thehindu.com
http://www.thehindu.com/opinion/ope http://www .thehindu.com/opinion/open-page/uniform-civil-code n-page/uniform-civil-code-will-it-work-in-indi -will-it-work-in-india/article6625409.ece a/article6625409.ece
Uniform civil code: will it work in India? It needs to be asked if it is possible or practicable to reconcile divergent laws and formulate a uniform or common code acceptable to all the communities Article 44 of of the Constitution Constitution — which talks talks of a uniform uniform civil code code for all Indians Indians — was was the subject subject of a recent debate in Chennai. The main argument of those who spoke in favour of such a code was that it has the potential to unite India because Hindus and Muslims had followed the “common customary Hindu civil code” smoothly till 1937 when “the Muslim League-British combine” divided them by imposing sharia on Muslims through the Muslim Personal Law (Shariat) Application Act. But only a minuscule minority of Muslims followed Hindu customs before 1937. Even this section had the right under laws such as the Cutchi Memons Act, 1920 and the Mahomedan Inheritance Act (II of 1897) to opt for “Mahomedan Law”. As for a majority of Muslims, there is enough evidence to show they followed Muslim law, not the Hindu civil code. In 1790, when Governor-General Cornwallis introduced a three-tier court system in Bengal (which was subsequently extended to other parts of India) he included qazis and muftis as “law officers” to assist British udges. The highest criminal court of this system, Sadr Nizamat Adalat, was assisted by the chief qazi of the district and two muftis. In cases pertaining to Muslims it had to apply Islamic law as per the fatwas of these law officers, which were binding on the court. The British judges had to wait till 1817 to overrule the fatwas when a resolution was introduced to repeal their binding character (Rudolph Peters: Crime and Punishment in Islamic Law ). ). Before Cornwallis, Warren Hastings had decreed in 1772 that in matters of inheritance, marriage and other such religious affairs “the laws of the Koran with respect to the Mahomedans and those of the Shastra with respect to the Gentoos [Hindus] shall be invariably adhered to.” (Richard Shweder & Others: Engaging Cultural Differences ). Even when the Indian Penal Code was enacted in 1860, Muslim personal laws were left untouched. However, these laws were sometimes superseded by antiquated customs that had acquired the force of law. For example, as per prevailing custom, property received by a woman as inheritance or gift was not hers and had to be given back to the heirs of the last male owner [ Muhammad v. Amir (1889) P.R. 31, cited in Mulla, Principles of Mahomedan Law]. As such customs deprived Muslim women of their property rights in Islam, Muslims wanted only Muslim law to be made applicable to them. Act of 1937 The Shariat Act of 1937 was the result of this demand. It repealed all such provisions in earlier legislation that permitted permitt ed custom to custom to over ride ride ‘Mahomedan law’ in cases where the parties were Muslims. B ut the British did not impose this Act on all Muslims. It was made applicable (per Section 3) only to those Muslims who declared in writing their intent to come under it. This explodes the myth that it sought to divide Indians on communal lines. Nevertheless, a comparative study of the personal laws of Hindus, Muslims and other minorities will reveal that the sheer diversity of these laws, coupled with the dogmatic zeal with which they are adhered to, cannot permit uniformity of any sort. In fact, the heterogeneity of Hindu law itself is such that even the possibility of a uniform Hindu code is ruled out. Talking of marriage alone, under the Hindu Marriage Act, 1955, marriages may be solemnised in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu. For instance, according to the saptapadhi form form of marriage that is followed mostly in northern India, the marriage is deemed to be
complete and binding when the couple take seven steps around the sacred fire. On the other hand, in the south suyamariyathai and seerthiruththa forms of marriage are followed. Under these, the marriage is valid if the parties to the marriage declare in the presence of relatives that they are marrying each other, or if they garland each other, or put a ring on each other’s fingers or if the bridegroom ties a thali around the neck on the bride. Rites and ceremonies Also, for a marriage to be valid under Hindu law it has to be solemnised in accordance with the customary rites and ceremonies of at least one of the parties. Thus, if a Jain marries a Buddhist by performing the rites of a Sikh, the marriage is invalid ( Sakuntala v Nilakantha 1972 , Mah LR 31, cited in Family Law by Paras Divan). In Muslim law there are no elaborate rites or ceremonies, but Sunni and Shia practices differ. It, therefore, needs to be asked if it is possible or practicable to reconcile these divergent laws and formulate a uniform or common code that is acceptable to all communities. India already has an optional civil code in the form of the Special Marriages Act, 1954. This, read with similar Acts such as the Indian Succession Act, 1925, provides a good legal framework for all matters of marriage, divorce, maintenance and succession for those who may wish to avoid the religion-based laws.
