OCTOBER 24, 2015

By Naresh Minocha, Our Consulting Editor

THE Supreme Court's latest reminder to the Union Government to disclose its stance on enacting uniform civil code (UCC) has once again been seized by short-sighted activists to stir public misgivings. They are projecting UCC concept as covert Sangh Parivar's agenda to impose Hindu Civil Code (HCC) on other citizens of other faiths.

Facts are being trampled upon by activists who want the country to remain divided in numerous castes, sub-castes and religions. They rationalize archaic customs as an integral part of respective religions. They overlook the fact that this conflicts with the Indian Constitution's provision for 'Right to Equality' for every citizen including women.

Their objective is clear: stonewall any discussion on UCC. It is no wonder that late Rajiv Gandhi, as Prime Minister, had to backtrack on putting in public domain the very idea of voluntary UCC in 1987 after Shah Bano case.

Anti UCC-brigade even views with suspicion the verdicts and orders issued by the Supreme Court since 1995 for launch of UCC, which is so crucial for forging national unity and for giving justice to women.

The situation today is more pathetic than what it was after the Independence when Constituent Assembly (CA) discussed whether UCC should be mentioned at all in the Indian Constitution. CA ultimately opted for the soft course: It put UCC in the Directive Principles of the Constitution (DPC), which is basically a deep freezer packed with good ideas to be pursued by the State at a pace that would even make ant laugh heartily.

CA did not visualize that vote banks-driven successive Governments would lack the courage even to issue a discussion paper on UIC and thus compromise national unity forever!

That is why National Commission to Review the Working of the Constitution (NCRWC) recommended rewording of the very title of Directive Principles. In its report submitted its report in 2002, NCRWC suggested: "the heading of Part IV of the Constitution should be amended to read as 'Directive Principles of State Policy and Action'."

The Government has been largely pursuing ostrich-like approach on UCC since 26 January 1950. This is in spite of repeated advice from Apex Court and other institutional quarters. Time is ripe for enlightened Indians to shatter the basic misconception that UCC is nothing but a covert attempt to impose HCC on other religions.

And the best way to do this would be to recollect how founding fathers of Indian Republic viewed religion, UCC, humanity and equality. Their efforts and vision for India should not be sabotaged by misguided activists, who can inflame passions and engineer violence. Start with noted lawyer of his era, M. Ananthasayanam Ayyangar.

Articulating his vision for India at a meeting of CA on 27th August 1947, Mr. Ayyangar said: "There is no doubt that difference between the Hindus and Muslims do exist. One prays towards the East and the other toward the West. But there is also a common bond. Mohammad started his religion to bring the various warring elements together under a common banner. Religion in ancient days was an integrating power. There must be a common platform on which all could stand."

He continued: "I look forward to that day when humanity will be one, when all castes and creeds will disappear, when children are asked as to what religion they belonged, they may-say, 'I do not belong to any religion but I am an Indian and do take pride in being one'."

He added: "Though one electric bulb may be white and the other red, the current that is running through is one and the same. A philosopher is necessary to come and say amidst all these happenings, 'Let us bring millennium on earth'."

And the philosophical quest for Indians to march forward was articulated well by Saiyid Mohammad Saadulla, Assam's first Chief Minister during the Raj era, while supporting the resolution on National Flag at CA on 22nd July 1947.

Commenting on features of the Flag, Mr. Saadulla observed: "The Dharma chakra of Asoka reminds us of the condition of the people at the time of that great Buddhist Emperor of India. He ruled not for his personal aggrandisement but for the contentment, peace and prosperity of the people under his charge. This emblem now embodied in our National Flag ought to remind every administrator and every citizen of the federation of India that we should forget the past and look to the future …."

Listen what late K.M. Munshi stated on 23rd November 1948 at CA while countering demand for banishing UCC from the directive principles of draft Constitution.

Mr. Munishi, reputed lawyer who founded Bharatiya Vidya Bhavan, said: "Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country."

Munshi continued: "We think we have got national unity. But there are many factors--and important factors--which still offer serious dangers to our national consolidation, and it is very necessary that the whole of our life, so far as it is restricted to secular spheres, must be unified in such a way that as early as possible, we may be able to say, 'Well, we are not merely a nation because we say so, but also in effect, by the way we live, by our personal law, we are a strong and consolidated nation'. From that point of view alone, I submit, the opposition is not, if I may say so, very well advised. I hope our friends will not feel that this is an attempt to exercise tyranny over a minority; it is much more tyrannous to the majority.''

