Thursday, September 3, 2015

// // 1 comment

Uniform Civil Code - Balancing Tradition & Pragmatism


Recently in an article published in a national daily about Muslim ladies against the practice of divorce in the community by simple “3 times talaaq” method. It obviously seems derogatory and regressive practice and needs to be done away with. This and many such aspects are what transcend into the need for a Uniform Civil Code. I have been thinking on the topic for some time now and this article did push me towards documenting my thoughts.



Politics is always the primary driver of public policy and when you embrace democracy one can only expect it to be the way of life. Off and on one of the issues that has captured limelight and created furore in power corridors of India is – Uniform Civil Code or UCC. Before one goes into the specifics, it would be better to understand what is meant by the term Uniform Civil Code. The term “civil code” covers the entire body of laws that governs the rights relating to property and personal matters like marriage, divorce, maintenance, adoption and inheritance. A uniform civil code tries to unify all the existing “personal laws” of the different communities to have one set of secular laws that will be equally applicable to all Indian citizens. The reason for UCC having become controversial is that it has become entangled in vote-bank politics prevalent in India. The end result has been that a measure that can help modernize India’s archaic personal laws has remained an ideal.

A good reason for implementing UCC is that it could help the process of national integration. Presently in India different communities have different personal laws. Thus laws that govern inheritance or divorce among Hindus are different from those that govern the Muslims or Christians. This in itself may seem to be innocuous; one should have to wonder why rules should be different for different people. While one may be allowed to marry to four wives at a time, it is a crime for another citizen of same country. Such disparities create inherent loop holes in our laws which have at time been leveraged by unscrupulous individuals in their favor. And it is not only mere mortals like you and me who may think about the utility of having a uniform code to rule the country. The Supreme Court, the highest court of the land, has also highlighted its need. It said this in the Shah Bano and the Sarla Mudgal cases. In the latter case, the Supreme Court actually issued a notice to the Government to explain why steps had not been taken to implement Article 44. Article 44 of the Directive Principles of State Policy clearly states that the “State shall endeavor to secure for citizens a Uniform Civil Code throughout the territory of India.” Various judicial luminaries, including those in the Constituent Assembly have time and again highlighted the need for UCC.

Having said that one may wonder why such an important legislation has not seen its day in Parliament. Well to my knowledge, divisionary politics seems to be the only answer. Each party has a devoted set of communities and groups who vote who they take for granted as their vote-bank. Now if we have a law that unifies the community at large, such parties would be at major loss in terms of strategy. It is only until the people have reasons as these which create obvious differences between them that these parties can continue to exploit these differences and maintain their vote-bank. As long as right for one is wrong for other it is obviously going to keep the divide alive. Now that we have a government which enjoys majority in the Parliament, why is this issue still in backburner, especially when its leaders have time and again iterated their commitment towards bringing such a unified law. Uniform Code of Conduct would need passage of a constitutional amendment and hence needs support of 2/3rd majority. Moreover, even this government lacks a majority in Rajya Sabha. These two are definitely providing an adequate cover to the government for keeping this issue under wraps.

However it is not only the political parties who have kept this as abeyance. Even the society at large is apprehensive about this issue as it hasn’t been adequately communicated by its proponents. The lack of any specific information on the shape of the UCC has created confusion. This ignorance has forced minorities to identify UCC with a mere imposition of the Hindu Personal Law. It is unfortunate that the debate over the UCC has only highlighted the personal laws of the Muslim community. A UCC can also help to remove certain gender biases found in the Hindu society. One such is the concept of the Hindu undivided family (HUF). HUF is designed to ensure that the properties remain with the male descendants of the family. This aspect was also upheld by the Supreme Court, which ruled that even if no male member is left in a family, a female member couldn’t become karta or in-charge of the ancestral property. It can also help make it mandatory for all marriages to be registered under the Special Marriage Act. The Special Marriage Act requires that the man be above 21 years and the woman be above 18. If such a declaration is made an essential part of marriage under UCC, it will go a long way in checking child marriages.

The clarification given by Atal Behari Vajpayee in a newspaper interview in January 1998 does put up the soul of Uniform Civil Code. He said, “There is no question of imposing Hindu laws over other communities. There will be a new code, based on gender equality and comprising the best elements in all the personal laws.’’ Definitely after this statement nobody should have a cause to complain about a uniform civil code being passed in India.

However, do we really think it is time to move forward in this aspect? According to many social and political leaders, it is felt that India is not ready for UCC. This view is supported by the fact that the demand for UCC should come from the minorities themselves. Also while it is correct for the state to interfere in a criminal case, when no violence is involved the state has no business to interfere. In other words, the state has no reason to interfere in the private lives of its citizens. Also, is it possible for a law to change the generations of traditions that every community have followed. Forcing them to change their inherent beliefs has potential to create upheaval in the community. Moreover, many self-obsessed intellectuals like me may have specific illustrations to highlight the need for such uniformity; majority of society is content with the current system of affairs in terms of civil law. Another major reason why a UCC should not be introduced at least immediately is that the Muslims- the largest minority in the country has an irrational fear that it targets them. Indian political parties, without any exception, have failed to allay this fear of the Muslim community. For them, their personal laws balances the feeling of inadequacy on account being a minority and gives them a sense of security.

While it is an undeniable fact that a UCC can help modernize the personal laws in India, care has to be taken that it is implemented only after serious deliberation. It must be made only after arriving at a consensus that will take into consideration the fears of the minorities. Father Dominique Emmanuel of the Catholic Bishops Conference of India when he said, “We are not averse to any progressive legislation but it has to take into account the current socio-political situation and the sentiments of everyone involved” highlighted this aspect.

A ray of hope comes from the only state in India where a Uniform Civil Code, despite certain deficiencies. Goa, the smallest state in the country, has a UCC that is accepted by all communities - Hindus, Christians, Muslims and others. It is known as the Goa Civil Code or Family Laws. The laws had been framed and enforced by the Portuguese colonial rulers through various legislations. Due to the support it enjoyed among the Goans it has continued even after the liberation of Goa in 1961. If one state can have a UCC the whole nation surely can have one. Now if this becomes a reality or not, it is for the time to tell !!

1 comment:

  1. WOW just what I was searching for. Came here by searching for desperately

    ReplyDelete