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India-Today's editorial on Uniform Civil Code
Subject: India-Today's editorial on Uniform Civil Code
A VERY TIMEL REMINDER
India-Today, May 31, 1995
The Supreme Court's directive to the Government that it should enact a
uniform civil code is an example of judicial activism deserving of the
highest plaudits. The provocation for this ostensible intrusion into the
executive realm is a persistent legal and social anomaly which has its
origin in Muslim Personal Law: the freedom Muslims are given to have more
than one wife. This has evidently inspired Hindu husbands to covert to Islam
for the purpose of facilitating a second marriage. The court's emphasis on
the need for a uniform civil code that would supercede personal law followed
its nullification of the second marriages of four men whose wives had sued
after falling victim to this practice. But the verdict in these cases covers
only converts and not Muslims by birth. He can still have four wives under
the Shariat Act (1937) which stipulates that Muslims will be governed by
personal law in cases of marriage, divorce, inharitance, succession and
related matters.
Actually, the Supreme Court was really reminding the govt of its duty.
Article 44 of the Constitution says: "The State shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India."
This is one of the Directive Principles of State Policy required to be
applied by the state while making laws....
Unlike fundamental rights, the directive principles are not justiciable,
that is, a citizen cannot ask the court to force the implemetation of a
directive principle. But in 1979 in the Minerva Mills case, Justice PN
Bhagwati broke this barrier and ruled that the court could, in certain
circumstances, direct the govt to implement a directive priniciple. The
recent judgement is in keeping with Bhagwati's verdict. This is not the
first time, however, that the SC has reminded the govt of its duty to enact
a UCC. The earlier occasion was the controversial 1985 Shah Bano case which
involved the question whether a Muslim husband was exempt from paying his
divorced and indigent wife the monthly compensation stipulated by the
CPC. Under Section 125 of the CrPC, any man who deserts or divorces a wife
who cannot support herself, must pay a stipulated compensation. While
upholding the Muslim wife's right to the protection of the general law,
justice YV Chandrachud stated in passing that it was high time that the
govt implemented the UCC. But Muslims, by and large, resisted being brought
under the purview of the beneral law, arguing that the only compensation to
be paid was during the iddat (a brief period following the separation). Under
Rajiv Gandhi, their demand was enshrined in a statute - the controversial
Muslim Women's Bill.
The court's new pronouncement went much further than Chandrachud. It
requested the prime minister to "have a fresh look at Article 44" and
directed the Centre to file an affidavit by August 1996, indicating the
steps taken and efforts made by the govt towards securing a ucc. This affects
not only Muslims but also Christians who, if they marry under the Christian
Marriage Act, cannot get divorce except on grounds of adultery, as well as
Hindus' entitlement to tax breaks under the classification of Hindu undivided
family. For example, under ucc, either all religions would be able to avail
of these tax advantages, or none.
Even though the court said there was "no justification whatsoever in
delaying the introduction of a uniform personal law in the country", the
long deadline it gave to the govt for reporting the progress made, is a
dampener. This is because by August 1996, the political situation may change
drastically following the general elections. Thus, there is no immediate
pressure on the Rao govt to initiate the long overdue action. It would be
politically inexpedient to take up such incendiary issues in an election year.
The court, nevertheless, laid down the exact route the Center sould take
in this regard. It said the govt shuld ask the Law Commission to draft a
comprehensive legislation in consultation with the Minorities Commission,
incorporating the "present-day concept of human rights for women". In the
interim period, the court asked the Centre to consider whether a committee
could be set up immediately to enact a law for checking misuse of the right
to convert one's religion. It suggested that the law may provide that every
citizen who changes his religion cannot marry another woman unless he
divorces his first wife.
As for the problems involved in enacting the code are concerned, the
court pointed out that, unlike India, many Islamic countries have codified
and reformed the Muslim Personal Law to check its misuse. Polygamy has been
banned in Syria, Tunisia, Morocco, Iran and even Pakistan. One ivory-tower
observation made by Justice Kuldip Singh is "no community can oppose the
introduction of a ucc". To that, Justice RM Sahai added some armchair advice:
"The sentiments and emotions have to be cooled and tempered by sincere
efforts." The need is to draw a balance: to safe guard the civil rights and
the identity of minorities while refusing to pander to religious fundamentalism
of any colour.
