Wednesday, July 13, 2016

Uniform Civil Code : Now is not the moment



A Uniform Civil Code, if brought in now, will be perceived as an apology for hegemony of Hindu laws over the personal laws applicable to Muslims and Christians — and justifiably so

It is reported that the Union Law Minister has requested the Law Commission to examine the feasibility of ushering in a Uniform Civil Code. In all the debate about the Code, there is an assumption that it will pave way for national integration. The imperatives are traced to the constitutional provision of Article 44 that exhorts it as among the Directive Principles of State Policy.
There are several provisions in the Constitution which are transitory, such as the number of years of provision for reservation of seats for representation in the Parliament and the Legislative Assemblies (Article 334), the time frame when Hindi will substitute English as the lingua franca for official purposes (Article 343), and the special status to Jammu and Kashmir (Article 370). The withdrawal of special status to Kashmir in the present atmosphere will be an invitation to anarchy; reserved constituencies are absolutely essential for several more years to assure adequate political space for the Scheduled Castes/Scheduled Tribes; Hindi has still very little currency in the southern States.
The Uniform Civil Code, if brought in now, will be perceived as an apology for hegemony of the Hindu laws over the personal laws applicable to Muslims and Christians, and justifiably so. To B.R. Ambedkar at the time of initiating the dialogue and finalising the draft of the Constitution, it was the obvious choice, for he saw no merit in the role of religion in its application to personal laws. The truth is that personal laws are what we confront in our personal lives from birth to death, viz. laws of marriage, maintenance, adoption, custody, guardianship of children and succession. Religion is the first affinity at birth and it is carried through at one’s will through the laws that we recognise as personal to him/her. If we withdraw the personal laws by force, we trench upon the most intimate emotion of an individual. The argument often offered is that every other country does not have different personal laws, so why have it? Ask this question instead: we have different personal laws, how does it denigrate our national solidity? Any talk on Uniform Civil Code must come at such a time and in such a way that we have gradually moved towards assimilation of the very best from each of the personal law systems that exist.
Judicial interpretations as a tool

There is no one personal law which is complete and just in itself. What we cannot achieve through forced legislation, we are slowly achieving by seamless transition through secular laws. For instance, opposition to a private bill for uniform adoption law was thrown out by loud protests in Parliament some years ago. The apprehension of the Muslim community was that concepts alien to its socio-religious practices will march one after another if change in legislation is permitted in one field. It was a prospect of suffering forced indignity that was the cause for the opposition. The opposition by Christians was no less vociferous. When adoption was made possible through the Juvenile Justice Act, the Bombay and Madras High Courts adopted dynamic interpretations to hold that adoption under the Act will be applicable to Christians as well. Soon enough the Supreme Court ruled that Muslims could also adopt under the Act. Not a whimper of protest from any community!
Guardianship laws for Hindus and Muslims carry a bias towards the father as the natural guardian to a minor child. Judicial pronouncements on the paramount welfare consideration of the child and the decision in the Githa Hariharan case have largely straightened the slant and recognised the pre-eminent importance of a mother as a guardian irrespective of the age of the child, even beyond five or seven years of age. Where there have been seeming inequities in the application of laws for provision for maintenance being restricted only for the period of iddat for divorced Muslim women and the ease of dissolution of marriage through pronouncement of talaq, they have changed largely due to judicial pronouncements. Now under the law of the land, a divorced Muslim woman is entitled to provision for maintenance for a lifetime or until she is remarried, which shall be made within the period of iddat (Danial Latifi v. Union of India, 2001) — a long distance travelled from the attempt to annul the effect of the Supreme Court judgment in Shah Bano’s case by the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986; talaq shall not be valid unless preceded by an effort at rapprochement and strict rules of evidence about the pronouncement itself (Shamim Ara v. State of U.P., 2002). These judgments have blunted the injustice against whimsical acts of husbands.
Comparing personal laws

Look at the sheer superiority of some of the laws of one community over another. Take the law of succession. Under the Hindu Succession Act, the mother is a Class I heir and the father has no place in the presence of the widow and children. Under the Indian Succession Act, applicable to Christians, in the absence of lineal descendents, the father is an heir along with the widow and not the mother. Do you think that the law is unfair to the father in one case and to the mother in the other? Look at the Muslim law. Both the father and mother are primary heirs. Again, the grant of absolute right to property by succession to a female was not accepted for Hindus till 1956 when Section 14 assured such a right. This provision is the most abused provision by several machinations through pleas of oral partition, oral release, ouster and other things, by the male members of a Hindu family. This provision has probably generated the maximum litigation, the cause being the unwillingness of the Hindu patriarchy to cede to a female member an equal right in the property. Muslim law recognised full right to a woman since the days of Prophet Muhammad, several centuries before the whole of the modern West accorded to a woman property rights.
Examine the law of testamentary succession. Many of the litigations in court are fallouts of heartburn over disinheritance of widows or preference of sons over daughters. It is the unrestricted power of disposition through will that causes many a contest to the dispositions. Muslim law does not allow a bequest to more than a one-third outside-the-line succession without the concurrence of natural heirs and up to a two-thirds share with the consent of natural heirs. In the law applied in Puducherry as well as in Goa, where the Code Civil was applicable, the principle of legitime or quotité disponible caused a fetter to unlimited disposition and reserved a share compulsorily to legal heirs outside the power of disposition. Notwithstanding these salutary provisions, let us assume that the Indian Succession Act imposes a fetter of disposition through will to one-third or two-thirds as the case may be in the manner that the Muslim law recognises. What will be the first reaction? You will hear murmurs of minority appeasement instead of recognising it objectively as the desirable goal of litigation reduction and equitable distribution. The Bombay High Court has opined Section 15 of the Hindu Succession Act, preferring parents-in-law as heirs through husband to parents as heirs to a deceased woman, to be unconstitutional and called to aid the more just provisions under the Indian Succession Act applicable to Christians.
Marriage as a contract under Muslim law is more secular than retention of the concept of the marital bond as a sacrament in the Hindu and Christian communities. The provisions for divorce by mutual consent that have been introduced in the Hindu Marriage Act or under the Divorce Act applicable to Christians are actually a movement towards the Muslim understanding of marriages. Do you think that allowing up to four wives for Muslims requires a change? Shall we in the same breath make illegal even consensual adult relationships outside marriage or concubinage as cognisable offences?
Gradual changes, the way forward

The dynamics of social transformation through the instrument of law from diverse civil code to uniformity shall be gradual and cannot happen in a day. We cannot perhaps set a time limit but India shall be stronger by its multi-cultural, multi-religious differences and our national identity would be more secure in its diverse form than through a forced homogeneity of all personal laws. That shall take place by borrowing freely from laws of each other, making gradual changes in each of the pieces of legislation, making judicial pronouncements that assure gender equality, and adopting expansive interpretations for broadening the outlook relating to marriage, maintenance, adoption and succession by specifically acknowledging the benefit that one community secures from the other. Take up reforms in each personal law through independent initiatives, and we will have created laws that are uniform over a period of time. On this issue, what is seemingly centrist is ultra-right and what could be perceived as conservative is the balanced centre.
K. Kannan is a former judge of the Punjab and Haryana High Court.
(Courtesy: The Hindu dated 13th July 2016) 

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