Abstract
This paper is neither Pro BJP nor against the BJP. This paper is neither from a feminist perspective nor a religious perspective. This paper is from the perspective of a common man who is proud of his nation being called the ‘Unity in Diversity’ nation. He also wants the gender discriminations to be dealt without comprising with the diversity in an amicable atmosphere between feminists, religious fundamentalists and importantly religious Minorities.
There have been a lot of discussions and debates over the Uniform Civil Code since India’s Independence. Recently, debates over the Uniform Civil Code were ignited when the BJP government (BJP has clear majority and eventually it will have a higher hand even though it consults its allies before taking any decisions) assumed power at the Centre, which had Uniform Civil Code in its manifesto.[1] The Uniform Civil Code is one of the key points used by the BJP in their election campaign by which it strongly advocated that there can’t be equality for women until the Uniform Civil Code is adopted. Its leaders are stressing that the draft for the Uniform Civil Code will be introduced soon. On Dec 28, 2014 in an interview, the Minister of State for Minority Affairs Mukhtar Abbas Ansari felt that it is time to debate on this issue of the Uniform Civil Code at the grass root level to create a consensus[2] and Law Minister Ravi Shankar Prasad indicated the willingness of the Government to bring in the Uniform Civil Code.[3]
From the election campaign it had, the BJP will definitely look forward to go with the Uniform Civil Code though its predecessor the United Progressive Alliance didn’t touch the controversial issue. The need of the hour is to discuss the issue politically, socially and legally. The important questions regarding the issue discussed in this paper are:
- Is it possible to implement a Uniform Civil Code when implementing an absolute Hindu Code (Special Marriage Act and Indian Succession) Act is being almost impossible in India by way of Hindu Marriage Act, Hindu Adoption and Maintenance Act etc.?
- Does the judiciary play a role in all of this and if so, are they completely independent?
- Even if it is possible, how will the Modi Government who has been consistently criticised of being communal, overcome the criticisms and deliberate over the sensitive issue?
- If any mistakes have been committed by the government, can the minorities approach the Judiciary whose trust had been faded with controversial observations in cases like the Sarla Mudgal case?
This paper not only answers the questions but also tries to reach possible alternative solutions so that the debates won’t be futile and the discussions will be fruitful.
Introduction
Article 44 of the Constitution of India 1949 reads as:
“Uniform civil code for the citizens – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”
37% of the Indian population is illiterate.
Uniformity has not yet been achieved within the Hindu community as well. The customs and norms of Hindus in the North and South are very dissimilar. Sapinda marriages may be allowed in one Hindu community while it may not be allowed in another one.
Therefore, at the moment the concept of unity by enacting a Uniform Civil Code should not be considered and the main focus should be to bring about changes in the personal laws. But this change should be a slow change as people will not be ready to change their laws instantly. Also provocative statements such as calling India a Hindu Rashtra will only increase the tension as it will create the sense of distrust among the minorities. India is a secular nation and we believe in the concept of unity in diversity.
Is it possible to implement a Uniform Civil Code when implementing an absolute Hindu Code is almost as difficult in India?
During the constitutional debates, B. R. Ambedkar noted that the only province in which the civil law has not been able to invade is marriage and succession. “It does not say that after the code is framed the state shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future parliament may make a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage of application of the code may be purely voluntary”.
Despite this, there are central civil laws to govern marriage and succession. The Special Marriage Act and Indian Succession Act were enacted to govern over matters pertaining marriage and succession, the former being purely on voluntary basis and the latter saving customs and traditions according to personal laws. This is reason why the feminists and other activist groups are still fighting for the Uniform Civil Code which according to them will wipe out gender inequality and promote equality.
It will be a fallacy to think that Hindus have a common law under Hindu Code. For example, Sapinda relationship[8] which is not followed in North India and prohibited in the act is still being practised in southern India. Customs are placed at an important position over law. Section 29(2) of Hindu Marriage Act[9] says that nothing in the Act shall be deemed to affect any right recognised by custom. The provisions under the Hindu Code are not common for all Hindus, there is diversity among them. Further, provisions of law save the customs. So it is inappropriate to think majority of the population is under common law.
The role of judiciary and the freedom in judicial interpretation
Even the judicial system is not an independent body which can be unaffected by social or political pressure. Judicial interpretation can be affected by personal prejudices as can be seen in the recent case relating with the Jats.
