October 28, 2015

India: Towards a modern [civil] code (A P Shah )

The Indian Express - October 28, 2015

Towards a modern code
A uniform civil code must draw freely from different personal laws and give primacy to gender equity

Written by Ajit Prakash Shah

the UCC is not a magic wand for uniformity, nor will uniformity achieve national integration overnight. (Source: Express Photo by Amit Mehra)

The idea of a Uniform Civil Code (UCC) is once again in the limelight because of the recent observations made by the Supreme Court. Besides the desirability of the UCC, these observations also raise issues about the court’s role in questioning the government on framing and implementing a UCC in a democracy founded on the principle of separation of powers. I deal with both these aspects in this article.

This is not the first time that the court has called for implementing Article 44 of the Constitution, enjoining the state to “endeavour to secure for the citizens a uniform civil code throughout the territory of India.” In Sarla Mudgal (1995), the court controversially said that a UCC modelled on Hindu law would resolve the treatment of bigamy in different communities. Following widespread outrage, the court clarified that its views were merely observations and not binding. In Pannalal Bansilal (1996), the court came full circle, saying that “a uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to [the] unity and integrity of the nation. The mischief or defect which is most acute can be remedied by process of law at stages.” The court will find it impossible to reconcile this earlier, and arguably more reasonable, position with its present observations.

This is not to say that a UCC should be indefinitely postponed. However, the goal of Article 44 is perhaps misunderstood. In Shah Bano (1985), it was said that a UCC would help national integration by removing disparate loyalties to conflicting laws.

But the UCC is not a magic wand for uniformity, nor will uniformity achieve national integration overnight.

Instead, a UCC ought to have the objective of reducing gender discrimination by empowering women and restoring their dignity and self-esteem. Such an approach can radically alter stakeholder perspectives, and give an impetus of a different nature.

An interesting phenomenon in this context exists in the subcontinent itself. Personal laws in Bangladesh and Pakistan on the one hand, and India on the other, mirror each other in their treatment of majority and minority communities. Post-Partition changes to Muslim family laws in Bangladesh and Pakistan benefited women greatly, but legal benefits gained by Hindu women in India did not spill over into the neighbouring countries. Similarly, minority women in India do not enjoy the same benefits as their counterparts in Bangladesh and Pakistan.

Unfortunately, in contemporary discourse, this idea of a UCC for gender equity is completely lost. Instead, the debate remains steadfastly communal, opposed particularly by a large section of Muslims. In this regard, Tahir Mahmood (‘Walking away from the code’, The Indian Express, October 20) cited two reasons. First, ultra-orthodox Muslims regard Islamic personal law as revealed or inspired law, and thus, untouchable by the modern state. But countries like Turkey and Tunisia have modernised their Islamic personal laws as have also Pakistan and Bangladesh, albeit marginally.

Second, sections of the Hindu community perpetuate the perception that the UCC will be modelled on ancient Indian jurisprudence, uninfluenced by Islamic or other legal doctrines. Nevertheless, discrimination against women pervades even modern codified Hindu laws. Clearly, no personal laws, Hindu or otherwise, can be a perfect model for the UCC.

This spotlight on the UCC is a wonderful opportunity to resume conversations on the issue. As Justice R.M. Sahai in Sarla Mudgal suggested, the Law Commission of India and the commission for minorities could work together to propose reforms, while co-opting bodies like the All India Muslim Personal Law Board.

We could also adopt a parallel civil and religious law system where, in certain matters, like maintenance, inheritance, etc, civil law would prevail, and be mandatory; but the ultimate goal would be to undo societal wrongs to women. Parallel systems of this kind already exist in London, New York and Toronto, where people marry first through civil ceremonies, and then may marry in a church or synagogue. Later, if necessary, they receive judicial remedy for religious aspects of their marriage and divorce. Such a parallel system would encourage an idea of uniformity that would simultaneously respect autonomous laws for defined religious communities, and address provisions inconsistent with constitutional principles.

Even though a UCC should be implemented, it cannot happen in a day. Such a code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive
interpretations on marriage, maintenance, adoption and succession by acknowledging the benefits that one community secures from the others.

In this regard, the courts have sought to make a transition through secular laws and dynamic judicial interpretations. For instance, adoption was made possible for Muslims and Christians only through an expansive interpretation of the Juvenile Justice Act. Geetha Hariharan’s (1999) case recognised the mother as a guardian irrespective of the age of her child. After Shabana Bano (2010) and Danial Latifi (2001), a Muslim divorced woman became entitled to just and fair maintenance even beyond the iddat period.

This is the role that the judiciary must play — of identifying and ironing out internal and external inconsistencies — but developing a comprehensive code is a legislative function, not for judicial resolution.

At the end of the day, a UCC can only emerge through an evolutionary process, which preserves India’s rich legal heritage, of which all the personal laws are equal constituents. Until we acknowledge this, the debate will rage on, with no end in sight.

The writer is former chief justice, Delhi High Court, and former chairman, Law Commission of India
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