Does India Need Uniform Civil Code
Note: Though related question was asked in Secure, here you will have freedom to debate this topic without worrying about word limit and express your thoughts freely.
outlookindia.com
http://www.outlookindia.com/printarticle.aspx?220920
Why I Support The Uniform Civil Code The Supreme Court has once again set the cat amongst the pigeons on the matter of a Common Civil Code. Gloating and breast beating has commenced on all sides of the politico-social spectrum. As an Indian Muslim I would like very much to be heard.... The Supreme Court has once again set the cat amongst the pigeons on the matter of a Common Civil Code. Gloating and breast beating has commenced on all sides of the politico-social spectrum. As an Indian Muslim I would like very much to be heard. Let’s get some ridiculous myths out of the way first: Myth 1: All Muslims are opposed to a Common Civil Code. Clearly, this is not the case. I am one who is not, as are many others. Myth 2: The Muslim Personal Law gives Muslims some great benefits that are being withheld from non-Muslims. Nothing can be further from the truth. The personal law only gives Muslims the right to be governed by Shariah principles in the personal matters of marriage, inheritance, property rights and religious observance. Commercial and criminal law is the same for all Indians. So why do I support a common law for all Indians in civil matters? For four very good reasons. First, there are at least six schools of jurisprudence among Muslims, four among Sunnis and two among Shias. The Indian Muslim Personal Law is a curious amalgam of principles from different schools, but most particularly the Hanafi branch of Sunni legal belief. While most Indian Muslims are from this sect, our so-called Muslim Personal Law does not cover large numbers of Muslims, who prefer their own interpretation of Shariah law. Therefore, this is hardly in conformity with pure Koranic practice, as the more extreme elements among the Muslim clergy would have us believe. Second, I believe the most important demand that Muslims should make in secular India is that we are treated equally. That we have equal rights and opportunities as all other Indians and that the State will afford us the same protection of our rights and property as it would Hindus. I do not believe Muslims can make that demand when at the same time we want to be treated differently in matters of personal law. This is an irreconcilable inconsistency. Third, at least half of all Muslims are badly served by the Muslim Personal Law. Triple talaq, no rights to maintenance (thank you, Rajiv Gandhi!) and subordinate rights of inheritance are all examples of how my Muslim sisters labour under an unfair and, dare I say it, unIslamic set of regulations. I have a daughter and if she should want to marry a Muslim it will be under the Special Marriages Act, thank you very much. And lastly, this ridiculous Muslim Personal Law is a convenient stick for Hindu communalists to beat Muslims with. Giving us the right to be governed by our own personal law gives them the right to claim that we are some kind of privileged minority with a suspect commitment to the Indian Republic. Take away the law and deprive Pravin Togadia of the stick. However, I would also like to raise two very specific and critical qualifications to my support of the Supreme Court mention. We cannot move towards a Common Civil Code without absolute clarity on these matters: One, understand and do something about the fundamental reasons why Indian Muslims cling to their own Personal Law. Deep within the psyche of the Mussalman is a fear of disenfranchisement, of complete loss of identity and marginalisation within Indian society.
Two, every time you burn homes in Gujarat, every time you treat Urdu as an alien tongue, every time a Muslim boy loses a job opportunity thanks to discrimination and every time Mr Togadia hints darkly at ‘the enemy within,’ you compound the siege mentality. When everything is taken away, goes the ghetto belief, let us cling tightly to what we are. The Muslim Personal Law, sadly, has become one of the symbols of identity, an identity under threat. A Common Civil Code must imply that ALL citizens are covered under the same laws on civil and commercial matters. Let us dismantle at the same time, special privileges under the Hindu Undivided Family provisions as also any special laws governing the personal affairs of Christians, Parsis, Jains, Buddhists, and Sikhs as well as other groups like the Nairs of Kerala who follow the principles of matrilineal descent. Do away not only with Muslim Personal Law but also other laws on the statute books that grant legal sanctity to unique practices of the diverse communities of India. As an Indian Muslim I wholeheartedly support the idea of a Common Civil Code. It is a fair and equitable Directive Principle of the Constitution of India. Let us, however, understand this matter in its entirety, away from the hysterical jubilation and frantic wailing of communalists on both sides. One people. One law. Yes, for sure!
