Uniform Civil Code: Implications of Supreme Court Intervention

Author(s): S. P. Sathe
Source: Economic and Political Weekly, Vol. 30, No. 35 (Sep. 2, 1995), pp. 2165-2166
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4403156
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 personal laws which is a precondition for
Uniform Civil Code the emergence of a uniiform civil code gets
delayed if onie buttresses the case for it with
Implications of Supreme Court Intervention such emotive arguments.
The Constitution doubtless visualises the
S P Sathe emergence of a uniform civil code but does
it mean a single law for all? Can we not have
different laws for different communities
Diffrrent ethtnic, religious and linguistic groups have different traditions
provided they are based on uniform principles
tantd cultures aind thex (are entitled to preserve them. Their personal laws
of gender and social justice?
are based o01 tilese tralditionts at nd culItures atnd therefore cannot be Article 44 of the Constitution which
obliteraite(l jus.t for the stke of uniformity. A unlujrrn law will have to contains one of the directive principles of
(cK ommodate such ritualistic dliversities. state policy needs to be interpreted in
consonance with the spirit oftheConstitution.
IN a recent case (Sar-la Mldtgal) where a tor the majority community and yet can we What the directive principle of state policy
Hindu had converted himself to Islam in say that ther is integration within it? There means is that there should be uniform laws
order to marry a record wite while the first are disputes between the ssavarnas' and the but not necessarily a common law. The
was living.the Supreme Court was provoked dalits' and between various linguistic expressions 'uniform' and 'common' are
to ask the uniiof eovcrnment what it had groups. Did peoples of Karnataka and Tamil often used interchangeably but they have
done in pursuance ot the directive principle Ndtdu not kill each other recently when theydifferent connotations. Extension of' the
o1 staite policy containied in article 44 of thequarrelled over the waters of the River majority community's law to all the
Constitution. which enJoins upon it to) take Cauveri ? Such dissent does niot disappear by minorities would doubtless miake for a
sleps lor providing a unilori cis Iode. the presence of al common law. Democracy common law but would it make a uniform
T'his has triggered a debate on this subject admits dissent and since ours is a plural law' The word 'uniform' in article 44 means
againi. While unif6orm civil code as ain ideal siciety any ctlort to regiment various ethnic that all comnmunities must be governed by
is doubtless laudable, the timing and the and linguistic groups into a uniform mould uniform principles of gender justice and
occasion lor the Suprenie Court's inter- could be counterproductive. Identity must human justice. Each personal law therefore
vention was not opportune. Further, the be distinguished from separatism. Having needs to be critiqued from the perspective
sl)eeches whichi the judges hlave maide arc distinct identities is not against national of social and gender justice. It will mean the
likcly toi be milsunderstood and could send integration and they do not necessarily lead niodernisation and humanisation of each
wrong signails to various quarters. They coul(dto separatism. Difterent ethnic, religious and personal law. A uniform law would mean-
strengtlhen the mai(joritarian chauviniism on linguistic groups have different traditions not necessarily a common law but different
the one hanid and Ininority lundamentalism and cultures and they are entitled to preserve personal laws based on uniform principles
on the other. them. Their personal laws are based on such ot' equality of sexes and liberty of the indi-
In fact uniform ci% iI code, like the cause variety of traditions and cultures and therefore vidual. Let there be reform of each personal
