CHAPTER - IV PURPOSES/OBJECTIVES OF THE UNIFORM CIVIL CODE IN INDIA aCHAPTER - IV PURPOSES/OBJECTIVES OF THE UNIFORM CIVIL CODE IN INDIA Indian freedom movement was fought for certain ideals and when it is freedom was achieved, the efforts were made that the Indian Constitution should incorporate that ideals. In the Constitution making process it was realised that all the ideals of the freedom movements could not be achieved in one day, therefore, certain ideals were given more importance and incorporated in the form of Fundamental Rights and rest of the ideals, having economic social and political implications were incorporated as the Directive Principle of the State Policy. In this study we have already shown that the ideals of UCC was also incorporated in Constitution as a Directive Principle. Here, the question arises, what were the purposes which were sought to be achieved by the founding father by a UCC? If we analyse the reason, causes and purposes of the UCC we find several analysises in which various factors have been enumerated by the commentators . The purposes which have been emerged as the most important may be discussed under the following classification : A. The UCC as a means to achieve unity and integriety of the society or nation. B. The UCC as a means to achieve equality and gender justice in Society. C. The UCC as a means to achieve secularism in India. D. The UCC as a means to achieve clarity, simplicity and intelligibility in the personal laws.100 A) THE UNIFORM CIVIL CODE AS A MEANS TO ACHIEVE UNITY AND INTEGRIETY OF THE SOCIETY / NATION : From the dawn of the civilization the unity: and integriety of the society or nation has been one of the cherished goals, and India is no exception to it. After the tragic partition of the country our founding fathers made every efforts to achieve this goal through the various provision of the constitution. The goal of unity and integriety of the nation was so dear to the founding fathers that they even adopted various innovative concepts in the constitution.? 1, For example, under the Indian Constitution framers adopted an innovative version of the federalism and the Republic of India was described as ‘union’ and not federation’ (Article-1). The founding fathers had a purpose in choosing the word ‘union’ in preference to ‘federation’. They were of the view that the word ‘union’ better expresses the fact that the Union of India is not the outcome of an agreement among the old provinces with result that it is not open to any State or a group of the States to secede form the union or the vary the boundary of the States on their own free will. Explaining the reason behind this move the Chairman of the Drafting Committee. Dr. Ambedkar said : "But I can tell you why the drafting committee wanted to make it dear that though India was to be a federation. The federation was not the result of an agreement by the States to join in a federation and that the federation not being the result of an agreement no State has the right to secede from it. The federation is a union because it is indestructible. Though the country and the people can be divided into different States for convenience of administration the country is one integral whole, its people a single people living under a single imperium derived from a single source. The Americans had to wage civil war to establish that the States have no right to secession and that it was better to make it clear at the outset rather than to leave it to speculation”, VII C.A.D. P. 48.101 Here, it may also be pointed out that the successive governments have made every efforts to protect the unity and integriety of the nation. In this connection by the Forty Second-Constitutional Amendment Act, 1976 a new term "unity and integriety of the nation" was substituted for the term “unity of the nation” and this way the term ‘integriety’ was added the preamble of the Constitution. In order to make this point more clear we may just refer to the relevants views expressed during the Constituent Assembly debate. During the debate supporters of the UCC saw various religion based personal laws, an barrier to the unity of the country. In this connection Shri K.M. Munshi went on to say : "we are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, the religious practices in the past have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation.? Supporting the stand taken by Shri Munshi, Shri Alladi Krishnaswami Ayyar in his speech also expressed the view that it is wrong to say that communities cannot live in amity if there is to be a UCC. According to him "Article actually aims at amity. It does not destroy amity’.S In course of his speech he added: 2, VILC.A.D. at 547. 3. VIEC.A.D. at 549.102 Our ancients did not think of a unified nation to be welded together into a democractic whole. Therefore is no use clinging ways to the past. We are departing from the past in regard to an important particular, namely, we want the whole of India to be welded and united together as single nation. Are we helping those factors which help the welding together into a single nation, or is this country to be kept up always as a series of competing communities ?* In his concluding speech Dr. Ambedkar indirectly supported the stand taken by Shri Munshi and Shri Ayyar. He refuted the claims of some Muslim speakers that Islamic personal laws had always been treated as immutable. However, he assured the minorities that it was possible that the future parliament might make the UCC an optional code in the initial period. The unifying aspect of, UCC was also emphasised by Rajkumari Amrit Kaur, Hansa Mehta and Minoo Masani in their note of dissent attached to the report of the Sub-committee on the Fundamental Right.5 It would be useful to point out here that our founding fathers were influenced by the policy adopted by the British who, codified and unified most of the criminal and civil laws and founding fathers wanted to extend that process to the field of personal laws also. If we study the role of civil codes in other countries we find that, in France, and Germany the civil codes have played a positive see 4. Ibid. 5. For entir dissent, See, Supra PP. 20-21..103 role in building of national unity. Unifying factor of UCC is more relevant in India in view of its