straight talk
K B Jandial
A legal and political analyst friend of mine recently demanded an honest answer to his two blunt questions. Is the jubilant Jammu really benefitted by “abrogation” of Article 370? And would the proposed Uniform Civil Code (UCC) benefit the people of Jammu? The spontaneous answer was ‘not really’
But then, certain issues are beyond personal or regional benefits. The larger issue is whether the nation has been benefitted. Yes, on this count, 5th August 1999 historic constitutional changes effected in Article 370 brought about significant gains to Indian nation in general and Jammu & Kashmir in particular, it has impacted the critical issues like security, militancy, law and order, economic development etc. It is hugely laudable. A thought comes, why it was not done earlier. Same can be said about the UCC.
The constitutional changes in Article 370 did deliver much awaited justice to hitherto deprived segments of the society especially in Jammu like Valmikis (Safaikaramchari), West Pakistani refugees and Gorkhas. There was, however, no loss of right of succession for girls marrying non-State subjects and perception otherwise on it was erroneous. Emotionally, yes, people of Jammu felt fully integrated with the great nation, even though they were always part of it with one nationality, amidst talk of a separate nation by the Kashmiri leadership.
The constitutional changes effected on 5th August 2019 had created expected euphoria in Jammu but in its aftermath, the people had to face a lot of avoidable inconvenience almost on every count starting from Domicile certificates to jobs, land etc. The inconvenience caused to the public consequent upon application of new rules, central laws and procedures was mainly due to unimaginative, inefficient, and even pathetic administrative functioning at local level. Absence of political dispensation and local Advisors to the Lt. Governor compounded the situation for the locals. But, howsoever, huge may be the personal discomforts consequent upon such changes, didn’t, in any manner, dilute the significance of the bold, far reaching, and historic decision of Modi Govt to dump into the dustbin the concept of two nations, two constitutions and two flags, perceived to be the major factors for persistent sentiments of secessionism, terrorism and political blackmailing by successive political Kashmiri leadership.
In the Supreme Court, the Central Govt has recently listed out a long list of good things happening to J&K in post-5th August, 2019 period. While it is right that these unprecedented achievements have no relevance to the determination of the constitutionality of the changes effected in Article 370 but the fact remains that the improved situation in Kashmir today is the cumulative impact of the constitutional changes and the consequent policies and actions pursued by the Govt. The successful culmination of the third G20 Tourism Working Group meeting at Srinagar in May this year despite opposition of Pakistan & China, is in sharp contrast to the past international event held on 13th October, 1983 in Srinagar cricket stadium when the ODI match against West Indies was marred with embarrassing anti-India slogans, protests and digging of pitch during lunch break under a “popular rule of NC”. In totality, patriotic Jammu’s personal gain or no gain is inconsequential. It is good that the Apex Court has decided to hold day-to-day hearing of the petitions on Article 370 from 2nd August, 2023 that will rest the matter forever.
The recent move of Modi Govt to cause public debate for possible legislation of Uniform Civil Code to fulfill BJP’s third major electoral promise is equally historic. Serious debate on the need for the UCC began when PM Modi spoke about it while addressing a public meeting at Bhopal on June 15, 2023. In fact, the idea was moved in November 2019 a March 2020 also but the Bill was not introduced, reportedly due to difference of opinion with BJP’s allies on one hand & the RSS, on the other.
The process of reforms in personal laws started much earlier. In 1941, the Britishers appointed a 4-member Hindu Law Committee headed by B N Rau. In its report, the Committee said that the time had come for a Hindu Code. Social progress and modernization could only be achieved by fundamental reforms, which recognized gender equality. It prepared two draft Bills which were sent to the select committee of the legislature. The Rau Committee was revived in 1944 which prepared a Draft Code dealing with Succession, Maintenance, Marriage and Divorce, Minors and their Guardianship and Adoption of Hindus.
The 1947 report of the Committee went far beyond the 1941 proposals, recommending the abolition of the joint family property system, introduction of the daughter’s simultaneous succession with the son to the father’s estate, abolition of the barrier to intercaste marriages, assimilation of civil and sacramental marriages, and introduction of divorce. The Government wanted this draft to become law on 1st January 1948, but had to be suspended when independence of the country led to the different priorities of the legislature and challenges of the new regime.
