Open Forum

New Delhi, 12 November 2015                                                                                                           

Uniform Civil Code

RIGHTS ISSUE, NOT RELIGIOUS

By Dr S Saraswathi

(Former, Director, ICSSR, New Delhi)

The Supreme Court gave three weeks time to the Government on 12 October to inform it whether it is willing to bring the Uniform Civil Code (UCC) in the country and to amend the Divorce Act. Such a direction was received earlier too, taken seriously by the Government this time, and the process of consultations with other political parties and religious leaders has been initiated.

The Supreme Court was hearing a PIL challenging the legal provision that compels Christian couples to wait for at least two years for divorce while this waiting period is only one year for other religious groups.

Union Law Minister Sadananda Gowda has stated a uniform civil code was “the need of the hour” and “steps should be taken in that direction”. He, however, added that the Government would not make any move without due consultation and consensus with all stakeholders. He agreed that the UCC would certainly have a positive impact on national integrity.

It may be recalled that in May 1995, the Supreme Court, asked the State to “secure a uniform civil code for citizens throughout the country” and that legislation, not religion, was the authority under which the personal law was permitted to operate and it “could be superseded by introducing a uniform civil code”.

Again in July 2003, the Supreme Court suggested that Parliament frame a common civil code for the country as that would help the cause of national integration. It was made while declaring as unconstitutional Section 118 of the Indian Succession Act 1925 applicable only to Christians. It put strict conditions regarding bequeathing any property to religious or charitable uses by any person having a nephew or niece or any nearer relative.

Time-bound action in this matter sought by the Supreme Court last month has provoked some serious discussions on the implications of introducing Uniform Civil Code. There is a lot of misunderstanding and misleading political propaganda regarding the UCC.  Its supporters have certainly failed to elucidate its purpose and meaning. And opponents do not want to understand it fully, but want to project it as anti-minorities, particularly, anti-Muslim stance of majority religious groups in India.

As a consequence, UCC – a Directive Principle enshrined in the Constitution – has lost its constitutional status and has become a political and election issue between parties to divide and polarize the voters. Still worse, it is seen as interference into the religious beliefs and traditional practices of non-Hindu religious groups governing marriage and property matters. A false propaganda is circulated equating UCC with a Hindu code and thus destroying religious freedom in the country.

In 2003, the Supreme Court observed: “It is no matter of doubt that marriage, succession and like matters of secular character cannot be brought within the guarantees enshrined under Articles 25 and 26 of the Constitution (right to freedom of religion)”.

In British India, there were common criminal and civil law until the Shariat Law was adopted in 1937 to govern personal matters of all Indian Muslims under Islamic laws.  This historical fact has been conveniently forgotten and suppressed. After serious debates in the Constituent Assembly, the UCC was placed under the Directive Principles of State Policy as Article 44. Shariat got a fresh lease of life.

Minority politics played in this issue is blatantly clear through the Shah Bano case in 1985. Recall an elderly Muslim divorced woman with five children who was denied maintenance beyond the iddat period of three months approached the Supreme Court, which granted her maintenance under Section 125 of the Criminal Procedure Code till her marriage or death as for other divorcees.

The then Congress government passed the Muslim Women (Protection of Rights on Divorce) Act 1986 and restricted maintenance to the iddat period. The Act was later nullified by the Supreme Court. What prompted the Government to pass this law to circumvent Supreme Court decision is immaterial. It was a clear case of multiple failures of the government -- failure to introduce necessary reforms in marriage and divorce laws governing non-Hindus, failure to differentiate religious and social matters, and failure to protect equal rights of women of all religions.

Significantly, Goa has a Common Civil Law, called Goa Civil Code. Different religions in India have their own personal laws as Hindu Law (1955-56), Muslim Law (Muslim Personal Laws (Shariat) Application Act 1937, Christian Law, Parsi Marriage and Divorce Act 1936. These relate to family matters such as marriage, adoption, succession, etc. Ecclesiastical courts are still functioning in India. Catholic Christians, for instance, are governed by their own Canon Law. UCC, if adopted will govern all religious groups and is not specifically aimed at weakening Muslim practices as made out. Common civil code will govern Hindus also, but will not be a Hindu Code.

True. Religious courts are still functioning in many countries despite acceptance of common law and equal rights and have become a source of social conflict. British Jews, for instance, are said to be turning to their own religious courts, according to BBC news.  The first Amendment of Alabama Constitution in the US prohibits use of foreign law in Alabama courts. By 2014, the position in the US is that seven States had banned Sharia law or passed some kind of prohibition for considering foreign, international, or religious law in State courts.

In any case, a fatwa under Islamic law is not binding and the individual concerned is technically free to accept or not. There are also instances of verdicts of Shariat courts being challenged in regular courts. In a way, they are like caste panchayats and khap panchayats which decide cases without legal validity of their decisions.  It may, therefore, be argued that there is no compelling reason to ban Sharia courts and the need is to educate people in their civil rights and their freedom to approach State Law. The position is the same as with khap panchayats that have no legal standing. Their influence is social and not legal.

Interestingly, a debate on Shariat took place in Westminster Hall in April 2013 following a petition by the local council of mosques calling upon the British government to recognize Sharia Councils. The Parliamentary Under-secretary then stressed that Sharia had no jurisdiction in England and Wales and there was no parallel recognized court system.

In India, the national debate on uniform civil code has almost become impossible by a vicious propaganda that it will usher in a Hindu Code. A crucial point mostly overlooked is that the majority religious group of Hindus in India has accepted several reforms contradicting traditional practices in personal and family matters pertaining to marriage, divorce, adoption, property rights, etc., brought about by legislations. Child marriage is prohibited; sagotra marriage is legalized; divorce is allowed and also simplified; women’s right to inheritance of property is recognized, to mention a few reforms that are accepted, but may still be revolting to orthodox groups. 

In fact, there is reason to nurse a grievance that such progressive reforms do not cover some non-Hindu groups in India leaving them somewhat backward particularly with women’s rights invariably trampled by the personal laws of religious courts. What is required is to make people realize that the UCC is basically a rights issue and not religious. ---INFA

(Copyright, India News & Feature Alliance)