continuing failure to achieve this goal. The history of India tells us that because of lack of unity in the country, it has been subjected to foreign aggression and even forced to experience the two hundred years of British rule. Because of the British policy of "Divide and Rule" we could not challenge the authority of the British and our all freedom struggles saw many ups and downs. Even, we achieved our freedom at the cost of partition of the country. The post independence history of India has been no different in the sense that even today we are struggling to maintain the unity and integriety of the country. Today, in view of growing communalism and fundamentalism in the Indian society, a UCC has become more important than before. Though, unlike the U.S.A. we do not have the double citizenship but the single citizenship has not achieved its goal of a UCC. In view of the continuing need of the unity in the Indian society various experts opinions have also highlighted the unifying aspect of the UCC. In this connection Justice Tulzapurkar has stated: “In the context of fighting the poison of communal- ism, the relevance of a uniform civil code can not be disputed; in fact it will provide a juristic solution to the communal problem by striking at its root cause, ray, it will foster secular forces so essential in achieving social justice and common nationality".® 6. Justice Tulzapurkar, ‘Uniform Civil Code’ AIR (Jour.) 1987 at 17.104 In the famous Shah Bano case Chief Justice V.V. Chandrachud, went on to say that: "A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the state which is charged with the duty of securing a UCC for the citizens of the country and unquestionably it has the legislative competence to do So.7 ‘As we know that the case in which the problem of the UCC has been highlighted is the Sarla Mudgal case. In this case a division bench of the Supreme Court also highlighted the problem of national unity. Delivering the main judgment Justice Kuldip Singh stated: “The State shall endeavour to secure for the citizens a UCC throughout the territory of India is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law - a decisive step towards national consolidation”.® In his concurring judgment Justice R.M. Sahai said: "Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacredotal suffocation of essentially civil 7 Mohd. 8. Ibid at 652.105 and material freedoms, are not autonomy but oppression. Therefore, a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity"? Our discussion on unifying factor of the UCC may be incomplete, if we do not mention the views expressed by various academics and other experts. Here the experts are also divided into opposite camps. Those experts who do not recognise the UCC as the unifying factor have cautioned that UCC would not necessarily help to achieve unity in India. In this connection Ms. Tyabji has argue’ It is naive to imagine that there is any one system of law which is pre-eminently national and right for all and also naive to imagine that such a code (common civil code) would cut down the number of communal riots or lead to integration; it will serve no purpose except to divide us.1° Expressing similar opinion Shri K.B. Aggarwal has said: A uniform civil code as distinct from a modernised personal law necessary but by no means a sufficient condition for integration into a single modern nation ...there has therefore to be certain minimum degree homogeneity among the citizens as regards their rights, obligations and outlook, no matter what religion they follow and what language they speak.!! 9. Sarla Mudgal V. Union of India, (1995) 35 CC, 635, 639. 10. Kamila ‘Tyabji quoted in Tahir Mahmood, Indian Civil or Islamic Law, 1976, P29, 11. KB. Aggarwal "Advisability of legislating a uniform Indian marriage code" in Mohammad Imam, edi, Minorities and the Law, 1972, p. 440.106 Disputing the unifying aspect of the UCC Prof. Rajkumari Agrawala went one step ahead and asked: "It may suffice to remind and point out that uniform laws for crimes, contracts, torts, constitutional rights etc. exist in the country. They have been in existence now for over hundred years. If they have failed to inculcate the concept of national unity what prompts us to believe that uniform family laws alone will do the trick".1? Prof, Paras Diwan who is regarded as one of the distinguished commentator on personal laws also see no connection between unity of the nation and the UCC. He feels that: "(T]he uniform civil code has nothing to do with indianisation or national integration or interfering with the religion of one community or the other. It is simply a question of equal facility of laws to all sections of our people.....(A)II people of India in all matters except ..... the matter coming under protective discrimination should be governed by one set of laws".}> 12. Rajkumari Agrawala, "Uniform Civil Code-A formula not a solution” quoted by Tahir Mahmood, in T. Mahmood edi, Family Law and Social Change, 1975, p. 110. 13. Paras Diwan, "The Uniform Civil Code : A projection of equality" in Mohammad Imam, edi., Minorities and the Law, 1972, p. 420.107 On the other hand there are academics who hold the view that there are necessary connection between unity of the nation and the UCC. Here we may present few leading voices. In her famous work Towards Uniform Civil Code (1989), Dr. Dhagamwar inclined to agree with those founding fathers who saw the UCC as a means to achieve national unity. She reminded to those, who do not think of the UCC as instrument of national integration, of the criminal justice system of India as it existed before the British and said that after a great efforts India adopted a uniform and secular criminal justice system.1* Countering the stand taken by academics like Agrawala, Dr. Dhagamwar, however, has rightly asserted: "No one believes that the UCC alone will do the trick. Nevertheless, Prof. Agrawala should try to visualise living in a word in which there were separate criminal laws, and then answer her own question as to whether a uniform law brings about unity in public life’.15 14, Dr. Dhagamwar states : "Before the East India Company handed over India to Queen Victoria, British magistrates who asked the Kazi and the Pandi for the interpretation of their law and of evidence had already begun to create a legal fiction supposing the witness was not a women (or a kafir) how would you evaluate the evidence before you, they would ask. Similar questions would be asked to the Pandits to do away with unequal pubishments based on the caste of the offenders and the victim. In 1860 the Indian Penal Code started by laying down the same punishment for all offenders. The Indian Evidence Act, 1872, and the Criminal Procedure Code, 1898, completed the process and not without much heartburn and resentment amongst the faithful, including those English men who had genuine love for India and wanted the country's culture to be respected. Fortunately they lost and we got a system of uniform criminal code”. V. Dhagamwar, Towards the Uniform Civil Code, 1989, P. 54. 