintenance.
In the case of Sarla Mudgil v. Union of India the questions before the Apex Court involved whether a Hindu husband, married under Hindu law, by embracing Islam could solemnize a second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continues to be Hindu?
Supreme Court held that under the Hindu Personal Laws as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage. Thus the second marriage performed by the husband is void marriage and he is liable for the offence of under Sec 494 of IPC. Justice Kuldip Singh J., while delivering the judgment directed the government to implement the directive of Article 44. However, AG Noorani quotes from an article written by the constitutional lawyer HM Seervai which says: “Justice Kuldip Singh, however, gratuitously raised the question of a common civil code on the specious ground that the absence of such a code induced Hindu husbands to convert to Islam so that they could marry one or more wives although their wives were alive and had not been divorced, because Mohammedan law permitted a Muslim to marry four wives at a time. He further held that a common civil code did not violate the freedom of religion guaranteed by Articles 25, 26 and 27 of our Constitution. On this point, Justice Sahai dissented and referred to Supreme Court decisions which had held that religion was not merely a matter of faith and belief, but included rituals, ceremonies and prayers in temples, mosques, churches, etc. Justice Kuldip Singh praised Justice Sahai’s ‘concurring’ judgment. But on the question of whether a common civil code would violate freedom of religion, Justice Sahai did not concur.”
In all the debate about the Code, there is an assumption that it will pave way for national integration. The Supreme Court had to deal with the issue of gender justice in many cases involving divorce and marriage in relation to Muslim women as well as in the cases of the women from the other communities. Since arbitrary way the women have been subjected to in India, the call for some sense in this direction is not uncalled for. Even after the Hindu marriage act there have been cases where the rights of the women were trampled upon by the patriarchal system in our society. However, in Ahmadabad Women’s Action Group (AWAG) v. Union of India, in which a PIL was filed challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory and non-statutory law, the Supreme Court held that the matter of removal of gender discrimination in personal laws “involves issues of State polices with which the court will not ordinarily have any concern.” The Supreme Court also on December 7 last year refused to entertain a PIL for a direction to Parliament to enact the Uniform Civil Code. Chief Justice T S Thakur said: “How can a mandamus [a court order] be issued on such an issue?
Constitutional goal is one thing, and possibility of them being fulfilled is yet another thing. These are the things in realm of Parliament and the Supreme Court cannot do anything.”
At present the government has sent its word to the Supreme Court to abolish `triple talaq’ and polygamy, calling them unconstitutional customs hurting gender equality and women’s dignity. However, the Centre refrained from linking its stand to the demand for uniform civil code.
However, given the subtext of the debate on the Uniform Civil Code and the previous posture of the government, there is a palpable fear among the Muslim. They believe that ‘if, in the name of uniformity, a Uniform Civil Code imposes the norms of the majority on all minorities, this would clearly not advance religious freedom.’
The Muslim personal law board in the petition to the Apex Court has argued that the framers of the Constitution were fully conscious of the difficulties in enforcing a Uniform Civil Code and thus they deliberately refrained from interfering with the provisions of the personal laws and laid down only a directive principle.
They have also said that the rights of Muslim Women are already protected by virtue of Muslim Women (Protection of Rights on Divorce) Act, 1986, whose constitutional validity has been upheld by the Supreme Court.
However, Tahir Mahmood, the former member of the Law Commission, wrote an article some years back in the Outlook which says: “In the area of Muslim family law, on the other hand, there are till this day just two brief acts of a few sections each — one of 1939, on women’s right to judicial divorce, and the other of 1986, on their post-divorce rights. Otherwise, Muslim law courts are constrained to rely on English language textbooks, quite a few of which are obsolete or otherwise flawed. Higher courts often diligently look for and read Muslim law principles in their true perspective; but in the lower courts blind reliance on some outdated treatises leads to miscarriage of justice” Therefore, he recommended: “Muslim family law needs to be codified both to ensure justice to those who are governed by it — women especially — as also to free the courts from the awesome burden of ascertaining its true unadulterated principles. Codifying Muslim law would, of course, not mean abandoning its essential principles. Christian marriage and divorce laws of 1869-72 and the Parsi matrimonial law of 1936 have been amended in recent years without giving up their basic religion-based provisions, and the same is true also of modern Hindu law.”
The present Law Commission has sought public views on ‘the exercise to revise and reform family laws’, saying the aim is to address social injustice rather than plurality of laws. It has issued an appeal on the October 7, which says ‘the objective behind the endeavour is to address discrimination against vulnerable groups and harmonise the various cultural practices with the norms of no one class, group or community dominating the tone and tenor of family law reforms. The Commission has also sought to know whether the Uniform Civil Code should include subjects like divorce, marriage, adoption, child custody, succession and inheritance. It has asked people and stake holders as to whether a Uniform Civil Code would infringe an individual’s right to freedom of religion. Hon’ble Justice B S Chauhan, Chairman, Law Commission, said, “The Commission hopes to begin a healthy conversation about the viability of a uniform civil code and will focus on family laws of all religions and the diversity of customary practices, to address social injustice rather than plurality of laws…Family law reform, inter alia, has to view women’s rights as an end in itself rather than a matter of constitutional provisions, religious rights and political debate alone.”
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