HVK Archives: The long wait for a uniform civil code
The long wait for a uniform civil code - The Times of India
Rakesh Bhatnagar
()
4 March 1997
Title : The long wait for a uniform civil code
Author : Rakesh Bhatnagar
Publication : The Times of India
Date : March 4, 1997
Amendments to a community's personal law with a view to bringing
about changes for betterment is one thing, but to tinker with the
enactments with the sole purpose of introducing 'uniformity' is
another. The former may be an act of reform while the latter would
be an arbitrary action that could attract the disapproval of the
community.
The Union government has already expressed its helplessness in
enacting a Uniform Civil Code (UCC) applicable to all the religious
communities. It feels that such a piece of legislation would be
against its policy not to interfere with the personal laws of
minority communities. The government has revealed its stand in
response to the then supreme court Judge Kuldip Singh's directive
asking it to explain the steps it had taken for securing uniformity
in the personal laws, particularly those of the Muslims.
The government maintains that unless the initiative for change
comes from the community, it cannot interfere with its personal
laws.
In 1952, the court had had occasion to consider the issue while
deciding the validity of the Bombay Prevention of Hindu Bigamous
Marriages Act. The issue of whether it was for the legislature to
decide what constitutes social reform had then been argued before
the court. It must not be forgotten that in a democracy the
legislature is constituted by the chosen representatives of the
people. "They are responsible for the welfare of the state and it
is for them to lay down the policy that the state should pursue,"
observed the court while declining to entertain the petition.
It was contended in the petition that the legislation discriminated
against the Hindus insofar as it subjected them alone to severe
provisions for punishment. Another point was whether the act should
have been made applicable to the Muslim citizens of Mumbai as it
was a social reform measure.
Against this backdrop, it was said that there was no reason why the
Muslim community was not given the benefit of this social reform.
lie petitioner's argument sought to achieve indirectly what was
perhaps hot possible to achieve indirectly. The court was conscious
of the implications as it noted: "In part this argument is
political and as such we are not concerned with it."
However, part of the argument was based on the provisions of
Article 14 of the Constitution. Whether it was expedient to make
this act applicable to the Muslims as well as the Hindus of the
city would be a matter for the legislature to consider. It is not
obligatory for the legislature always and in every case to provide
for sweeping social changes and reform at one go. So long as the
legislature, in taking gradual steps for social welfare and reform,
does not introduce distinctions or classifications that are
unreasonable, irrational or oppressive, it cannot be said that the
principle of equality before the law is offended. Thus the
Maharashtra legislature might have thought that the Hindu community
was more ripe for the reform.
'Besides, in the Muslim community divorce has always been
permissible and marriage is a matter of contract. Under these
circumstances, it could not have been said that the reform was
discriminatory against the Hindus.
Noted jurist and late judge P.B. Gajendragadkar then observed that
the Constitution itself recognises the existence of personal laws
relating to marriage, divorce, adoption, wills and so on.
Therefore, the framers of the Constitution left personal laws
outside Part III of the Constitution relating to fundamental
rights. The Constitution makers may have been conscious of the
fact that these personal laws needed to he reformed but they did
not want to abolish them or include them in Part III to make them
amenable to legal challenge.
Even while making bigamy a penal offence, Muslims have been
excluded from its ambit. Section 494 of the Indian Penal Code
deals with bigamy. A Hindu or Parsi or Christian husband can be
convicted for bigamy. Exclusion of Muslims from this law is
because polygamy is recognised as a valid institution in the Muslim
community. Though both Muslims and Hindus have their personal laws,
the bigamy law, is not enforceable on Muslims. The, supreme court
said in 1952 that Article 44 itself recognises separate and
distinctive personal laws and lays down a directive to be achieved
within a measurable time that "the state shall endeavour to secure
for the citizens a uniform civil code throughout the territory of
India."
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