15. Ibid at 45.108 We may sum-up this discussion by saying that unity and integriety of the society or nation has been primary consideration with emergence of the idea of the nation-State. Because of the historical reasons and in order to build a strong nation, our founding fathers incorporated several unique features in the Indian Constitution and Article 44 is one of them. However, the academics are divided about the unifying potential of the UCC. In the light of the arguments advanced by founding fathers, academics, and the courts in India; it is submitted, that though the UCC alone is not a guarantee of the unity and integriety of the Indian society but it may play a vital role to achieve it. When India is facing the problems of communalism, fundamentalism, terrorism and separatism, it is natural to look towards every possible factor which may consolidate the society. There is no doubt that if the policy makers in India succeed to enact a UCC it will, to some extent, serve the cause of unity and integriety of the Indian nation. B. THE UNIFORM CIVIL CODE AS A MEANS TO ACHIEVE EQUALITY AND GENDER JUSTICE In all the contemporary societies the legal system attempts to achieve the goals of equality and gender justice. These twin principles have become so important that these are now standards to judge the progressiveness of a society. So for Indian Constitution is concerned, the concept of equality along with gender justice have been given due recognition under the chapters Fundamental Rights and Directive Principles of State Policy. Apart from direct provisions the concept of UCC also aims to achieve these principles. Jurisprundentially, the concept of equality109 includes the principle of gender justice as well. In this work the expression equality has been used in this wider sense. Under the present head we will try to discuss all aspects of equality factor of the UCC. Here we will try to examine the position of equality under the personal laws. In the present discussion we will refer the Constituent Assembly debate, the judicial opinions and the conflicting experts opinions. Here the concept of equality has two aspects: uniformity between communities (Hindu, Muslims, Sikhs, Christians, Scheduled Tribes etc., all being governed by one law) as well as uniformity within the communities (between men and women). In our earliar discussion we have seen that the women's movement have been demanding a UCC in India from the pre-independence days.® It was felt by the womens movements that improvement in the women's positions can only be achieved by enacting equal laws. The women's struggle for equality as well as their demand for a UCC has been a secular movement. The cardinal principle of this movement is, that barrier to achieve equality erected in the name of religion, caste, custom or tradition have to be dismantled. UNEQUAL OR DISCRIMINATORY NATURE OF PERSONAL LAW IN INDIA In India various womens movements along with progressive and secular leaders have been advocating for the UCC mainly because 16. See the discussion under the head ‘origin of the UCC in India’ at Supra, P19.110 the Indian legal system recognises the existence of separate personal laws. These leaders have been opposing the said personal laws being discriminatory in nature. It has been argued that in the secular country like India, we cannot have separate personal laws for different religious groups. There should be a uniform law applicable to all citizens because separate discriminatary laws are unconstitutional. They further argue that when all citizens are governed not only by a uniform criminal code but also by uniform civil laws in all areas other than that of personal laws, then why not Parliament does not remove this discrimination too. ‘The secular leaders also argue that if present personal laws are to be followed then there will not only be sexual inequality between men and women of one community but also inequality between women of one religious community and those belonging to another religious community. In this connection justice A.M. Bhattacharjee!7 has listed the following areas of discrimination of different personal laws: 1, The Muslims are polygamous and the Hindus, Christians and Parsis are monogamous. 2. The Muslims are allowed extra judicial divorce, but the Hindus, Christians and Parsis can effect divorce only through a court of law. 17, A.M, Bhattacharjee, Muslim Law and the constitution, 1985, P 171-3.qi. A wife married under the Muslim law can be divorced by her husband on a whim, but a wife married under the Hindu, Christian or the Parsi law can be divorced by the husband only on certain grounds specified in those laws. Under the Mulism law a husband's apostasy from Islam results in automatic dissolution of a muslim marriage, though a wife's apostasy does not. Under the Hindu law, apostasy from Hinduism by either of the spouses does not affect a Hindu marriage, though it confers on the non-apostate spouse a right to sue for. divorce. Under the Parsi law also, a spouse's ceasing to be a Parsi zoroastrian would only entitle his or her partner to sue for dissolution, but would not otherwise affect a Parsi marriage. Under the Christian law, a change ion by one or the other spouse has no effect on a christian marriage except where the apostate husband has married, again, in which case the wife would be entitled to sue for divorce. Under the Muslim law, a divorced wife is not entitled to any maintenance except during the period of 'Iddat’. But the other personal laws allow a divorce post-divorce alimony in perpetuity. Under the Muslim law, a daughter inherits half the share of son; but under the Hindu law, a daughter shares equally with a son (it may be noted however, that under the Indian Succession Act governing the Parsis and also others who112 are neither Hindus, Muslims, Buddhists, Sikhs nor Jains, the position is the same as under the Muslim law). 