The Jat people are a traditionally dominant agricultural community in Northern India and Pakistan. They have been known as zamindars (landowner) since the Mogul emperor, Akbar’s reign in the 16th century. Other occupations pursued by the Jat are animal husbandry, transport business, trade, and government and private service, and are teachers, doctors, engineers and surveyors.[10]
The Government had planned on including the Jats into the Other Backward Class (OBC) category. The Supreme Court quashed this decision[11] and stated that, “Caste, though a prominent factor, can’t be the sole factor to decide backwardness…Backwardness has to be social backwardness and not educational or economic backwardness.”[12] This has brought a lot of ruckus especially within the Jat community. A Jat group actually warned the Government that they would block basic supplies such as milk, water and electricity.[13] The Government has sought out to review the reasons for the Supreme Court taking such actions and for the time being, has put a hold on the announcement of the Union Public Service Commission (UPSC) Civil Services Examination results. The Government will most likely file a review petition seeking a review of the judgment given on 17th March by the Supreme Court.[14] The Supreme Court was previously prima facie convinced that the reservation for the Jats under the OBC category was correct[15] but in a few months of time their entire rationale changed.
The question that arises here is why did the Supreme Court chang its opinion within a few months. The Bharatiya Janata Party (BJP) wanted the Jats in the OBC category while the then Government, Congress, wanted to keep them happy as well. To do this a proxy implementation was given. The Modi Government got the Jat reservation cancelled by the Judiciary and then filed for a review petition to bring it back portraying the BJP as the saviours.
With the judiciary operating in such a way, it is difficult for India to form a Uniform Civil Code which really lives up to the name of unity in diversity.
Even if it is possible, how will the Modi Government who has been consistently criticised of being communal, overcome the criticisms and deliberate over the sensitive issue?
Apprehensions among Minorities will be created with every dialogue by the BJP government since it is a Majoritarian government with religious backdrop. For example BJP in its manifesto said that while drafting the Uniform Civil Code, priority would be accorded to best tradition and it is the duty of the BJP to address those apprehensions and clear them. [16]
Since the Rashtriya Swyamsevak Sangh (RSS), parent of BJP has been demanding a Uniform Civil Code, there is an apprehension that the RSS wants to curb minorities and it wants India to be declared Hindu Rashtra. It should be made clear that it is not the motto of RSS but it is incorporated in Article 44 of the Indian Constitution.
Minorities may apprehend that it is a trick to impose the hegemonic Hindu tradition as the Uniform Civil Code. To tackle this, awareness should be brought among Minorities mainly by the BJP. For example, polygamy is not allowed in Hinduism[17] but allowed in Islam[18]. Definitely in the Uniform Civil Code, polygamy will be punished. The reasoning should be that polygamy is against the basic structure of the constitution but not Hinduism that is against polygamy. The political rivalries should not use these sensitive issues and should not politicise it because the BJP Government dared to come front on the issue of the Uniform Civil Code.
Though PM Modi has clarified that UCC doesn’t mean that all the Indian diverse communities will be brought under Hindu Code[19], there hasn’t been enough contention among Minorities. Even in such a case where this Government wants to enact the Uniform Civil Code, it should pave way for a peaceful atmosphere and clear all apprehensions about its religious background, so that there will be a healthy debate and discussions over the issue.
If any mistakes are committed by the government, can the Minorties approach the Judiciary whose trust had been faded with controversial observations in cases like the Sarla Mudgal case?
In the Sarla Mudgal case[20]the issue was whether a Hindu husband, by converting into Islam could overcome the restriction of bigamy under Hindu law. It was held that there is no connection between Religion and Personal law. Article 25[21] guarantees freedom whereas Article 44 seeks to deviate religion from social relations and personal law. The court ascribed the problem in this case to the plurality of personal laws and stressed the need for a Uniform Civil Code. The Judges felt that there is need to expedite the implementation of Uniform Civil Code.
One of the two Judges, Justice Kuldip Singh compared the Uniform Civil Code to that of the personal law of the Hindus. He noted that the personal law relating to marriage, succession and the like have a sacramental origin. Hindus along with Sikhs, Buddhists and Jains have compromised with their sentiments in the cause of the national unity and integration when Hindu law was codified.
Those who preferred to remain in India fully knew that the Indian leaders believed in the one nation theory which cannot be challenged by any community on the basis of religion. The legislation and not religion being the authority which permitted the personal law to operate, can be supplemented by introducing a Uniform Civil Code.
