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Unifying personal laws

By V.R. Krishna Iyer

Personal laws may be reformed from within, without a quantum leap into a common code.

NATIONAL POLEMICS has suddenly spurted to direct people's attention, with covert communal dimension, on Article 44 of the Constitution, which, in mild diction, persuades the state to consider the evolution of a uniform civil code. This is now a hot issue on which cold neutrality is not virtuous taciturnity.

One of the major problems that has provoked exciting polemics and aggravated majority pressures is the enactment of a uniform civil code for the citizens throughout the territory of India, as desiderated in Article 44. The provision is cautiously worded and calls upon the State to `endeavour' to secure such a code. It is neither time-bound nor carries a compulsive urgency. But the Hindu fundamentalists make it a militant demand as if Hindu law should be made the national family law. There is apprehension in the mind of the Muslim minority that the Quran is in danger, that its sacred family law will be jettisoned. In the Shah Bano case in 1986, the Supreme Court expressed displeasure at the delay in framing a uniform civil code, which was regarded as a secular imperative. Raging controversy demanding the uniform code followed and was resisted in full fury by the Muslim minority, with distinguished exceptions.

It is true that a common family code for all citizens alike may be a solidarity factor strengthening a sense of fraternity. But national unity is not in peril by the absence of such a code. Nor does the enactment of such a code eliminate religious fumes and divisive feelings. In Goa, from the Portuguese days, there has been a common civil code. Nevertheless, communal differences and religious schisms do mar the politics of the State. Even among the Hindus, there were different schools of law until some measure of statutory uniformity, not all progressive, was brought about. Did nationalism diminish because of divergences? Among Christians, there have been different laws in different areas (a la Travancore and Cochin) and disparities among men and women in the matter of inheritance. True, among Muslims, matriarchal system prevailed in Malabar without weakening their national commitment. The status of women under the Shariat vis--vis marriage, divorce and inheritance may justify some changes in Islamic jurisprudence. The uniform code as a militant demand with a chauvinist sharpness had died down. The entire issue has been recently revived by a Supreme Court judgment advocating a uniform civil code alongside its expression of regret at the non-implementation of Article 44 of the Constitution. The Chief Justice of India, V.N. Khare, claimed that such a code would help the cause of national integration and removing the contradiction based on (religious) ideology. The Sangh Parivar pugnaciously advocated this proposition. To coerce the Muslim minority to give up its family law may do more harm than good to national unity in the current crisis of corrosive communalism. In the Pannalal Bansilal case (1996-2SCC 498), the Supreme Court made certain observations pregnant with progressive pragmatism:

"In a pluralist society like India, in which people have faith in their respective religious beliefs or tenets propounded by different religions or their offshoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, creeds or sub-sections in the society, speaking different languages and dialects in different regions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualise diversity and attempt to foster uniformity among people of different faiths. A uniform law, though it is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by the rule of law, gradual progressive change and order should be brought about. Making [a] law or [an] amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief of defect, which is most acute, can be remedied by process of law at stages."

In many countries, including the United States, people are governed by different laws in different States, based on region or religion. In Las Vegas, a divorce can be purchased at a price almost instantly in chapels. Is that progressive? There are countries where living together without marriage is legally recognised, with rights ensuing to partners. Does that comport with Indian morality? The belief that uniformity of family laws, even if primitive or promiscuous, is necessarily productive of national integrity is a lie. A great code guaranteeing equal human rights is desirable. Nationalism is a paramount value and that is higher than personal laws with plural variations. However, when we regard the rights of the child and empowerment of women, when we consider the importance of secular justice in family relations, there is a good case for changes in the personal laws. And this applies to the Hindu Code, the Christian law and the Muslim Shariat. The first step that has to be taken is to introduce progressive changes in the Muslim law, the Christian law, the Parsi law and the Hindu law, keeping their identity intact. This is perfectly possible. Islamic scholars, based on the texts of the Quran and the sayings of the Prophet, have argued for several progressive changes in Muslim personal law. Tahir Mohamed, in one of his books, had dealt with permissible progressive reforms in Muslim law consistent with the values of that religion, although in a later edition of his work he deleted the chapter. My powerful plea is that the personal laws may be reformed from within, without a quantum leap into a common code. Remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics. Indeed, the Christian law also needs change if gender justice is to be a reality. Likewise, there are provisions in the Hindu law, which require reform. When monogamy was statutorily enacted for the Hindus, some fundamentalists challenged it on the ground of religion although they were rebuffed by the court. The best course will be to set up Commissions for drafting progressive changes in the family laws without doing violence to the fundamentals of faith. I wholly agree with Rafiq Zacharia in his valuable observations made in the third Hakeem Abdul Hameed Memorial Lecture: "The Allama has categorically declared: `The claim of the present generation of Muslim liberals to re-interpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified. The teaching of the Quran that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.' Some of the urgent issues to be so tackled are: Whether we should not agree to monogamy, which was recommended by Justice Amir Ali and Justice Mehmood; even the Muslim brotherhood of Egypt has said that it is a preferred Quranic alternative; whether the laws, relating to marriage, divorce and maintenance, should not be reformed. Most Muslim countries have taken several substantial steps in this direction; should we not persuade our co-religionists to take to family planning more earnestly because without it, India cannot succeed in removing poverty, disease and unemployment; then there is the question of Babri Masjid — should we allow it to linger on with the enormous damage it has already done to Hindu-Muslim relations; also the question of singing Vande Mataram. It is wrongly propagated that it calls upon the people to prostrate before the mother, the Sanskrit word means bow. In any case standing and showing respect to a national song, so declared by the Constitution, does not compromise our religion; those who have reservation may not sing it."

First things first. While a uniform civil code is not particularly high on the national agenda, value-based progressive changes, preserving the separate identity of each religious group, is a feasible project avoiding insult and injury to any minority. This may be a preliminary step to pave the way for a common code. Mobilisation of Muslim, Christian and Parsi opinion in this direction is sure to yield salutary results and reduce fundamentalist resistance. Maybe, to facilitate a national debate, a facultative common code may be drawn up at a non-governmental level. It will be purely optional for minorities to accept or reject those provisions.

Our founding fathers have been cautious in their phraseology while drafting Article 44 and therefore in a situation where the nation is in the grip of communal tension hurry must make way to moderation.

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