7. Under the Muslim law, a person cannot dispose of more than onethird of his property by will; there is no such restriction in the other personal laws. 8. The Musim law confers on a person the right to pre-empt any property in respect of which he is a co-sharer, or a participator in appendages or immunities or an adjoining owner. The other personal laws do not confer any such right. In view of the for-going mentioned differences it has been argued that the discriminatory personal laws are against the spirit of the Constitution and therefore, must be removed by enacting a UCC. Constituent Assembly and the Equality Factor of the UCC If we examine the constituent Assembly debate on UCC. from the point of equality or gender justic, we find that there was less discussion about the importance of UCC for women. The most of the members who spoke in favour of the UCC highlighted the unifying factor rather than equality factor. In view of this fact Dr. Parashar has pointed out that emphasis on the unifying potential of the UCC was very different from the reason why women supported the idea in the pre-independence period.1® In the end of her analysis she remarks. "the final shape taken by the article on a UCC indicates the greater importance attached by the (mainly male) constitution makers to achieving national unity than to ensuring legal equality for woman.1° 18. Vasudha Dhagamwas, Towards the Uniform Civil Code, 1989, P. 57, 19. Ibid at 62.113 One another commentator Dr, Vasudha Dahagmwar has also exposed such few issues and reached to the conclusion that many personal laws are iniquitious and inegalitarian in their perception of other religions.?° In her book on UCC she has examined in detail the ill effects of conversion and inter-religious marriage. In the end of her analysis, she moved to observe : "In secular country the State can not recognise a law which refuses to recognise inter-religious marriages. We may not countenance a law that more or less compells conversion by refusing to recognise inter-religious marriage. The State also cannot, in effect, deny freedom of religion by forbidding one to convert by holding out the threat of instant dissolution of marriage. The law cannot in one instance upohold the concept of the guilty party and in another allow that very party to benefit from the wrong he/she has done. ‘The law cannot allow a conflict of (personal) laws to create confusion.?? It is true'that most of the founding fathers who supported the idea of the UCC highlighted the unifying and other factors of the UCC rather than factor of gender justic and equality But Shri K.M.Munshi was an exception who equally highligthed gender justice factor of the UCC. Countering the arguments of the Muslim members that the personal laws being part of religion should not be disturbed, Shri Munshi argued that if the personal 20. Archna Parasher, Women and Family Law Reform in India, 1992, P.-236, 21, Ibid,114 law of inheritance, succession etc. is really a part of religion "you can never give, for instance, equality of women" Shri Munshi argued: "But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. look at Hindu law, you get any amount of discrimination against women, and if that is part of Hindu religion or Hindu religious practice,you can pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India.2? It is clear therefore that the founding father were of the view that U.C.C. was in the direction of achieving the separation of relegion from the personal law specially the role of inheritance. We may sum up the debates in the following works : 1. That India had already achieved a uniformity of law over a vast area; 2. That though there was diversity in personal law, there was nothing sacrosanct about them; 3, The secular activities, such as inheritance, covered by personal laws should be separated from religion; 4, That a uniform law applicable to all would promote national unity and 22. VILC.A.D. at P. 548,11s 5. That no legislature would forcibly amend among personal law in future if people were opposed to it. We must remember that when Saradar Patel conculded his last speech and observed that we have laid down the foundations of a true secular democratic state where everybody has equal chance, everybody cheered him infact the Muslims members them selves repudited the change that minorities were being by passed infact Md. Ismail Khan clearly told the house at that time that "We desire our stat to be non-communal and secular. Here is an opportunity and let us grasp it let us not stand in the way of the emergence of a really secular and non-communal state." (C) THE UNIFORM CIVIL CODE AS A MEANS TO ACHIEVE SECULARISM ‘Though the term secularism was not used in the original constitution but the concept of secularism was one of the important principle on which several constitutional provisions were built. That is why even before the year 1976, When Indian was formally announced a secular State by the Constitution (forty-second) Amendment Act, the Indian State was regarded as a secular state.** Though the concept of secularism does not have a universally agreed definition or form but, among the varying 23. VII C.A.D. 540-2. A. Now the ideal of secularism has been declared as one of the basic structure" of the constitution by the Supreme Court in the landmark judgment of S.R. Bommai V. Union of India A.LR. 1993 S.C. 1918 By this pronouncement concept of secularism has firmly established its feed on Indian soil116 conceptions of secularism, the common element is absence of state-sponsored or state-favoured religion. This element of secularism was always present in the background, when the provisions of the Indian constitution were finally shaped. It is amply supported by the provisions of the constitution which have remained unchanged since their incorporation.?