Non-discrimination on the basis of religion is the precondition of ‘liberal secular democracy’. In India, this very principle is thwarted in the name of secularism. On May 12, 2015 the Supreme Court while questioning why a Christian couple has to live separately for two years to seek divorce by mutual consent when the period is just one year for couples from other communities, once again underlined the need for Common Civil Code (CCC) in the country. A bench of Justices Vikramajit Sen and AM Sapre while examining the validity of a 146-years old provision said one ‘secular law’ should be made applicable to all people cutting across communities and religions all over the country. Problem in our country is that whenever there is a discussion about Common Civil Code a section of the people start confusing religion with the personal laws. The debate on Uniform Civil Code needs to be brought out of Secular-Communal discourse and deliberate it with the ‘gender justice’ perspective. The Supreme Court once again passing clear remarks on the need of uniform laws for different communities for governing matrimonial issues has opened up possibilities of formulating Uniform Civil Code.
The Supreme Court has once again asked the Government to implement and bring in a Uniform Civil Code (UCC). Justice Vikramajit Sen was reported to have indicated his exasperation with the Government for failing consistently in this endeavour. As usual, there have been the expected reactions from various quarters including those who want UCC and those who are opposed to it. Interestingly, in the said discussion about the UCC the most important reason for the implementation of UCC in the country is overlooked. Besides the obvious fact that the UCC is a mandate of the Constitution and a part of the Directive Principles of State Policy, UCC is essential today if India is to step up as a modern nation state.
Property today has become the kernel of the edifice of the modern state. Even in India where the previous governments had taken away the right to property from the chapter of Fundamental Rights and incorporated them as mere constitutional rights, the attempt of the courts have been to bring back the right to property as a human right. With the right to property comes the concomitant regulation of the disposition of property. The disposition of property has to be predictable so that others can be aware of what the actual title of the property is. In India with numerous succession laws and with a variety of methods of succession, the property regime is extremely fragmented. In most cases such an act of succession is traced to the scriptures or religious injunctions. This leads to an argument that any interference with family law or the law of succession is effectively a violation of the right to religion of the person concerned.
This is an obvious and fallacious argument. Everybody knows that historically laws of succession have always been governed by the rules and regulations imposed by the state. In India a person tracing the history of property would immediately be aware that succession law has been changed quite extensively both during the time of the Moghuls as well as the British. In fact, it is very well known that the British interfered very extensively in family law. In fact, so extensive was the intervention of the British in family law that the same was referred to as Anglo Hindu Law and Anglo Mohammedan Law. It is these laws that we actually follow in the present date.
“This attitude of mind perpetuated under the British rule, that personal law is part of religion, has been fostered by the British and by British courts. We must, therefore, outgrow it.” —K M Munshi
“There ought not to be communal laws of inheritance and communal laws of marriage but there are to be a Common Civil Code applying to all sections, all communities, in fact applying to citizens without discrimination as to religion, caste or creed, I am certainly one with him.”
“One of the factors that have 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.”
“I do not believe that a Uniform Civil Code will be a threat to religious belief. After all, Muslims reside in Europe and America too, where they don’t have the benefit of their personal laws. Forget those places, even a predominately Muslim country like Turkey repealed Islamic personal laws and replaced them with Swiss laws. Even in the Islamic citadels i.e. the Arabic countries, personal laws are different in individual Arab countries.”
It is also very well known fact that at the time of the coming of the British large parts of India were governed by customary laws and not communal laws. No doubt that succession laws were extremely fragmented throughout India at the time of the coming of the British but they were also accompanied by a deep influence of tradition and culture of the people. In many ways it is the British who invented communal family law or religion-based family law in order to make sense of Indian family law. The process of modernisation and therefore homogenisation of Indian family law was started along with the time when common law courts administered by the British started being imposed on India. Though some attribute various different motives to the British for starting off this process including the policy of divide and rule, the primary objective, it seems, was to start of the process of creating a uniform method of succession and disposition of property.
State religion should supersede the personal religion
Lately, a Delhi based Christian Albert Anthony questioned on the separation period before which a petition for the divorce by mutual consent can be filed. It is to be noted that under Section 28 of Special Marriage Act, 1954, Section 13-B of The Hindu Marriage Act, 1955 and Section 32 B of Parsi Marriage and Divorce Act, 1936, the minimum separation period required to file for divorce petition by mutual consent is one year whereas the same period for Christians is two years. The petitioner pleaded on the ground that this amounted to ‘hostile discrimination’ and reflected a ‘bias’ against Christians. This question is the result of the infirmity in laws. The demand made by the petitioner is completely valid and should be accepted as this is the question of uniformity of laws. This can be termed as discrimination towards Christian community and should be rectified accordingly, as it is well said “Law should be one for all”.
The British, motivated as they were by clear commercial incentives and by colonial motives to extract the maximum possible from the colony, realised that the fragmentation of the laws to disposition of property because of the varied methods of succession was the biggest hurdle in the creation of a modern economy. The project however got mired in politics and was dropped after the War of Independence in 1857, only to be picked up again by the British in the 1930s as a method of divide and rule. Today, when we are 70 years, after Independence and on the cusp of great change both in our society and our economy, it is extremely important that we disassociate the linkages of laws of succession to the right to religion in this country. Formulating an independent and Uniform Civil Code for the regulation of succession and disposition of property would be the keystone of the arch of a modern economy in the country.