The other Judge, Justice R.M.Sahai opined that no religion permits distortions. To check the misuse, he cited countries like Syria, Tunisia, Morocco, Pakistan and Iran where polygamy has either been totally prohibited or restricted. The Judge observed that a unified code is necessary both for protection of the oppressed and promotion of national unity and solidarity for which the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity.
The Apex court in this case called for urgent remedial measures by the Government. The court mainly focused on the blatant misuse of Islamic law in polygamy. This abuse of Islamic law has been done by non Muslims as well, as even in this case. The court to prevent the abuse of Quaranic law, suggested a Uniform Civil Code as a remedy and showed Hindu law as a model. However, codified Hindu Law has discriminatory provisions, on religious and sexual grounds and does not satisfy the ideals of secularism and gender justice.
It would have been better if Justice R.M.Sahai had not brought up the issue of the one nation theory because sensitive issues like the Uniform Civil Code and personal law reform should be kept at a safe distance from the controversial issues like partition. These issues have to be kept in their proper perspectives by advocating necessary reforms to stop the abuse of religious law. As time progressed, it created much more apprehensions in the minds of minorities.
This kind of unexpected commentary from the judiciary, put the few pro Uniform Civil Code minorities into back seat. This made minority communities to take any act as an attack on their religion.
It is the duty of the judiciary to reclaim its faded trust among minorities.
Conclusion
The government needs to build trust and faith in people and there should be an amicable atmosphere to discuss these type of sensitive issues. The trust building issues of the Judiciary and the Government will take a long time and since the Government promised for a Uniform Civil Code, there may be a rush for it which may result in disastrous consequences. So alternative solutions, which may satisfy feminists and help BJP in keeping its word, should also be looked and debated upon.
Solution 1:
Since plurality of laws cannot be fully compromised in the name of women rights, without compromising diversity and women rights, as in Hindu Code, a Muslim code etc. can also be enacted. Religious laws can be codified like Hindu code by making them more gender neutral; but this may create inter-religion differences.
Solution 2:
Dealing with only discriminatory laws, thereby simplifying the laws for the time being is another alternative. As Section 125 is neutral and applies to everyone. Identifying the discriminatory laws and codifying them because it should not go in the sidelines with the Women Reservation Bill which is in cold storage for 16 years and still counting.
After all we are proud of EK BHARAT SHRESHT BHARAT; it is a plurality of religions in a single country. Unity in diversity is the hallmark of India. So INDIA to remain diversified will be better by correcting the gender discriminations in personal laws.
By: Harsh Mahaseth and P J Theja Saai
References
[1] India’s BJP manifesto pledges uniform civil code: what do you think of the legislation?, The Guardian, April 7, 2014.
[2] BJP working towards a Uniform Civil Code, Rediff, December 29, 2014.
[3] Centre hints it’s willing to bring in the Uniform Civil Code, Indian Express, July 15, 2014.
[4] India’s illiterate population largest in the world says UNESCO report, The Hindu, January 30, 2014
[5] http://www.worldometers.info/world-population/india-population/
[6] India’s poverty level falls to record 22%: Planning Commission, Live Mint, July 23, 2014
[7] Archana Parashar, Amita Dhanda, Redefining Family Law in India
[8] Section 3(f) of the Hindu Marriage Act, 1955
[9] Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.
[10] Khazanov, Anatoly M.; Wink, Andre (2012), Nomads in the Sedentary World, Routledge, p. 177,
[11]SC rejects Jat reservation in PG medical and dental courses, Times of India, March 31, 2015
[12] A. Vaidyanathan, Supreme Court Cancels Cnetre’s Decision to Grant Reservation to Jats, NDTV, March 17, 2015
[13]‘No power, water to Delhi if Jat reservation not restored’, Business Standard, April 18, 2015
[14] Centre likely to move Sc seeking review of order on Jat reservation, First Post, March 27, 2015
[15] SC backs Centre on reservation for Jats in government jobs, IBN Live, April 09, 2015
[16] Supranote 1
[17] Section 5 of the Hindu Marriage Act, 1955
[18] verse 4:3 of the Quran
[19] Uniform Civil Code does not mean thrusting of Hindu laws: Modi, The Hindu, May 6, 2014
[20] Smt. Sarla Mudgal, President v. Union of India & Ors, 1995 SCC (3) 635
[21] Freedom of conscience and free profession, practice and propagation of religion