> So for the nature of indian secularism in concerned it is neither anti religion-nor does it create a wall of separation between the State and religion. It is also not based on total neutrality towards religion. It is based on equal respect for all religion. It embodies the ancient Indian concept of Sarva-Dharma Sambhava. Under the Indian Constitution there las been controversy relating to the real concept or nature of secularism as well as its uses. One controversial aspect of secularism is related to the conflict between religious freedom and State power to regulate such freedoms. It may be pointed out that when the provisions of the freedom of religion were discussed in the Constituent Assembly, the debate focused on whether a secular State should interfere at all with religion or its practice. Some of the women as well as other members feared lat the wide scope of freedom of religion may endanger social reform welfare legislations. The nature and scope of religious freedom led the debate on the exact meaning of a 25, It this respect most prominent are Article 25 to 28 which constitute the "Right to Freedom of Religion". They are supplemented by many provisions as Article 15(1) and (2), 16(2) and 325, which prohibit discrimination in different matters on the basis of the religion and Article 30 which grants some special rights to religious minority.117 secular State. Although draft Article 19 (present Art.25) mentioned that the State could regulate any economic, financial, political or other secular activity associated with the practice of religion, there was no discussion about the criteria to distinguish between religious and seculars activities. The Constituent Assembly debate suggests that the framers of the constitution assumed that the State had absolute power in matters concerning social welfare and reform, However, it was not made clear whether these matters covered only secular, economic, political and financial, activity or every aspect of religion. This conflict between religious freedom and secularism was also discussed when the clause on the UCC was debated in the Constituent Assembly. We have already seen that how Muslim members raised bjections to the provision of a UCC and argued that the personal laws based on religion should be exempted from the preview of any future UCC. The followers of the UCC replied that it is wrong to assume that the personal laws of inheritance, succession, adoptions ete, were part religion. In this connection it was pointed out that if the arguments of the Muslim members are accepted, then the women can never be given equality or gender justice because personal laws are discriminatory in nature. In view of the apprehensions expressed by the minorities, especially the Muslims, the provision relating to the UCC could not be put in the fundamental Right chapter and it was reduced as a Directive Principle. Moreover, the conflict between religion and secularism was not adequately resolved and the exact power of the State to reform religious personal law was left undefined. ‘The consequence of this was that it left scope for State to assume118 If we analyse the relationship between the goal of secularism and UCC as its means, we find close relationship between these two. We have already exposed the discriminatory, unequal and sexually biased nature of personal laws. The existence and continuance of such laws are against the very essence of a secular state like us. The secular India, can not recognize a law which does not legitimize inter-religions marriages. The present personal laws emphasize the religious factors rather than any other aspect of citizens, and it is against the ideal of secularism. Naturally, ina secular State like India all the relationships, among the citizens should governed by the principle of equality, justice, and fraternity, rather than orthodox religious laws and practices. If we examine the contribution of secularism in India, We find that its present form-equal respect for all religions, has just failed to achieve the constitutional goal of equality, justice and above all fraternity. It has failed to reduce strain and religious animosity between communities, particularly two major religious communities, The Hindus and the Muslims. In secular India the religion has become decisive factor rather than uniting factor. Though state has come forward to regulate secular practices associated, with the Hindu religion /personal laws but it has failed to secularise others’ religious personal laws. Moreover, because of the political considerations the Indian rulers have some times acted against the secularism by reverting judicial efforts to secularise the personal laws.?6 26. See Mohd. Ahmed Khan V. Shah Bano Begum A.LR. 1985 S.C. 945 and consequent enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986, For detail analysis see the infra chapter dealing the judicial response.119 ‘The history of free India tells us that rulers of the secular State often adopted a soft approach towards reforming the personal laws of the minorities.27 Such approach of the rulers often influenced by political reasons, has been termed as "appeasement policy." This policy strengthened the extremists of the majority Hindu Community. Some commentators have pointed out that the recent growth of Ayodhya dispute is the result of the appeasement policy adopted in general and particularly in Shah Bano controversy. All these developments resulted in the religion based politics which has weakened the secularism in India. The meanace based politics has become so accute that the need was felt to secularise the politics. In order to separate the polities from religion even two Bills** were proposed in the Parliament but these could not become 27. A part from Fundamental Right to freedom of religion the Indian constitution provides certain Cultural and Educational Fundamental Right to the minorities under article 29 and 30. In order to get the facilities and benefits provided under these articles even a Hindu organisation (Ram Krishna Mission) claimed minority Status on the ground that Ram Krishnaites were not Hindus. Though the Calcutta High Court, upheld their contentions but the Supreme Court rejected the claim this trend shows that how a Hindu organisation wanted to have a minority status to avail the constitutional protection and also the patronage of the rulers. 