He added: "This attitude of mind perpetuated under the British rule, that personal law is part of religion, has been fostered by the British and by British courts. We must, therefore, outgrow it…. Allauddin Khilji made several changes which offended against the Shariat, though he was the first ruler to establish Muslim Sultanate here. The Kazi of Delhi objected to some of his reforms, and his reply was-'I am an ignorant man and I am ruling this country in its best interests. I am sure, looking at my ignorance and my good intentions, the Almighty will forgive me, when he finds that I have not acted according to the Shariat." If Allauddin could not, much less can a modern government accept the proposition that religious rights cover personal law or several other matters which we have been unfortunately trained to consider as part of our religion'."

Later, Dr. B. R. Ambedkar, Chairman of Constitution Drafting Committee, turned down demand for deleting UCC provision from the draft Constitution.

He stated: "I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country."

He continued: "The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country."

He cited two instances where both Muslims and Hindus followed common marriage and inheritance-related laws in two provinces in the undivided India Dispelling apprehensions on UCC harboured by a few CA members, Dr. Ambedkar added: "they have read rather too much into article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. 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 provision by way of making 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 the application of the Code may be purely voluntary."

This is precisely how late Rajiv Gandhi intended to proceed on an issue which his mother Indira Gandhi and grandfather J.L. Nehru ducked during their respective prime ministership.

Answering a question on UCC in Rajya Sabha in March 1987, The Minister of State for Law H. R. Bhardwaj disclosed: "The Prime Minister, Shri Rajiv Gandhi, indicated willingness to introduce legislation for a voluntary uniform civil code very soon. The relevant Bill was ready. It would mean that those covered by Muslim Personal Law can opt for the code on a voluntary basis."

Mr. Gandhi allowed this proposal to fizzle out due to political compulsions.

The Supreme Court emphatically put back UCC on the national agenda in May 1995 through its verdict in Sarla Mudgal vs Union of India case.

As put by the Verdict, "The Successive Governments till-date have been wholly re-miss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and 'endeavour to secure for the citizens a uniform civil code throughout the territory of India'."

The Apex Court also directed the Government to file an affidavit in August 1996, indicating the steps taken and efforts made, by it towards securing a UCC.

The Judgment noted: "Article 44 (of the Constitution) is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27."

The Union Government did not shed its inertia on UCC after this verdict. In July 2003, the Supreme Court again jolted the Government out of UCC complacency.

In its verdict in John Vallamattom vs Union of India case, the Court observed: "It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies."

Even after this verdict, both UPA and NDA regimes avoided acting on SC verdicts due to political compulsions.

Now the Court has cornered the Government to clear its stand on UCC at the next hearing on a case where a person has sought waiver of two-year mandatory separation period before a Christian couple can move court for divorce by mutual consent. Couples from other religions are governed by one-year separation norm.

On 13th October 2015, the Court observed that there was "total confusion" due to prevalence of different personal laws for different religions.

This is a golden opportunity for Prime Minister Narendra Modi to salvage his image by proving that he is not an escapist. He should advice Law Ministry to prepare a discussion paper on Indian Secular Civil Code (ISCC). The change in nomenclature from UCC to ISCC is required to dispel misgivings. ISCC should pick the best from each personal law and package them into a draft ISCC Bill.

If he has any doubts, he should clear them by reading what renowned editor and development visionary, late B.G. Verghese, once penned in his column.

Mr. Verghese wrote: "A uniform code has been wrongly posited as an assault on religion and religious identities. What it essentially aims at is secular reform of property relations in respect of which all religious traditions have grossly discriminated against women. UCC is, therefore, foremost a matter of gender justice. But male chauvinism and greed have joined with religious conservatism to forge an unholy alliance to perpetuate a major source of gender discrimination thereby impeding the modernisation of social relations and national integration."

Mr. Modi can also draw inspiration from Justice R.M. Sahai's observations. In the 1995 verdict, he wrote: "There is no Raja Ram Mohan Rai who single handed brought about that atmosphere which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law....The desirability of uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change."