Whenever I
mention anything about any aspect of personal laws or their reforms, whether in
my blog or in conversations, I am confronted with questions regarding Uniform
Civil Code. It is as if unless you have
an opinion on Uniform Civil code, you are not entitled to talk on any other
aspects of personal laws!
It always
surprises me as to why so many people are so concerned about the Uniform Civil
Code (UCC) as if UCC is the panacea for all our social ills! I for one have
never found UCC important enough a subject in the social context of India.
Generally,
there are two streams of supporters for UCC.
First
stream consists of atheists and liberals who want India to adopt uniform
personal laws that are based on internationally accepted universal principles, for
all its citizens, irrespective of their religion, caste, creed or tribe. They base their argument on the need to
protect all our citizens from injustices bestowed upon them by factors like religion,
caste etc. Universal but alien rules are
their demand and these are mostly based on western concept of human rights and
personal laws. In other words, this view
is similar to saying that let us adopt English as the sole language for India
so that there is uniformity among all its citizens. We will discuss later as to why such a view
is not practical in India.
The other
stream consists of people who are otherwise holding strong views on religious
matters; to be more specific, the proponents of Hindutva! They
can be spotted from their eagerness to quote the ‘right to marry 4 women’ and
the ‘right to easy divorce by uttering the word ‘talaq’ for 3 times’, available
to Muslim men, as examples for the injustice that justifies adoption of
UCC. Talk a little further and most
likely you will find the hate of other religions than any genuine wish for
uniformity in civil laws as the reason for their vehement support for UCC. In other words, for them UCC is a mere tool to
beat the minorities with (more often than not for narrow political purposes)!
What is Uniform Civil Code?
Let us see
what this Uniform Civil Code is all about.
UCC generally refers to that part of law which deals with family affairs
of an individual and denotes uniform law for all citizens, irrespective of
his/her religion, caste or tribe.
Laws
relating to crime and punishment are uniform for all citizens. So are the laws relating to commerce,
contracts and other economic affairs. Procedural
laws including laws relating evidence etc are also uniform for everyone. Laws of taxation are same for all except that
it recognises certain religious customs prevalent in the society, like Hindu
Undivided Family (HUF), for special treatment.
However,
family affairs such as marriage, divorce, inheritance, guardianship and
adoption are legally permitted to be governed by customs or rules applicable to
the persons and their community. This
has been the practise from the time of British rule (even before that), because
it was considered prudent not to disturb the people’s religious and community
customs as far as their private affairs are concerned. The same position continued even after the
independence and people were permitted to follow their respective personal
laws.
Over the
period, there have been attempts to codify personal laws applicable to each
religious group. The codified personal
laws relating to marriage, divorce and inheritance are mainly:
- The Indian Christian Marriage Act of 1872 (applicable to whole of India except areas of erstwhile Travancore- Cochin, Manipur and Jammu & Kashmir),
- Anand Marriage Act, 1909 (For Sikh marriages),
- Cochin Christian Civil Marriage Act of 1920 (applicable for Travancore-Cochin areas),
- Muslim Personal Law (Shariat) Application Act, 1937 (making Shariat laws applicable to Indian Muslims),
- The Parsi Marriage and Divorce Act, 1937
- Hindu Marriage Act, 1955 (applicable to not merely Hindus, Buddhists and Jains but also to any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law),
Hindu
Marriage Act (the latest and covering most of the population) itself provides
for exemptions to certain clauses where custom or usage governing each of the
parties so permits. For example, the
legality of marriages involving cousins prevalent in certain groups of Hindus
belonging to South India is protected by this exemption. Similarly, the Act itself is exempted for
people who are governed by any other law.
Courts have recognised certain Tribal customs as ‘other laws’ thereby
exempting the members of certain tribes from applicability of the Hindu
Marriage Act. In other words, even Hindu
Marriage Act is not uniform for all Hindus/persons covered by the Act.
While
Indian Parliament has enacted a secular law for marriages (The Special Marriage
Act, 1954) that provides a system of marriage irrespective of the religion or
faith followed by either party to the marriage, the number of marriages that
occurs under this system is still negligible.