28. These are the Constitution (Eightieth Amendment) Bill, 1993 and the Representation of People. (Amendment) Bill 1993. The former Bill sought to introduce Article 28-A which defines the expression, ‘secular’. It reads the State shall have equal respect for all religions. Article 28-A also gives exclusive power to Parliament to authorise banning of any association of people which promotes disharmony or feelings of enmity, hatred or ill will between different classes of citizens an ground of religion. This Bill also adds two disqualifications in Article 102 and 192 respectively for membership of Parliament and State legislatures if the religion is misused for election purposes. The second Bill mandates that the Election Commition shall not register apolitical party if it bears a religious name and the qegisteration ‘may be cancelled on a complaint if the rules of such parties do not contain specific provision that it bears true faith and allegiance to secularism.120 the law because of the lack of agreement among the major political parties. It happened because most of the political parties failed in their commitment towards the secularism. In the end of this discussion we may conclude by saying that though, after unfortunate partition of India, the founding fathers wanted to have a secular State, but, they failed to adopt a UCC at that time and they put it as a future goal. Unfortunately the successive Governments also failed to secularise the personal laws. Because of the political considerations the religion rather than secular ethos has become the prime consideration of the Indian Tulers. The adoption of a UCC has now become more difficult after fifty years of the Independence. Therefore, in order to achieve the constitutional goals including secularism every effort should be made to enact a UCC by educating the masses. It has become the policy of the party in power in our country that they will not venture to oppose the minorities mores and will never work in the direction of UCC. It is the duty of the government of the day to build favourable public opinion in this regard through dialogues and debates but they have failed performing their duties. Prof. Julius stone has rightly said that "A country is what people make it and not what it constitution prescribes. The constitution of a country can be worked as well as wrecked by its people. Our constitution has not failed us. What is necessary is that we should masure up to its espectations (Social dimentions of law and Justice; 1966 p. 314)121 {D) THE UNIFORM CIVIL CODE AS A MEANS TO ACHIEVE CLARITY, SIMPLICITY ETC. It is a matter of common experience that a legal system can not chieve the goal of justice without simplicity and clarity of its laws. The history of codification of laws tells us that one of the important reason behind this idea has been to achieve the goal of clarity and simplicity in the laws, So for position of Indian legal system is concerned, the process of codification was, started during the British regime in certain areas such as Criminal law, Commercial law etc., But, because of the British policy of non-interferance in, religious matters, this goal of codification could not be achieved in the area of Family laws. We have seen in our earlier discussion that various personal laws provide conflicting situations in case of inter-religious marriage, and conversion etc. This conflicting situations often bring confusion and ambiguity in civil relationship of the citizens. In view of the presence of conflicting personal laws it may be argued that if the citizens’ right in personal relationships are to depend entirely on their religion, sex, caste etc, there can hardly be any scope of clarity and simplicity. Some times it is said that solution to unequal and conflicting personal laws is the Special Marriage Act. But so long as it remains one of the many laws in India, it is not likely to bring the clarity and simplicity. ‘The facility of Special Marriage Act may be availed only by few educated and informed citizens. The conflicting and ambiguous personal laws have brought many ills in the Indian society and only a UCC may provide effecting cure. Advocating a UCC to achieve the goal of clarity and simplicity in personal laws Dr. Dhagmwar has rightly suggested:122 "It would be better to make a law declaring that no Marriage would be void because of technical reasons such as different religions of the parties or rituals followed, no marriages would be dissolved because of conversion, unless the parties so desired it, and that the intention of the parties, as demonstrated by their conduct would be sufficient to constitute a valid relationship."2° Apart from the clarity and uniformity etc. a UCC makes further development of law much easier as the legislature's job is made simpler; because it has to deal with the provisions of a code rather than with bundle of case law. ‘We may conclude our this discussion by saying that a UCC in India may bring uniformity, Completeness and clarity in personal laws which is the need of the hour. The people of India have suffered a lot because of the ambiguous and conflicting nature of personal laws and they badly need a simple, clear and complete civil code. EQUALITY FACTOR OF THE UCC : JUDICIAL APPROACH We have seen that the various personal laws are discriminatory in nature and thus have been attacked in the courts being violative of equal protection clause of the Indian Constitution. In our earliar discussion we have also seen that under the Indian Constitution the personal laws have been put beyond the reach of Fundamental Right. This has been done by saying ee 29. V, Dhagamwas Towards Uniform Civil Code, 1989 at P.