A “civil code” refers to all the laws that deal with
matters such as marriage, divorce, maintenance, adoption and inheritance, and
property rights in different communities. These personal laws are merely the
codification of each and every community’s cultural practices and customs and
govern family-related issues, and as India is a grand amalgam of many
communities and many religions it is quite expected to have different personal
laws for different religious communities. So where is the problem in this
un-uniformity, you may ask. The problem is that because of these diversities in
the legal system all Indians are not treated in the same way by the law. And
this is no secularism!
Why the objection
The aim of this uniform code is to bring streamline in the
personal laws and to ensure that the law treats every person equal irrespective
of the religion he/she preaches and the sect he/she belongs. The
proposed legislation is aimed at replacing personal laws of various communities
on marriage, divorce, inheritance, adoption, and maintenance. However,
legal experts also caution that a Uniform Civil Code should not become a
vehicle for imposing a Hindu majoritarian civil code on other communities and
there is no doubt in my mind that this very important issue will be looked
into. In other words, the Uniform Civil
Code should not be allowed to kill our cultural diversity that caters to
community-specific needs and implements “monotheism” in the garb of “secularism”.
The Hindu grievance
The Hindu majority has another grievance which cannot be
overlooked. Since Independence, in the name of creating uniform Hindu laws,
Hindu personal laws have been thoroughly secularized through the passage of
various civil laws like Hindu Marriage Act 1955, Hindu Succession Act 1956,
Hindu Minority and Guardianship Act 1956 and the Hindu Adoption and Maintenance
Act 1956, etc., which despite paying a lip service to the importance of customs
and usage, ignores them on the ground. As a result Hindu communities have been
denied access to be governed by their religious Shastras, and their prevalent
community specific traditions and practices have been dismantled but
minority communities- Muslims, Christians, Parsis, and Jews- all have continued
to live by their community specific religious personal laws, which are rooted
in their religious principles! This, to my mind, is discrimination.
It is really a pity that the world’s longest and most
elaborately written Constitution in the history of mankind is itself
responsible for such discrimination. Does India need the Uniform Civil Code? Of
course, she does. It is high time that India had a uniform law dealing with
marriage, divorce, succession, inheritance and maintenance. Even the Western countries like Italy and
France have enforced it. But, the scenario in India is a lot more
complex. We have to truly turn secular, delink religion from politics, stop
viewing minorities as vote banks and formulate new laws which help those who
need to be protected by them most. A
broad consensus must be drawn among different communities to facilitate such a
landmark step in India’s religious, social, political and most importantly
judicial history.
Uniform Civil Code and
the judiciary
It was in 1985 that the need for a Uniform Civil Code was
felt for the first time. This was when the famous case of Shah Bano burst into
the public consciousness. Bano had gone to the courts to demand maintenance
after her husband had divorced her. Ruling on the case, the then Chief Justice
of India Y.V. Chandrachud had observed, “A common civil code will help the
cause of national integration by removing disparate loyalties to law which have
conflicting ideologies.” Unfortunately,
the government of the day thought otherwise. It argued that monotheism
is completely alien to Indian civilizational ethos, which celebrates diversity
and has evolved tailor-made cultural and religious practices to cater to the
specific needs of different communities. Thus it felt that Uniform Civil Code
killed cultural diversity that catered to community-specific needs and attempted
to implement “monotheism” in the garb of “secularism”.
A lot of water has flown down the Ganges since then.
The Muslim women have become more educated and they have turned more vocal.
They are not prepared to lead the life of second class citizens anymore and it
is because of these brave women more than because of the government of the day
that the Supreme Court of India under the leadership of Chief Justice J.S. Khehar
passed the landmark judgment banning triple talaq,
the worst form of gender inequality prevalent in the Muslim community. After
the Shah Bano case the Muslims took to the streets and persons like Z A Ansari
and Syed Shahabuddin came forth to establish Muslim orthodoxy, but the climate
in New Delhi with the BJP led NDA government in massive majority, is no more
conducive to them and the vote-bank card is in fact with the government, with
the Muslim women firmly behind it.
Why
India needs the Uniform Civil Code?
There are many reasons why India needs Uniform Civil Code
and fulfilling a poll promise of the ruling party may be a sweet by-product,
but certainly not one of them. To my mind the reasons are:
1. India turns
truly secular by this code. A uniform civil code means that all citizens
of India have to follow the same laws irrespective of the religion they belong
to. A uniform civil code doesn’t mean it will limit the freedom of people to
follow their religion, it just means that every person will be treated the
same. That’s real secularism.
2. All Indians
should be treated similarly and religious laws do not do so. All the
laws related to marriage, inheritance, family, land etc. should be equal for
all Indians and not discriminatory as religious personal laws like triple talaq often are. This is the only way to
ensure that all Indians are treated same.
3. Women are
empowered.
Our society is extremely patriarchal and misogynistic. A uniform civil
code will help in changing these age-old traditions that have no place in
today’s society, where we do understand that women should be treated
fairly and given equal rights.
4. Modern and
progressive outlook. The personal laws have today left India in a
pitiable state. We are neither modern nor traditional but a strange mix! A
uniform civil code is the sign of modern progressive nation. It is a sign that
the nation has moved away from caste and religious politics. While our economic
growth has been the highest in the world our social growth has not happened at
all.
5. Personal
laws are not holy but have too many loopholes and these are
exploited by the powerful and the influential. Our panchayats continue to give judgments that are against our
constitution and we don’t do anything about it. Human rights are violated
through honor killings and female foeticide throughout our country. By allowing
personal laws we have constituted an alternate judicial system that still
operates on thousands of years old values.
6. It will
sanitize the electoral politics to some extent. It will vote puncture
bank politics that most political parties indulge in during every election. If
all religions are covered under the same laws, the politicians will have less
to offer to certain minorities in exchange of their vote. Not having a uniform
civil code is detrimental to true democracy and that has to change.
7. It will help
in creating One India. A uniform civil code will help in integrating
India more than it has ever been since independence. A lot of the animosity is
caused by preferential treatment by the law of certain religious communities
and this can be avoided by a uniform civil code. It will help in bringing every
Indian, irrespective of her/ his caste, religion or tribe, under one national
civil code of conduct.
I respect the anguish and alarm of those who feel that
in the name of uniformity in civil code our diversity of religion, culture and
civilization is at risk but if we incorporate the most modern and progressive
aspects of all existing personal laws while discarding those that are
retrograde then how can we not build a better future? Religious fundamentalism
must go, social and economic justice must be made available to the so-called
minority and oppressed groups and their dignity should be ensured to achieve
this dream of one India, one society and one Law.
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