Author:
Anshuman Jaiswal, Student, Banaras Hindu University
(Image Source: timesofindia.indiatime.com)
After article 370, uniform civil code in article 44 probably is the most controversial topic of the Indian constitutional scenario. Unfortunately, uniform civil code has been forever associated in the Indian mind with opposition by the Muslim community. But interestingly not all Hindus are in favour of uniform civil code too. They really believe that personal laws like inheritance, succession, marriage, divorce are really a part of their religion. Religion in this country is the elephant in the room which has the tendency to hide every other social subject.
Religion must be restricted to religion only and the secular activities attached to religion must be regulated, unified, and modified for a strong and consolidated nation. We are only as strong as we are united, as weak as we are divided[1]. The great need of the hour is to generate and sustain a sense of national integrity. We have innumerable northerners and southerners, Hindus and Muslims but very few Indian. Uniform civil code is a step towards societal unity.
There are various countries that were successful in implementing uniform civil code like Germany, France, Spain, Turkey, and many others. Their argument was that the state only protects religious faith and belief. But if religious practices turn counter to public order, morality or health or a policy of social welfare up which the state has embarked, then religious practices must give way for the good of the state as a whole.
Indian constitution has ample provision for equality and also treating the unequal unequally. But discrimination on the basis of religion is not an intelligible differentia and sure does has no nexus with the policies of social reforms. On one hand Muslim law allows polygamy but others don't. Muslim males are allowed extra-judicial divorces but other religions can get a divorce only through courts. Under Muslim law only one-third of share can be disposed of by will, other religions have no such restriction. Muslim females cant get maintenance, except the period of iddat vehicle others can get maintenance till they remarry. These are only a few differences but the list goes on and on.
Laws are impersonal and objective. Religion is based on personal experience, it is immediate and intuitive. It is unchangeable in its innermost kernel. Law must seek to conform to the changing pattern of society[2]. The process of revolution is coterminous with human society. Our besetting sin is religious fundamentalism which is the triumph of blind faith over the free and logical spirit.
Constitutional protection of religious freedom terminates disabilities; it does not create new privileges that act as a cloak over the domination of one gender over the other. It gives religious equality and not civil immunity. Article 25 guarantees religious freedom whereas Article 44 divests religion from social and personal law, marriage, succession, and like a matter of a secular character cannot be brought within the guarantee enshrined in articles 25 and 26. A common civil code will help the cause of national integration by removing the contradiction based on ideologies.
With time everything has to evolve or they perish. When special laws for Hindus and Muslims were created, it was to confer on them the special rights especially to the minority to enable them to join the mainstream without losing their identity, not to remain isolated and carve out niches for themselves that may threaten the secular fabric of the body politic.
Every culture has a special place for institutions like marriage. It is the foundation of civilised society. It is an institution in the mainstream of which the public at large is deeply interested. A disparity of rights in marriage on the basis of religion creates a bipolar society and a feeling of non-uniformity which is a curse to a union.
Laws are made in order to have uniformity in society. But having various civil laws many times results in a situation of clashes and deadlocks to which even the judiciary finds difficulty to resolve. The doctrine of indissolubility of marriage which states a Hindu being converted to another religion did not dissolve a marriage. As well as the conversion is a ground of divorce. But many a time it is seen that the wife who is Hindu married a Hindu man who later converted to Muslim and married another. Now the Hindu wife is left at crossroads as divorce would bring dishonor to her family but her situation at home is not too good too. Law even finds it hard to decide what relief can the Hindu wife get in this situation.
Where more than 80% of citizens have already been brought under codified personal law, there is no justification whatsoever to keep in abeyance the introduction of uniform civil code for all citizens in India[3]. India has evolved to be a nation where every community has learned to live in harmony that has resulted in the advancement of the country as a whole and every individual separately. The time suits well for the introduction of uniform civil code which would be a milestone to the secular character of the constitution.
Article 44 puts the burden on the government as it states that the state should make endeavors to secure to its citizens uniform civil code. This needs a strong political will and the time is just right for this as the present government has a full majority in Lok Sabha. The speeches of the Prime Minister from the Red Fort on independence day also gives an indication that this government might be serious about achieving this dream.
It is also a fact that after the partition, those who preferred to remain in India were aware of the fact that Indian leaders did not believe in the theory of two or three nations. Even Gandhi believed that there can be only one nation that is the Indian nation and no community could make a claim to be a separate entity on the basis of religion. The idea of the division was rejected purely on the basis that every countryman was equal and free to make their own decision and they decided to stay in the union of India. Article 44 also is based on the concept of equality and that there is no necessary connection between religion and personal law in civilized society.
References
[1] Author and Philanthropist J.K. Rowling [2] A modern approach to Islam(book). [3] Smt. Sarla Mudgal, President vs Union Of India & Ors(AIR 1531, 1995 SCC (3) 635)
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