Tariq Ansari is Managing Director, Mid Day Multimedia, Mumbai.
outlookindia.com
http://www.outlookindia.com/printarticle.aspx?221068
Ambedkar And The Uniform Civil Code 'I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.' During the debates in the Constituent Assembly, B.R.Ambedkar had demonstrated his will to reform Indian society by recommending the adoption of a Civil Code of western inspiration. He had then opposed the delegates who wished to immortalize personal laws, especially Muslim representatives who showed themselves very attached to the Shariat:
"I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights."
However, Ambedkar did not obtain anything more than an article of the Directive Principles stipulating that:
"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."
This recommendation was to remain a dead letter, notably because the minorities – to begin, with the Muslims – took a hard line on their personal law. Many Congress members also opposed a reform of Hindu practices concerning inheritance, marriage (and divorce) and adoption, as shown by the fate of the Hindu Code Bill. This phrase refers to a project aiming to reform traditions of the Hindu society. The British had drafted such a text in 1946 but they had had no time to get it adopted. In 1948, Nehru entrusted the drafting of the new code to a subcommittee of the Assembly and nominated Ambedkar as its head. The latter got written in it fundamental principles such as equality between men and women on the question of property and the necessity of justifying concretely a petition for divorce – a procedure which belonged too often until then to a case of a repudiation of the wife by her husband. This questioning of the customs governing the private life of the Hindus aroused a profound emotion, not only among the traditionalists of the Hindu Mahasabha, but also among leaders of the Congress as prestigious as Rajendra Prasad, who, after being president of the Constituent Assembly had become the first President of the Indian Republic. Prasad, in a letter to Patel, who himself showed strong reservations vis-à-vis such reforms of the Hindu traditions, rose against a project whose "new concepts and new ideas are not only foreign to the Hindu law but are susceptible of dividing every family". Jawaharlal Nehru was attached to this code in which he saw, quite as Ambedkar, one of the corner stones of the modernization of India. He even announced that his government would resign if this bill was not passed. Ambedkar pressed him to submit it as quickly as possible to Parliament . The Prime Minister asked him f or a little of patience and even split the Code into four subsets for defusing the opposition before submitting it to the Assembly on September 17, 1951. The debate which followed confirmed then the hostility of the most traditionalist Congressmen. After four days of discussions, Ambedkar gave an ardent speech where he went as far as to question the morality of Lord Ram and his wife Sita and mentioned that the extra-marital relationship of Krishna and Radha was as indication of the
degraded condition in which Hinduism maintained its women. This brought the most conservative elected members to become even more critical of him. They retorted back through T. Bhargava that Ambedkar wanted this law to legalize his recent union with a Brahmin nurse. He had indeed married, in April 1948, Dr. Sharda Kabir, one of the doctors whom he had consulted, in 1947, when his work at the head of the Drafting Committee had provoked a rapid deterioration of his health. Finally, on September 25, the portion of the Hindu Code Bill concerning marriage and divorce was deformed by amendments and finally buried without Nehru uttering the least of protest. Considering that he had not been supported enough by the Prime Minister, Ambedkar sent him his letter of resignation from his government on 27 September. In a press release published a little later, Ambedkar attributed Nehru’s backtracking to the pressures of the Congress: "I have never seen a case of chief whip so disloyal to the Prime Minister and the Prime Minister so loyal to a disloyal whip…." Actually, Nehru apprehended that the Congress MPs would reject this project en bloc and/or that the President of the Republic, Rajendra Prasad, would really carry out his threat to refuse to promulgate it as a law. It is utterly significant that Ambedkar chose to leave the government of Nehru on the issue of the Hindu Code Bill. It shows indeed that, while he believed in the political path of social reform from above, this approach did not content itself with a simple constitutional frame but implied concrete implementation questioning the logic of the social system. Now, if a large number of the Congressmen approved the constitutional framework of the Indian democracy, they were not prepared to support these tangible advances questioning the social status quo.
Extracted from Christopher Jaffrelot's forthcoming book, "Ambedkar and Untouchability - Analysing and Fighting Caste", to be published by Permanent Black in 2004.