-63.123 that personal laws are not law under Art.13 and therefore, need not conform to equality clause. In this connection we have already pointed out that if the personal laws were tested by the courts upon the touch-stone of equal protection clause, a large number of them would have been found unuqual, unjust, arbitrary and thus unconstitutional. It is true that because of the practical problems the personal laws have been put beyond the equal protection clause by the Indian courts, but on the same time the Indian courts continously highlighted the apparent conflict between personal laws and equal protection clause. In this connection the courts in India, at times, have emphasised the need to have a UCC so that personal laws may be put at par to the equal protection clause and with other constitutional norms. In the Shah Bano case the Supreme Court observed that the governments failure to enact a UCC was creating hardship for women and thus "inevitably the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is palpable’.2° Again in Sarla Mudgal case*! a division bench of the Supreme Court accepted that due to the absence of a UCC, the women have not found right equal to the men and this is direct violation of the provision of Art. 15 of the Constitution.°? In this 30. Mohammad Ahmad Khan V. Shah Bano Begum, A.LR. 1985, S.C. 945, 954. 31. Sarla Mudgal V. Union of India, A.LR. 1965 S.C. 1540. 32, Clause (1) of Art. 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.124 case a second marriage of a Hindu male after conversion to Islam declared void. The court found such marriage against the rules of natural justice. In its judgement the court took the favour of equality, justice and good conscience, and also highlighted the need to have a UCC in India. EQUALITY FACTOR OF UCC AND THE ACADEMICS While debating on the UCC the academies who favoured it have enumerated several purposes. But in doing so they have emphasised on different purposes according to their own preferences. It is important to note that if there is any single purpose on which all such academics are unanimous, it is the purpose of equality or gender justice. The equality or gender justice factor of the UCC has been equally highlighted by not only feminist legal thinkers but also by other commentators aswell. In our earliar discussion on unifying factor of the UCC we have noted the dessenting views of commentators in which they desputed the unifying potential of the UCC. But it is important to note that there has been no dissenting views of the equality potential of the UCC. It is also important to note that even those who have opposed the idea of the UCC, have at least accepted the potential of the UCC to achieve equality. In this connection the opponents of the UCC such as advocates of the religious freedom often try to demonstrate that their respective religion already provides equal protection to the women. Such advocates even argue that the women are more protected under their religious justice system. In the present study it is not possible to analyse the claims whether different religions provide gender justice or not, but, in the present discussion we have already enlisted glaring examples of125 discriminatory religious personal laws. In view of the discriminatory nature of the religious personal laws, the need of a UCC has been highlighted by the academics. So for views of academics, who favour the UCC, are concerned they often highlight the equality or gender justice factor. In this connection we have already mentioned the opinion of Prof Paras Diwan who while rejecting the unifyine factor sees ditrect relationship between gender justic and the UCC.°° Another distinguished academician Prof Lotika Sarkar has also accepted the UCC as a means to achieve gender justice in India. She feels that: "As long as oppressive personal law continue, there can not be any legal equality to women. Only the acceptance of a secular UCC will ensure this.S* Another feminist writer Dr. Archana Parashar has strongly favoured the UCC in India to achieve the equality or gender justice. In her work Women and Family Law Reform in India (1992) she alleges that the male members of the Constituent Assembly attached greater importance to unifying factor’ than the equality factor of the UCC. 33, The other academics who have emphasised the equality factor of the UCC are Prof, Sivaramayya and Prof. Desai. @ _B. Sivaramayya, ‘Equality of sexes as a Human and Constitutional Right and the Muslim Law’ in T. Mahmood, edi, Islamic Law in Modern India, 1972, pp. 69-79. (ii) C.C. Desai, ‘Need for a Uniform Civil Code for India; Journal of Constitutional and Parliamentary Studies, Vol. 3,1969, pp. 90-92. 34. See ‘Foreword! of the book. ‘Women and Family Law Reform’ in India by A. Prashar, 1992, at 11.126 She added that because of the lack of seriousness about the gender justice, on part of male founding fathers, the provision relating the uniform civil code was not put in Fundamental Right chapter. According to her, if this clause had been made justiciable fundamental right one major device for discrimination against women would have removed.*5 In her analysis Dr. Parashar says: In addition to the reason conventionally put forward in favour of codification in India the greatest advantage to be gained for the UCC is that women can be ensured legal equality in personal matters.5¢ Another feminist commentator Dr. Vasudha Dahgmwar in her famous work. Towards the Uniform Civil Code (1989) has equally highlighted both the unifying as well as the equality factors of the UCC. We have already mentioned her views on unifying factor. Dr Dhagamwar also feels that the UCC in India will serve the cause of gender justice. She says: "Justice without equality or fraternety is meaningless. The personal laws of this country did try to separate the two by creating distinct systems of justic for seprate groups on the basis of their race, religion,cast, creed and sex".57 35. A. Parashar, Women And Family Law Reform in India, 1992, at p. 236. 36. — Thid at 243. 37. Vasudha Dhagamwas, Towards the Uniform Civil Code, 1989, P.