Why India needs a uniform civil code3 min read . Updated: 04 Jul 2016, 01:45 AM IST
Constitutional law should override religious law in a secular republic
The brave fight put up by Muslim women against the practice of triple talaq has once again brought into focus the lack of a uniform civil code in India. The Narendra Modi government has now asked the Law Commission to examine the issue. This is hopefully the first step towards the implementation of something that has been delayed for far too long.
India needs a uniform civil code for two principal reasons.
First, a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices. This was a key issue debated during the writing of the Constitution, with passionate arguments on both sides. The Indian Constitution was eventually stuck with a compromise solution, a directive principle that says: “The state shall endeavour to secure for citizens a uniform civil code throughout the territory of India."
Several members of the Constituent Assembly disagreed vehemently with the compromise. Among them were the trio of Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur. As Kaur argued: “One of the factors that have kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life."
Later, in the first decade after independence, the opposition from Hindu conservatives to the Hindu Code Bill was eventually overcome. Nothing similar was tried when it came to Muslim conservatives. The political leadership of the day mistakenly decided to not take on conservative Muslim opinion just after the trauma of partition.
There is a second reason why a uniform civil code is needed: gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example. It is important to note that B.R. Ambedkar fought hard for the passage of the Hindu Code Bill because he saw it as an opportunity to empower women. The great Muslim social reformer Hamid Dalwai also made the rights of women a central part of his campaign for a uniform civil code.
It is unfortunate that the demand for a uniform civil code has been framed in the context of communal politics. Too many well-meaning people see it as majoritarianism under the garb of social reform. They should understand why even the courts have often said in their judgements that the government should move towards a uniform civil code. The judgement in the Shah Bano case is well known, but the courts have made the same point in several other major judgements.
The move towards a common civil code cannot be a hasty one. There is the obvious political challenge on assuaging the fears of the Muslim community. The government will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives, as has been the wont of previous governments.
One strategic option is to follow the path taken after the fiery debates over the reform of Hindu civil law in the 1950s. Rather than an omnibus approach, the Modi government could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.
The civil law in Goa—derived from the Portuguese Civil Procedure Code of 1939—could be a useful starting point for a national debate. The coastal state continued with its practice of treating all communities alike even after its entry into the Indian Union. The government would also do well to complement the overdue move towards a uniform civil code with a comprehensive review of several other laws in the context of gender justice. That too is important in our times.
The underlying principle should be that constitutional law will override religious law in a secular republic. Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution. Even those who argued in the Constituent Assembly for continuing with different civil codes were not arguing on matters of principle, but of political expediency. They hoped that India would move to a common civil code within a decade or so.
It is now 66 years since the Constitution came into force. It is high time there was a decisive step towards a common civil code. If not now, then when?
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