By Faizan Mustafa
Sep 12, 2017
The Constitution did not envisage 'one nation, one law'. All communities would have to give up their distinctive practices to achieve uniformity.
It is time we put the Uniform Civil Code debate in context, with constitutional intentions as well as India's lived experience.
First, we need to appreciate the distinction between `justiciable' and `non-justiciable rights'. The former are enforceable in the court of law while later are not. Even in the triple talaq case, the majority bench of the Supreme Court held that freedom of religion, subject to restrictions, under Articles 25 and 26 is absolute. The right to follow personal law has been elevated to the highest status of fundamental rights. Article 26 is wider in scope than Article 25, as it guarantees freedom to "religious denominations or any sect thereof to manage its own affairs in matters of religion". This freedom is not even subject to the `right to equality'. The Supreme Court rightly held in Minerva Mills (1980) that "to destroy the guarantees given by Part III (Fundamental Rights) in order purportedly to achieve the goals of Part IV( Directive Principles) is plainly to subvert the Constitution by destroying its basic structure... to give absolute primacy to one over the other is to disturb the harmony of the Constitution."
Of the 19 Directive Principles, why is that only two are a matter of public discussion now: cow protection and the Uniform Civil Code? No one is talking about living wages, removal of inequalities in income, equal pay for equal work, early childhood care, raising level of nutrition and public health and so on. In fact, everyone opposed the apex court's order on mere prohibition of sale (not consumption) of liquor within 500 metres of a highway, even though Article 47 provides for the prohibition of intoxicating drinks, in language identical to Article 44.Is this not hypocrisy?
It is an erroneous perception that we have different personal laws because of religious diversity. As a matter of fact, law may differ from state to state. It appears that the framers of the Constitution did not intend total uniformity in the sense of one law for the whole country, because the power to legislate in respect of personal laws has been given to both Parliament as well as state assemblies. Thus, personal laws can differ at least within 29 states and the Union. The preservation of legal diversity seems to be the reason that personal laws were included in the Concurrent List. Thus, `one nation, one law' is not what our Constitution really envisages. States have made more than a hundred amendments to even the Criminal Procedure Code and the Indian Penal Code. It is also a myth that we have uniform criminal law. Even in the US, for instance, criminal law differs from state to state.
All Hindus in the country are not governed by one law either. Marriage amongst either. Marriage am close relatives is prohibited by Hindu Marriage Act, 1955, but it is considered customary in parts of south India. The Hindu Code Bill does recognise these different practices. There is no uniform applicability of personal laws amongst Muslims and Christians either. The Constitution itself protects the local customs of Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Take the example of Goa, which is often lauded for having a Uniform Civil Code --Hindus there are still governed by the Portuguese family and succession laws, and limited polygamy is permissible for them, but not for other communities. The refor med Hindu law of 1955-56 is still not applicable to them. The Shariat Act of 1937 is not applicable to Jammu & Kashmir, and so Muslims continue to be governed by custom governed by customary law, which in many ways is at variance with Muslim personal law.
And why talk of discriminatory personal laws, when even land laws enacted after 1950 in many states are gender unjust?
These laws have been exempted from judi cial scrutiny by including them in the IX schedule. Advocates of gender justice must revisit these laws too.
Hindu law has not been fully reformed after more than 70 years and despite several amendments. If this reform could not be achieved in one go, despite Hindus being a majority community, then taking up reforms in the minority communities in the absence of a conducive environment would be unwise. Like the Hindu Law Reforms Committee which was formed in 1941, the Modi government should constitute, as a first step, a Muslim Law Reforms Committee, Tribal and Indigenous Law Reform Committee, Christian and Parsi Law Reforms Committees, and based on their recommendations, take the reform process forward. We would then need a Hindu Law Committee as well, as some of the existing provisions of codified Hindu law such as the solemnisation of marriage, saptapadi, kanyadaan, the sacramental nature of marriage, joint family and tax benefits, testamentary powers and so on may not find a place in the Uniform Civil Code, and provisions like dower or nikahnama (prenuptial contracts) might have to be incorporated. Are Hindus ready for these reforms? When the RSS opposed the Hindu Code Bill, the Nehru government did concede on several key issues. And as far as this government is concerned, its commitment to gender justice is clear from its stand on marital rape.
The goal of a Uniform Civil Code should be achieved in a piecemeal manner, and with a commitment to justice and a respect for diversity. Legal pluralism is widely respected. We should remember that mere normative changes are not likely to bring social reforms.
(The author is vice-chancellor of NALSAR University of Law, Hyderabad. Views are personal)
Source: Times of India