-55.127 she added: "Inequality between men and women in matters of marriage and divorce and succession exists in many personal laws which gives a bigger share to the man, Inequality is further created between people of defferent communities. It is also created between the state and the individual living within it’.3® We may, conclude, here by saying that concept of equality or gender justice has became a standard to judge the progressiveness of a society. Though Indian Constitution provides equal protection clause as a fundamental right but in view of practical considerations the Indian courts, at times, have put the various religious personal laws beyond the reach of equal protection clause, Because of the ill effects of the religious personal laws various commentators have suggested to bring a UCC to achieve equality gender justice in India. Some of the critics have pointed out that provision of UCC could not become the Fundamental Right because male founding fathers failed to appreciate the cause of gender justice. The Indian judiciary, at times, has expresssed its’ opinion in favours of equality factor of the UCC and the Shah Bano and Sarla Mudgal cases are important example. So for the world of academics are concerned, they have unanimously favoured the equality factor of the UCC. In the light of the present discussion we may submit that the existence of unequal and gender biased religions personal laws are against the secularism, modernism and above all the Constitutional norms in India. The constitutional norms if read with Article 44 thus 38. Ibid at 56.128 demand the enactment of a UCC in India. This problem should be viewed in the context of Male-dominated society. The Muslim womens in general are in favour of UCC but as Anuradha Rajan points out, the gender in- equality has become the part of modern India, The learned author thus writes new-age TV commercials are full of images of corporate men in suave suits cradling babies and puppies, washing clothes (in washing machines, of course) and cooking a family lunch on Sundays (the heat-and-serve variety). Why it is that involving men in what is traditionally seen as women's a work has come up in such a big way, with convenient modern appliances? What would happen if we were to return to the days of the kerosene stove-would men be as forthcoming? And then there are commercials that show women driving Tata Sumos and making major investment decisions for the family. Has the age-old gender divide really begun to melt palpably are we witnessing yet another fad? ‘There are a number of gaping holes in this social liberation story. Hence, we find a growing number of women entering the Indian labour force (the female work participation rate increased from 19.7% in 1981 to 25.7% in 2001) but under more exploitative conditions. We see more women in corporate boardrooms, government ministries and panchayats (village councils), but we also see rising cases of violence against women. In such a scenario, it is hard to arrive at conclusions about a change in gender equations. Apparently, men are going through @ monumental struggle to reconcile traditional notions of what it is to be a "man" within a fast-changing social and economic fabric, where women are perforce becoming co-earners, turning more mobile and developing a broader worldview. Any process129 of change typically elicits two responses - adaptation or extinction, flight or fight. The metrosexual man, the baby-cuddling corporate honcho, is a form of “male adaptation" to the inevitable evolution in women's roles. However, the growing incidence of violence against women and girls is another manifestation of men's inability to cope with and negotiate changing gender roles, and in many cases a way of actively resisting it. How can we engage with men in changing women’s status fundamentally. In large parts of South Asia, feminist discourse charted the journey of power and victimisation through a long process of mobilisation, conscientisation and analysis. Women, have articulated their journeys through a language that is their own, evolving vocabularies and concepts that are grounded in their lives and realities. For women, the personal has been truly political. Men, on the other hand, have been bystanders for a long part of this journey, seldom engaging deeply with issues of gender-based power and powerlessness. Therefore, unlike for men, strategies and methodologies of working with women have evolved organically out ofa shared ‘herstory’ of powerlessness. It would seem that social change among men and women has followed two different trajectories of evolution-women have taken cognisance of their relative powerlessness, mobilised around collective experiences of violations, and evolved sound strategies to deal with their situation. Men, on the other hand, have not felt the need, nor have they had the opportunity, to undertake such a journey of reflection, analysis and action.130 Where they have, it has largely been on broader societal and community-level issues. Women have been better able to critique, and adapt to, situations of power and powerlessness. If we were to look at issues such as violence against women, involving men assumes a complex hue. The thought of men as partners in addressing violence against women seems daunting and rife with challenges in a society where one out of every four middle-class educate men resorts to violence against their wives; 56% of educated men admit to forcing their unwilling wives to have sex with them (according to a 2002 study by the Indian Council for Research on Women); and half of the 109 judges covered by a study (by Sakshi in 1996) say that victims of domestic violence are partly to blame for their situation. The notion of partnership implies an even playing field, a joint venture based on equal access and opportunities, which we know does not obtain as far as men and a women in our society are concerned. The nascent spaces women have managed to carve out in various sectors need to be nurtured and developed. Men need to go through processes of introspection on their notions of power and powerlessness, and their levels of comfort and discomfort over sharing power with women, before the concept of "men as partner" can truly be realised. The concept of partnership is, after all, based on dialogue and debate. The struggles of women in our country hold out a major lesson-addressing violence against women by changing gender relations cannot happen through conciliatory or transformative approaches alone. It entails making structural changes in societal and legal systems, challenging community norms on violence and131 holding perpetrators accountable. This is a long haul, and could involve confrontationist strategies. The concept of "partnership" seems to pose challenges, if not limitations. At a fundamental level, working with men and women to reduce violence against’ ; women implies redefining the notion of power, so that violence as a way of maintaining control loses its inherent value.°? 39. The Times of India, New Delhi, Saturday, December 25, 2004 P. 14,