The impulse of creating a modern forward-looking society also requires in many ways, bringing laws governing family relations out of the confines of religion. It is in many ways linked to the process of modernisation of the society itself. In any case it is also intricately linked with creating a modern progressive society. In order to create a society which keeps equality and non-discrimination as the fundamental basis, it is extremely important that there should be uniformity in family laws. In order to facilitate this process there is a requirement of creating a legal structure which would conform to the mandates of fundamental rights and progressive liberal values, which are ingrained in our Constitution.
The continuance of archaic laws contrary to the spirit of the Constitution does not make sense after 70 years of Independence and nearly 67 years after the coming into effect of the Constitution. The process of the creation of an UCC has to be looked into under the above-mentioned circumstances. The times of assertion of the right to discriminate against women, conduct child marriages, justify bigamy on the basis of religious instruction and scriptural injunctions have long passed. In the age of the internet, instant communication and growing uniformity in values, the argument that any discrimination whether based on sex, caste or creed is mandated by tradition and faith just cannot hold water. A modern state requires a modern society which is open and which is willing to accept change and move with the times. It also requires a society where one’s religion and faith does not dictate one's legal regime.
The Supreme Court has on various occasions discussed the matter about the formation of a UCC. It is interesting to note that the UCC was on the agenda of every Leftist legal intellectual from Independence till at least the mid-1980s. The UCC was held out as to be the panacea of all legal problems in the area of family law. However, subsequent to the spectacular backlash in the Shah Bano judgement there was a tremendous back-pedalling on the issue by the entire Left liberal intellectual spectrum. On the present date if anyone even mentions the UCC, she is typecasted as a communal person. In fact, so skewed has the debate become today that the single biggest step for harmonisation of Indian society that is the UCC which had been a part of the progressive Left liberal project and had found its way into the Constitution against the wishes of Hindu traditionalists has become synonymous amongst certain sections with majoritarianism.
The courts, however, which face the problem in application of law across the Indian society and because of the nature of their work, have to see beyond political rhetoric, have been consistent in their suggestions to the government to bring out a UCC. The UCC which is envisaged both by the courts and by progressive realists in the country is one which will not have any affiliation to any religious scripture and would be a standard mean which would be in conformance to the values of the Constitution.
Undoubtedly, the project of a UCC would also face objections from religious traditionalists who may object to modernisation as well as codification of areas of law which they perceive to be their bastion and in whose interpretation they have a wholly inordinate amount of power. Objections to the UCC may also come from post-modernists who are dismissive of the power of codification and statutes to change values in society and perceive the attempted codification and modernisation as an intervention of the state too far. However the UCC is extremely important for the purposes of creating a progressive and a cohesive society.
The obvious question, which arises is where does this leave religion and faith? In terms of the Constitution and Supreme Court judgements, the test of religion and faith is whether a certain scriptural injunction is an essential part of the faith. Family, law of marriage and succession can in no way be construed to be so essential to the religion of faith that if they are not complied with, the faith cannot be followed. Therefore, laws of marriage, succession and other family laws can rightly be regulated by the state in exercise of its sovereign legislative power.
Internationally, modernisation has gone hand in hand with the creation of uniformity in marriage and succession. Whether it is in Europe, the United States of America or China a Uniform Civil Law has been the cornerstone of a modern society. Needless to say, our traditionalists, when they move to these jurisdictions are surprisingly quiet about their right to maintain their own family laws. It is also a fact that UCC existed both in the French enclaves and Goa and continues to exist till date without protest.
The present system, which we follow today of restricting family laws to religious communities is a hangover of the “milat” system, which was invented in the Ottoman Empire and used extensively in various states which replicated that model including Moghul India. The British when they came to India, after the initial years when they changed personal laws, adopted and replicated this system. Over a period of time these colonial laws became synonymous with communal family laws and thereafter a retrospective justification of these laws being essentially religious came to be accepted as a given truth. So much so that the Bombay High Court in Narasu Appa Mali’s Case held that family law could not even be tested on the touchstone of Fundamental Rights. This logic sadly has subsequently been even upheld by the Supreme Court. This has given rise to the impression that family law, however ancient and regressive it may be, is cast in stone in India. It would be apparent to anyone reading the Constituent Assembly Debates that the Constitution framers did not perceive it to be so. It is also apparent that regressive and discriminatory laws have no position and place in today’s society with entrenched Fundamental and Human Rights.
It is high time that we approach the debate about the Uniform Civil Code afresh without the blinkers of religion. That any change in family law of certain minority communities is a threat to “Secularism” is a futile and empty debate. For a truly prosperous, cohesive, progressive India that is Bharat, we need a comprehensive Uniform Civil Code. Not only would it be in consonance with Fundamental Rights and Directive Principles of State Policy but it would go a long way of excluding religion from public life, or in other words, bringing in true Secularism.
Vikramjit Banerjee (The writer is advocate, Supreme Court of India)