Most of the proponents of UCC must ask themselves as to why they are not
adopting this uniform law of marriage, for themselves or their families, and
then they will get the answer as to why India did not adopt UCC!
UCC is
definitely not about forcing the customs of majority onto minority!
Why we cannot have UCC?
The family
life of Indians is, rightly or wrongly, guided by their respective religious
and customary beliefs. Religions more or
less survive only through the ceremonies and social customs enforced upon its
members. If they are negated, soon enough religions will lose their eminence in
social sphere.
On the
other hand, if a different set of rules that violate the religious precepts are
enforced upon individuals that would negate the fundamental rights of ‘Freedom
of conscience and free profession, practice and propagation of religion’
guaranteed under Article 25 of the Constitution of India.
The debate
on UCC must be widened beyond 4 wives and 3 talaqs. Look at the honour killings and Khap
Panchayat verdicts. They all want to enforce their religious and customary
beliefs on the members of their family and community. If a system other than what conforms to their
faith is forced up on them, it invariably leads to social unrest.
India is a
country of million customs and communities. Everyone thinks that his/her faith
and customs are the best. No one wants
to consider reforming own system, yet wants to worry about others’ systems. As I already mentioned, UCC is used more often
than not as a tool for minority bashing rather than genuine social
reforms. Such minority bashing will
only make the members of those communities more possessive about their identity
and customs, thereby further reducing any scope for a UCC.
The
unfortunate interference and mixing of religions with politics has further
complicated the social atmosphere. The
political stakes will ensure that no one can enforce a UCC over the
multicultural society of India. Instead,
interested politicians will only keep the issue of UCC burning to bash their
opponents and please their vote banks!
UCC is not necessary
In my
opinion, there is no urgent need to force any UCC on an unwilling
population. Most people, be it Hindu,
Christian, Muslim or any other community, are not ready to adopt truly secular
laws separated from religious customs.
Also, it is not right to force the customs of one group, howsoever
dominant it may be, upon other groups.
So, we can try to solve thousands of other less contentious problems
that our society is facing and are more public in nature than personal laws!
As for the
social obligations or protection of human rights etc are concerned, we can
ensure certain bottom line rules through general laws. For example, Prohibition
of Child marriage Act, 2006 is a general law that prevails over all personal
laws. Any conditions that are considered
appropriate can be incorporated in that Act so as to ensure no child marriage
takes place even if personal laws permit it.
Another
such example is Section 125 of the Code of Criminal Procedure (CrPC). This section provides a system by which
courts are permitted to pass orders for maintenance of wives, children and
parents, under criminal procedures, irrespective of person’s religious
status.
As far as
personal laws are concerned, what we need is to bring reforms in each of them
to make them relevant for the changing times.
Instead of an external enforcement, let these changes be internal reforms. That is better for the preservation of social
fabric of the nation and sense of belongingness of its people. Let us not quote examples or ape less sensible
systems like those in religious countries. We
don’t cut our noses to spite others!
Way forward
We must,
however, provide a secular and uniform alternative to people, as in the case of
Special Marriage Act, in case they are voluntarily willing to adopt such
systems. These systems can be modelled
as far as feasible, on universally accepted practices suiting to the
sensitivities of Indians.
Let us
give the option to people to opt out of the classifications based on
religions. If a person decides he does
not want to be governed by any religious personal laws, he must have that
right. Also, we must ensure adequacy of
general laws to ensure basic human rights and human dignity are protected.
We must
also encourage intra- religious debates on their respective personal laws for
bringing in timely reforms. This should
be done in an atmosphere of trust and equality. Also any inputs from outside the
group must be genuine and advisory in nature than being one of bashing and
pulling down!
Always
remember that if your personal law has a better provision, it is to your
advantage and not to others who do not have it in their personal laws. So, leave it to them to figure out whether
they want an advancement or not and make it easier for reformists within their
groups to find a way to convince others on the need for such reforms. Tolerance, as I always say, is not a
concession but an obligation!
