SandeshIndia

Common Civil Law

BACKGROUND PAPER FOR THE ROUND TABLE CONFERENCE ON: NEED FOR COMMON CIVIL LAW The founding fathers of our Constitution were strongly of the view that a uniform civil code should be guaranteed to the Indian people with in a period of five to ten years so that all laws – civil, criminal and personal are in accordance with the fundamental rights – Equality and justice – guaranteed by the Constitution. One cannot deny that IPC and CrPC also need to be reviewed being based still on the British law. Some changes are introduced in them from time to time just as some of the personal laws applicable to almost 80% of the country’s population have been codified. However, even after fifty-five years, because of perverse secularism and perverted communalism, a uniform civil code has not come into being. It has led to complications in application of the Constitutional rights and of the codified laws while interpreting uncodified personal laws. Article 14 (is a fundamental right) guarantees equality before the law and equal protection under the laws. Under Article 15 it is guaranteed that the States shall not discriminate against any citizen on grounds of religion, caste, sex etc. Article 13 provides that all laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency be void. Article 44 also directed the government of the day to pass a uniform civil code through parliamentary procedure. No government has so far done this simple procedure to bring the personal laws of all communities in line with the constitutional guarantees. However, Article 25 of the Constitution is the most discriminatory against women. According to this women’s legal rights are governed by the personal laws of each community and thus negate the basic right of equality before the law and discriminate not only between men and women but also between women and women because of the differences in their personal laws. It is to bypass this discrimination that we need uniform family laws. How can `personal law’ which is enforced every day by law courts not be law for equality purposes and yet have to face the dispensation of courts’ judgments under Article 13. It is also difficult for judges to evaluate personal laws against equality standards, which can be limited only to the codified law. As long as personal law is codified it becomes LAW and can be struck down on fundamental rights ground. All India Muslim Personal Law Board set up in 1972 and similar institutions among the Hindus (HVP or Shankracharyas) Christians and other communities have taken over themselves to represent all Muslim, Hindu and Christian public opinion. They give themselves the veto right on personal laws by opposing all progressive change. They represent themselves as the vote bank of the communities grabbed by all political parties. To say that Muslim law needs change is as relevant as to say that the Hindu law is not equal and needs review based on the two principles of equality and justice The issue, however, is not political and religious but that uncodified personal laws which govern ordinary people’s lives which need to be examined for injustice. Under the justice argument, the religious laws and practices must yield to the equality and due process etc. We need to do it, so JUST DO IT. If, however, in some areas the proposed change is too controversial only way to decide it is through mass PUBLIC OPINION, CALL IT REFERRENDUM IF YOU MAY. If the country can have a common Indian Penal Code (IPC) and Criminal penal Code (CrPC) what prevents it from having Uniform Civil Code (UCC) In a secular country, which guarantees equality and justice irrespective of sex, caste or creed, to have and support existence of uncodified personal laws which are anything but gender equal or just, causes a hell of a confusion before the judges who have interpreted the constitutional guarantees with unequal personal laws using Article 13, with reluctance. Under the Constitutional guarantee of justice and equality argument, the religious laws and practices must yield to the equality and due process. What is happening as a result of this confusion is: The courts have insisted on codification of the laws so that their judgments as in case of Shabano case can have the legal binding and no political pressure can negate their verdict. Shahbano case was not a matter of religion or Islam but right of a destitute divorced Muslim woman to be maintained at least at the subsistence level by her husband. Instead of accepting the verdict of the court, a derogatory act, the Muslim women (Protection of Rights on Divorce) Act was passed in 1986 to provide for some sort of maintenance to Muslim divorcee and neutralized the effect of the Supreme Court judgment. It gave the parties to the divorce an option for application under section 125 Cr PC for subsistence or ask for subsistence from a relative of the husband through a verdict from the Muslim Personal Law Board. Thus the Muslim husband's right not to maintain a divorced wife has been protected. Similarly, a case of demand for divorce by a Christian woman on ground of cruelty (granted to a Hindu woman) was rejected. She could seek divorce only under charge of infidelity by the husband. Section 494 of the IPC does not allow sneaking by a Hindu male through conversion to Islam to marry another woman without divorcing the first wife by making use of personal laws of another religion. Courts have given judgments that personal law of the religion at the time of a man’s birth will apply. However, personal laws of other communities do not fall under this section. Because of the confusion the Supreme Court has asked the Government, time and again to implement Article 44 of the Constitution and urgently pass a uniform civil code both for protection of the oppressed and promotion of national unity and solidarity. Justice P B Sawant, chairperson of the Press Council of India, was the most vociferous among them: "Personal laws don't belong to any particular community. But politicians raise a bogey of religion to foil attempts to amend them." He strongly advocated a view that a uniform civil law could be drafted, incorporating all good aspects from all the personal laws existing here. Irrespective of caste, creed or religion, Goa's family laws provide for compulsory registration of marriages to avoid multi-marriages, stringent provisions for divorce, equal sharing of property among husband and wife and equal rights of inheritance among sons and daughters. Because of equality in personal laws atrocities on women are less in Goa compared to other states. A Uniform Civil Code is needed not only on account of Constitutional need for equality and justice and reduction of exploitation of women but PUBLIC OPINION ALSO FAVORS A UNIFORM CIVIL CODE See Times of India, Opinion Poll taken on June 23, 1995 where 73% welcome the Supreme Court decision invalidating second marriages and Hindu husbands converting to Islam, 84% favor a Uniform Civil Code, 61% favor a uniform code even though Hindus may lose tax savings privileges through the device. 64% disagree with the PM that a uniform code should be introduced only if minorities want it. 74% favor compulsory registration of all marriages It is worth noting also that Muslim feminists join Hindu feminists in demanding changes in the law that would give more protection to Muslim women. The problems that women face in India within their families are uniform, regardless of their religion, caste or community. Yet they are governed by multiplicity of family laws, which divides and weakens women at the crucial moment when they need to garner all support. It is necessary to assert for women an identity that lies outside family or religion and the Uniform Civil Code can only do this. The idea of making one family law for them i.e. a Uniform Civil Code is partly rooted in this reality. The position taken by the political parties that time is not ripe for the Uniform Civil Code should not be given any credit because as we have mentioned above public opinion and women demand it. Should reform be the torchbearer for advancement of the society or follow its acceptance at the cost of denying justice to a whole generation. Reforms and legislation are accepted by the society if these are motivated for the good of the people and their true benefit e.g. Sati Act, Hindu Code Bill and others. It was on the same premise of introducing reforms towards equality that 73rd and 74th Amendment to the Constitution was made. But under the pretext of dividing women on religion and caste basis political parties, who use religion and caste as a vote bank, are opposing affirmative action for representation of women in Parliament and state legislatures. Every time change is demanded to achieve equality through a legal process, it is opposed through a nexus of politicians and communalists elements and not by the PEOPLE per se. It is time that such fundamental right as GENDER EQUALITY in all spheres of life be mandated from the voters rather than appealing for support from politicians and religious leaders. A People’s mandate will be mandatory for all political parties to implement. Procedures for such mandate by the voters on crucial political decisions exists in many democracies and should be evolved in India to settle once for all , most of the contentious issues; GENDER EQUALITY BEING THE MOST IMPORTANT AMONG THEM Kamla Nath, Member Joint Action Fund For Women Director Sandesh India

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