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February 22, 2000


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E-Mail this column to a friend Arvind Lavakare

Why 'Saffron' Code will get UN support

India's younger generation has been made to believe that the founding fathers of their country's Constitution were all wise men of vision. We have been told that those men of yore were fired by the concept of a democracy where everyone is equal before the law and where everything is subsumed to the fraternity, unity and integrity of the nation.

Unfortunately, some of those founding fathers, it must be accepted in retrospect, were the proverbial black sheep whose religious faith could not quite be overcome by national ideals. That seems the only plausible explanation of why several members of the Constituent Assembly objected strongly during debate to the single civil code projected in Article 35 of the Draft Constitution

Thus, some members wanted the Constituent Assembly to believe that the Muslim Personal Law was an immutable law in India from ancient times. Some believed that enactment of a civil code would be tyrannical to the minorities, each of which had a personal law.

It took Dr B R Ambedkar's erudition to demolish the myth of the immutability of "divine" law and to prove that the proposed new civil code would, at that point of time, be most suitable to apply for all citizens, irrespective of their religion.

K M Munshi, the Congressman who founded the Bharatiya Vidya Bhavan, made some strong and statesman-like assertions in the Constituent Assembly. Drawing its attention to the fact that "Nowhere in advanced Muslim countries has the personal law of the minorities been recognised so sacrosanct as to prevent the enactment of a Civil Code", he went on to exhort the august body to accept that "When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and not to the customs of a part of it. If you look at the countries in Europe which have a Civil Code, everyone who goes there from any part of the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to the minority."

He was clear in his goal that "We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What these things have to do with religion, I really fail to understand." Finally, he was categorical that "If the religious practices of the past have been so construed as to cover the whole field of life, we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation." (Pg 547, Vol. VII, Constituent Assembly Debates.)

It was because of views similar to Dr Ambedkar's and Munshi's that our Constitution did finally have Article 44 which clearly directs the State to "endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India."

Regrettably, in what must be labelled as the earliest act of appeasement of the minorities, the concept of a uniform civil code was not made a fundamental right of the citizen but relegated to the position of a concept desirable but not enforceable by any court in the country.

Salt was rubbed in when, in 1954, Jawaharlal Nehru, the nation's darling then, got cold feet and introduced in Parliament the single civil code (proposed under Draft Article 35 by Dr Ambedkar) not as a uniform law applicable to all citizens, but as the Hindu Bill that caused consternation to many in that community including the then President of India. (There is no record of that deviation being described as tyrannical to the majority.)

That very first act of appeasement came despite an appended note of dissent by M R Masani, Hansa Mehta and Rajkumari Amrit Kaur. The three had stated therein that "One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life. We are of the view that a Uniform Civil Code should be guaranteed to the Indian people within a period of 10 years." (Pg.177, Vol.II, The Framing of India's Constitution by B Shiva Rao)

Ten years be blown, the last 50 has seen no single step towards the uniform civil code since our Constitution came into effect. What is more tragic is that even the mention of such a code has today become a " contentious issue", as horrifying as being HIV positive or, worse, as fatal as being afflicted with AIDS. The world moves forward, ever forward, while those damned "secularists" of ours have forced us back to the dark ages.

This has happened despite pronouncements of our humane jurists and their appeals to sanity, appeals to live up to the ideals of Article 44 enshrined in the nation's Constitution. Just take a look at these.

In the case of Mohd Ahmed Khan vs Shah Bano Begum, the Supreme Court's judgement of April 23, 1985 lamented that "Article 44 has remained a dead letter." The Court emphasised that "A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies." The court urged a beginning to be made in that direction "if the Constitution is to have any meaning." Rather than heed this advice, the "secular" Congress government enacted a new law castrating the Supreme Court judgement that had gone in favour of the forlorn, divorced female petitioner praying for life-long maintenance. The Congress justified its insolent and inhuman inaction against the Muslim woman by saying that the process of reform must come from "within."

Earlier in the same year, 1985, there was the case of Ms Jorden Deiengdeh vs S S Chopra in which the Supreme Court believed that "Surely the time has come for a complete reform of the law of marriage…We suggest that the time has come for the intervention of the legislation to provide for a uniform code of marriage and divorce." And what did the Congress do? Nothing, waiting for the reform "within" -- presumably meaning the religious elite and politicians thriving on communal vote banks.

In May 1995 came another judgment of the Supreme Court that decided the civil petition of an aggrieved Hindu woman whose husband had embraced Islam to marry another woman without getting divorce from the first wife. One of the two judges hearing the plaint observed that 'Freedom of religion is the core of our culture. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression." The second judge believed that "Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist." Yet again the court castigated successive governments for being "wholly remiss in their duty of implementing the Constitutional mandate under Article 44.'

And yet again, there was insolent, inhuman inaction from the "secular" Congress regime.

The pathetic results of this inaction are there to see and feel for all those who have the eyes to see and the heart to feel the plight of millions of our women silently weeping for gender equality. Thus, one law prohibits polygamy, another permits four wives; one law requires a court to grant a divorce from marriage, another allows a wife to be divorced by an oral unilateral declaration. Even the procedure for dissolution of marriage is different for men and women governed by the same law; in one law, adultery is ground enough for the male to secure a divorce, but the woman requires an additional reason such as incest.

Again, neither the Hindu nor the Muslim woman gets inheritance equal to that of her brother. Under Hindu Law, a person may dispose of his entire estate at his discretion by his will, but under Muslim Law he may dispose of only one-third, the remaining two-thirds going in fixed proportions to designated relatives.

Lastly, there's the matter of adoption. A Hindu can legally adopt, but only a Hindu child, while there is no law of adoption for Muslims, Christians and Parsis.

While several genuine, apolitical secularist thinkers, men and women, have highlighted these and other anomalies and pleaded for a uniform civil code, one man's view needs to be spotlighted if only because he was a cultured gentleman, a venerated high court judge, a Congressman who was a member of Nehru's council of ministers and also was … a Muslim! His name: M C Chagla. In his book Roses In December (1973), Chagla wrote as follows on the Uniform Civil Code:

'Although the Directive Principles of the State enjoin such a code, Government has refused to do anything about it on the plea that the minorities will resent any attempt at imposition. I wholly and emphatically disagree with this view. The Constitution is binding on everyone, majority and minority; and if the Constitution contains a directive, that directive must be accepted and implemented. I am horrified to find that in my country, while monogamy has been made the law for the Hindus, Muslims can still indulge in the luxury of polygamy. It is an insult to womanhood; and Muslim women, I know, resent this discrimination.'

Note Chagla's word 'horrified.' As mentioned in this column of a week ago, even the United Nations now appears horrified that by withholding the enactment of a uniform civil code we Indians have not yet complied with our signed obligation to an international treaty for bringing about gender equality.

It is time therefore that even as the BJP itself stands handcuffed by the National Democratic Alliance agenda, its countless well-wishers should now vigorously propagate, throughout the country, the irrefutable truth --- the truth that even the world body with a membership of 185 countries will support an Indian uniform civil code based on the BJP's enunciated principle of letting the Law Commission incorporate in it the modern, progressive and equitable ingredients of the various personal laws even if it means discarding the Hindu Undivided Family concept.

And if Sonia Gandhi really aspires for a golden niche in Indian history, she should show the mental courage to support such a code now…here and now.

Arvind Lavakare

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