Cautious approach needed

The debate over the Uniform Civil Code (UCC) has been revived, once again. This time, the Law Ministry has asked the Law Commission to examine afresh the entire gamut of issues involved in enacting a UCC and furnish a report to this effect. The move assumes significance because the Supreme Court (SC) prefers a wider public debate before taking any decision on the constitutional validity of ‘triple talaq’, under challenge from several Muslim women before it.

D V Sadananda Gowda, when he was law minister, had said that the Law Commission might have wider consultations with various personal law boards and other stakeholders to form a broad consensus. The government is also likely to inform the SC of its aforesaid decision when the matter comes up for hearing in September.

India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. As various provisions of these laws, based on scriptures, traditions and customs of religious communities, are  outdated and highly discriminatory against women, they militate against the very essence of democracy, basic human rights and secularism at large.

Therefore, the State should not distinguish between citizens on the basis of their religious beliefs and practices. While Hindu law overhaul began in 1950s despite the stiff opposition from conservative sections of the community, the personal law of Muslims has remained mostly unchanged.

The issue of common civil code is not new. It is as old as the Constitution.  There was a fierce debate on this in the Constituent Assembly. However, keeping in view the considerable degree of apprehension among the Muslim members in particular, it was placed in the Chapter of Directive Principles of State Policy under Article 44 of the Constitution. It directs, non-bindingly of course, that the “State shall endeavour to secure for the citizens a UCC throughout the territory of India.”

But for wholly extraneous reasons, various governments at the Centre refrained from implementing the reform despite sharp reminders from the SC from time to time. The BJP, after keeping this reform on backburner for long, now believes that there cannot be gender equality without common code.

All this notwithstanding, any move in this direction is bound to be resisted by the politicised sections of the religious orthodoxy in almost every community on the plea that their distinctive identities will come under threat. But, all such fears are clearly unfounded and baseless.

For instance, the penal provisions of both the Hindu and Muslim laws have already been superseded by a uniform criminal code without any disruptive effects. The Special Marriage Act 1954 is a similar measure under which two persons of different communities can marry one another without changing their caste or religion. The UCC, if enacted, will operate as one of the key instruments by which the law of the land can be made to prevail over customs of the minorities in matters other than those of faith.

In any case, the government will have to be very cautious and sensitive to the feelings of the minorities, especially Muslims, beset by a heightened sense of insecurity after the demolition of Babri Masjid and subsequent communal disturbances in Gujarat and Uttar Pradesh. 

Hence, any attempt to clumsily impose a uniform code on an unsettled minority could deepen the existing rift between the two communities. That no government in power at the Centre has so far initiated legislation on this aspect shows both a grasp of the politically explosive nature of the issue and a reluctance to run afoul of those who control critical vote banks.

Rights of women
Instead, the official policy has been to wait for reform from within the communities.  But it never happened so.  The outcome has been a triumph of the ‘status quo’ with the rights of the women being continuously compromised.  It is, in fact, this injustice which needs to be rectified without further delay. The government will now do well to frame a model civil code incorporating therein all progressive aspects of different religions which can be circulated and debated on a national scale.

The UCC has to be an amalgam of the best of laws drawn from all over.  Its drafting will have to be done not by government but by jurists, economists, social scientists and intellectuals from various communities, who have the welfare of the entire community at heart. And once the code is formulated, it is for them to spread the message across and win over the diverse dissenting groups. For a law – however necessary, effective and easy to operate –   gets reduced to a mere paper tiger, unless it is backed by strong and continuous public support.

Simultaneously, it is important to remove the doubt from the minority communities that in the name of UCC, they are being saddled with the Hindu law.  The Muslim fear that the code will rob them of their identity is without any logic and substance. Law is one thing, religion quite the other. It is the latter which decides one’s identity and UCC has nothing to do with it.

Code will not dictate to anyone the mode of worship or decide the number of times one must pray. It will not determine what festivals to celebrate or what ceremonies, rites or rituals to observe.

For the code to serve any meaningful purpose, it should not end up as an enabling measure, applicable only to those who choose to abide by it. Such a proviso will certainly defeat its real objective as it cannot serve as an effective deterrent to those who abuse personal laws to commit crimes against women.

One common law for all will also serve the cause of national integration. Since all sections of society will be equally affected by its enactment, no one will have any special cause for grouse or grievance, whatsoever.   

(The writer is a Supreme Court advocate)