Wednesday, February 20, 2008

Hindu Nationalists for Uniform civil code

Despite Opposition from Mullah-Padre-Comrade brigade
The term civil code is used to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance.
As things stand, there are different laws governing these aspects for different communities in India. Thus, the laws governing inheritance or divorce among Hindus would be different from those pertaining to Muslims or Christians and so on.
The demand for a uniform civil code essentially means unifying all these “personal laws” to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.
What does the Indian Constitution have to say on the subject?
Article 44, which is one of the “directive principles” laid down in the Constitution says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” As Article 37 of the Constitution itself makes clear, the directive principles “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”.
What has the Supreme Court said on the issue?
Very recently, while hearing a case pertaining to whether a Christian has the right to bequeath property to a charity, the court regretted the fact that the state had not yet implemented a uniform civil code. This is not the first time that the apex court has expressed itself in favour of a uniform civil code or taken a dim view of the government’s and legislature’s inability to bring it into being. There have been other occasions — like during the Shah Bano case and later in the Sarla Mudgal case — where too the apex court has come out strongly in favour of the enactment of a uniform civil code. However, none of these comments are binding on the executive or the legislature and do not amount to orders. At best, they exert some moral pressure on the Indian state to move towards formulating a uniform civil code.
Would a uniform code affect the personal laws of only one community?
Not at all. The perception that a uniform civil code would necessitate changes in only Muslim personal law is quite incorrect. As women’s organisations and others have repeatedly pointed out, personal laws governing different communities in India have a common feature — they are all gender-biased.
For instance, the law pertaining to succession among Hindus is unequal in the way it treats men and women. A truly modern, secular, non-discriminatory and progressive code would, therefore, mean changes in all personal laws. The concept of the “Hindu undivided family”, at least insofar as it pertains to succession, would also obviously have to undergo a change under a uniform civil code. Similarly, Muslim, Christian and other personal laws too would have to change. This also explains why historically changes in personal law have been resisted not just by one community, but by the ruling orthodoxy in all of them.
What had prevented a uniform civil code from coming into being?
Since it involves a change in laws, an obvious prerequisite is sufficient support for the move within Parliament. The reason this has been difficult to achieve has been because most parties have held the view that the reform of laws pertaining to the personal domain is better done by pressure for such change from within communities rather than as an imposition from above. Further, for historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposal.
To put the delay in perspective, however, it should be added that Article 44 of the Constitution is by no means the only directive principle to have not been implemented more than half a century after it was laid down. Most directive principles continue to remain pious doctrines rather than the law of the land.

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