ot Hindi as a national language has suffered cannot be obliterated just for the sake of law so as to weed out gender injustice and
cdiue to overenthusiastic espousal by its uniformity. outmoded traditions or practices. Article 44
ertusaders. The minorities, including the One does not necessarily subscribe to theof' the Constitution must be interpreted in
Muslims. might have been less resistant to two nation theory or multiple nation theory conjunction with article 14 of the Constitution
modernisation of their personal laws, if the by insisting upon the preservation of the which guarantees equality before the law
kinid of arguments which are often made bystatus quo. Within one nation there can exist and equal protection of the law. Article 14
its supporters had been avoided. Some such a number of legal systems. In fact federal allows classification of the people and
airguments were unfortuniately aired out bygovernment means the coexistence of such traditions, cultures and even religion in
the learned judges ot'the Supreme Court and multiple legal systems. Our Constitutioni conjunction with either or both of them
this lurther complicated this issue. places the plenarv legislative power in respect could be the basis of classification. This was
One of ihe judges Justice Kuldip Singh of family, inheritance, adoption, etc, in the the essence of the decision given by the
said that a unif'orm civil code would Concurrent List of the Seventh Schedule Bombay High Court in Narasu Appa Mali's
strengthen national integration and that the case in which two of India's most versatile
thereby implying that both the centre as well
mlinorities should give up their commitment as the states can make laws on these subjects. judges namely, Chief Justice Chagla and
to the two nation theory and agree to a This means that Maharashtra may have its Justice Gajendragadkar (who later became
uni'form civil code. It was further said thatown family law different from that of the chiefjustice of India) upheld the Bombay
the Hindus had accepted reforms in their Karnataka. In the US, each state has its own Prevention of Bigamous Marriages Act, 1946
personal laws and sacrificed for the nationalmatrimonial law. on the ground that the prohibition of
uLlity. The learned judge therel'ore exhorted Those who oppose changes in the personal polygamy among Hindus was not a
iie state to take steps to provide a uniform laws are not necessarily anti-national, though different treatment to the Hindus on the
Livil code. Now that the Supreme Court has we may call them status quoists and ground of religion but was because of the
observed that the above observations were conservative. If you read the rep6rt ofdifferent
the traditions, history of social reform
not binding and were merely obiter dicta, Hindu Law Reform Committee chaired by and cultures. Certainly there can be no
they need to be carefully examined becauseB N Rau, you will see that various objections discrimination on the ground of caste or sex
even the obiters of the Supreme Court are to the reform of the Hindu Law had been and therefore such traditions which place
worthy of' greatest respect. raised by leading members of the majority women in subordinate position will have to
We already have uniform laws in matters community and some of those objections be disregarded. Revision of the personal
other than ftamily affairs such as marriage, were similar to tho!se which the minority laws from such standpoint will ultimately
divorce, miaintenance, inheritance and leaders raise today. Even Rajendra Prasad, take us towards a uniform civil code. Such
adoption. The assuniption that unit'ormity who was the president of India was not uniformity can sustain the diversity of the
produce.. harmony aind integration itself favourably disposed towards the proposed laws. Uniform civil code should not be
needs to be questioned. We have one law rCforms of the Hindu Law. Reform of theconstrued as a mandate for regimentation of