In 1948, the draft was revised which was more suitable for discussion in the Constituent Assembly. It was referred to a select committee under B. R. Ambedkar. The committee made several important changes in the Bill but still it was opposed by some sections of lawmakers in the Constituent Assembly. But there were many who argued that India’s various personal laws were too divisive and that a uniform civil code should replace these. The idea of Unified Civil Code was accepted as an important part of the effort to construct an Indian national identity, over the separate identities of caste, religion, and ethnicity. But there were some resistance to the code, claiming that its imposition would destroy the cultural identity of minorities, the protection of which is crucial to democracy.
A compromise was reached on the inclusion in the first draft of Article that compelled the state “to endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The clause, not a right, became Article 44 in part IV of the Constitution in the chapter of ‘Directive Principles of State Policy’ (DPSP). It was widely criticised by the proponents of a uniform code because it did not contain mechanism or provide timetable for enforcement.
While Goa has already UCC of its own, Expert Committees have been set up by Uttarakhand, Gujarat & Assam Govts for it. The Uttarakhand’s 5-member Expert Committee headed by the former Judge of the Supreme Court Justice (Retd.) Ranjana Prakash Desai has drafted the report and is currently under print. It has former Chief Justice of Sikkim High Court Justice (Retd) Permod Kohli and three others as members. The Law Commission of India too held a meeting with the Committee to understand the ground work done. On its own, the Law Commission has sought the opinion of the people on UCC. A serious debate has started, throwing in the public domain various grounds for support and criticism. However, the debate on TV, as usual, turned into Hindu- Muslim, the latter alleged that it is an attempt against the minorities and to polarise voters for the 2024 Lok Sabha election.
The DPSP under Article 44 of the Constitution runs into a conflict with fundamental right granted to profess their religion. Article 37 says that the provisions of the DPSP are not “enforceable by any court” but the principles laid down are nevertheless, “fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws”. This indicates that the constitution speaks for making law on the principle of UCC. Article 25 gives the citizens a fundamental right to freely profess, practice and propagate religion but it is subject to public order, morality, and health. This right conflicts with fundamental right of equality and the basic human rights. Depriving womenfolk of equality with men and treating them differently under personal laws is against the spirit of equality under the Constitution and Charter of Human Rights.
The UCC is meant to replace existing provisions under different personal laws applicable to respective religious entities which are inconsistent and conflicting with each other. It would provide common provisions for all religious communities in their personal matters like marriage, divorce, maintenance, inheritance, succession, adoption etc and in the process integrate the country. Some leaders are raising bogey of interference into religion but the reality is that these provisions have nothing to do with religion.
The Supreme Court too has been recommending law on UCC. In the landmark judgement in Shah Bano case, the SC elucidated that “a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” In another case, it said that the time has come for a complete reform of the law of marriage and make a UCC for the country. In John Vallamatton vs Union of India case, the SC said that Article 44 is based on the premise that there is no necessary connection between religion and personal law in a civilised society. In another case, Seema Vs Ashwani Kumar, the SC held that registration of all marriages should be the first step towards UCC.
The Special Marriage Act, 1954, in a way, is the first step towards UCC as it provides a form of civil marriage to any citizen of India irrespective of religion, outside the specific religious personal law. Any citizen including Muslims can marry under this Act and take benefits of secular and uniform actions flowing from it and get the protections not available under the Personal Law. Under the Act, polygamy is illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law. Section 494 of IPC penalises the person marrying again in life time of his wife (bigamy) with imprisonment of seven year and a fine. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down in the civil law away from the rigors of Personal Laws.
The Muslim leaders and opposition parties (oppose every move of PM Modi for political consideration) are hell bent on preventing this legislation, dubbing it anti-Muslim, anti-secular and unconstitutional, showing callous attitude towards women. Some of them are raising the issue of enforceable fundamental rights and unenforceable DPSP. Like triple talak, Muslim women are overwhelmingly supporting the Common Civil Code. A leading TV channel CNN NEWS 18 in the first ever survey conducted among Muslim women of different strata in 25 States covering 8035 women, revealed that 67 % to 80 % responding women supported laws for common marriage age of 21 years, divorce, remarriage of divorcees, adoption, equal share of inheritance, and freedom of executing Will for their property and opposed to four wives.
The Constitutional mandate is clear. It seeks to integrate India by bringing all communities on a common platform on personal matters currently governed by diverse personal laws which do not form the essence of any religion. Despite illogical opposition, the UCC would become the reality one day and liberate the womenfolk across religions from the shackles of orthodoxy, backwardness, and religious bigotry to enjoy rights without gender bias.
(feedback:-kbjandial@gmail.com)
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