Economic and Political W'eekly September 2. 1995 2165

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the laws because such regimentation smacks can legislate under sub cI (b) of cl (2) of A debate would take place on whether a
of totalitarianism. article 25. Polygamy, unilateral divorce, person's right to dispose of his property by
T'he central government, however, cannot absence of provision for maintenance for a will should be restricted as is done under
be absolved t'rom the charge of having divorcee are some of the curses which deserve the Muslim law. It would be fiercely opposed
neglected the welfare of the minority to be weeded out. by Hindus, Christians and Parsis who would
communities. On the one hand it took no The Indian Secular Society has published say that such a restriction would go against
iteps to moderrnise and reform the law of a draft Indian Marriage and Divorce Act individual liberty. The Muslim law provision
illarriage and divorce pertaining to the prepared by the scholars of the ILS Law on the other hand would doubtless ensure
Christians in spite of several requests from College, Pune. Another draft on the law of gender justice because daughters are often
that community. The Law Commission made inheritance and succession is in the offing. denied their inheritance by the willinlg away
a study of that law and gave its report. (80th A draft of the common law of adoption has of the property.
Report, 1980) and the Supreme Court as also been prepared by some organisations. Each community would like to enjoy its
well as several high courts have exhorted The draft (,- Mqrriage Law published by the freedom regarding religious rites performed'
Indian Secular Society is flexible enough to
the government for its inaction (Shah Bano, on a wedding. The insistence ot'the secularists
Marv Ro\ and Swalmna Ghosh. See Sathe accommodate the diversities of traditions that religion must be banished f'rom all
1991) and culture prevailing among various worldly affairs may be ideologically sound
On the other hand it nullified whatever communities in a uniform law. These drafts but practically not wise. Even the mighty
had been achieved through judicial process are intended to serve the purpose of providing Soviet Union did not succeed in banishing
towards the mitigationof thegenderinjustice a basis for a meaningful debate on the subject religion. The uniform law will have to
in the Muslim Personal Law through which will be free from acrimonious or accommodate such ritualistic diversities
decisions such as Shall Banzo. In that case, chauvinistic overtones. What is important is that the process of
the Supreme Court held that a Muslim While making these drafts we realised taking steps towards a uniform civil code
divorcee was entitled to maintenance under how difficult it would be to arrive at a should begin. So far this matter has suffered
section 125 ot the Code of Criminal common law. Our draft therefore hasi to either from total neglect of the governments
Procedure f'romn her husband even after the
accommodate diversities that exist in the or aggressive postures of the majoritarian
period of"iddat' The passing of the Muslim personal laws. For example, the rules elements.
Womien's Right on Divorce Act, 1986 was regarding the prohibited degrees of
the most regressive legislative intervention relationship are different in the Muslim References
which boosted the morale of the Muslim Personal Law from those in the Hindu Law.
fundamentalists anid orphaned the Muslim A Muslim can marry his first cousin or Sathe, S P (1991) !Secularism, Law and
di\ o)rcees. should a Hindu be permitted to marry a first Constitution of India' in NI S Gore (ed)
Secularism in India, pp 39 to 60, Indian
We feel happy that the union government cousin whereas such a marriage is totally
Academy of Social Sciences.
is now taking up the rcform of the Christian forbidden for the Hindus. Should a Muslim
Niarasu Ap)pa Mali, All India Reporter 1952,
Matrimonial Law. This could be the be prohibited from marrying the first
Bombay, p 84.
beginning of the process of modernisation cousin or should a Hindu be permitted to Sarl(a . Mudgal (1995): Supreme Court Case,
ot'the personal laws. The government should marry a first cousin'? Why should we really Vol 3, P 635.
f'ollow this up by a law of adoption l'or all do that? Is it not better to allow each of these Shah Batno (I 985): Supreme Court Cases, Vol 2,
the communities. Such a law is necessary communities to follow their own traditions'? p 556.
because at present the facility of adoption
is not open to the minority communities.
Under the Hindu Adoption Law, only a
Hindu can adopt and only a Hindu child,
either born as a Hindu or brought up as a
Hindu can be adopted.
Legislation for the Muslims caniiot be
indet'initely postponed. The argument that
DECENTRALIZED MULTILEVEL PLANNING:
personal law is immune t'rom the interven- Principles and Practice
tio(n of the sovereign legislattire is not
sustainable. The right to be governed by (Asian and African Experiences)
personal law was never considered as part K. V. Sundaram
of'the right to freedom of religion guaranteed
by article 25 of the Constitution. Moreover, Hardbound Rs. 500
f'rcedom of religion guaranteed by article 25
The author has attempted to present a coherent account of concepts,
ot the Constitution is subject to "other
provisions ot' this Part" which means it is principles and practices in Decentralized Multilevel Plainning. The book is
subject to the provisions contained i'n Part 11I in 20 chapters. eleven of which deal with Conicepts and Principles, four deal
whi ch contain guarantees of the fundamental with country experienice and five deal with Traininig Issucs.
rights. Evcn if freedom of' religion
KV. Sundaram is Joinit Adviser (Reid.) Planniing Comminiissioni and
conmprehends the right to be governed by
personal law, it does not cover the right to .Consultant, Food & Agricultural Organisation, of the United Nation.
perpetuate denial of equality or personal Publishers:. Ph.: 5554042, 5504042
liberty to a section ol people who are
governed by such personal law. Reform of CONCEPT PUBLISHING COMPANY
the personal law would be for making these A/15-16, Conmiiiercial Block, Mohani Garden,
lawws consistetit with the fuindamental rights New Delhli - 110)059 (India)
ot' the women f'olk andi would also be a Cable: CONPUBCO Fax: (011) 5598898
mealsure of' social welftare f'or which the state

'1 66 Economic and Political Weekly September 2, 1995

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