‘Uniform Civil Code prevents people from being forced to follow their religions, allows choice’: Harish Salve

Senior Advocate Harish Salve has said that Uniform Civil Code (UCC) prevents people from being forced to follow their religion, not from following their faith. He argued that the UCC is not against diversity but against compelled diversity, stating that diversity should sprint from the heart.

“The Uniform Civil Code doesn’t prevent you from following your own religion, the Uniform Civil Code prevents the Indian citizen from being forced to follow his own religion,” he said.

He gave an example of a case he was arguing about whether a philanthropic Muslim can register a Trust. The Bombay Waqf Board opposed a Muslim creating a Trust, arguing that he cannot as he is a Muslim and it has to be a Waqf. “If tomorrow the law allows Muslims to create a Trust, does it mean that a devout Muslim cannot create a Waqf? Of course, he can,” Salve said in an interview.

Salve further said that in most countries, the law of inheritance is the civil law based on general equity. However, some solicitors in the United Kingdom advertise that they can make a Sharia-compliant Will for their clients, Salve said. He said, “..which means you have a freedom to dispose of your property as you like, but if you are a devout Muslim and want to confirm to the Sharia, we will write your Will in a way that it follows the Muslim Law. Will the Uniform Civil Code allow that? Of course, you can write any Will you like.”

When asked about why other advocates like Salman Khurshid and Kapil Sibal argue that UCC is against the constitutional principles, Salve said, “The Constitution says that the government must recognize a person’s right to live in accordance with his own religion. But it also recognizes freedom of conscience. Does the UCC take it away? No, it doesn’t.”

He added, “If you are a Catholic and you are steeped in the belief that Catholics do not divorce and you are in a bad marriage, the law allows you to divorce, you will not divorce. You will go to the Church and the Priest will say, don’t divorce. Do you want to follow the priest and say I will not divorce? Don’t divorce. If you say I am not going to be under the yoke of my customary law, I want to reach out and divorce, you will do it.”

Harish Salve further said that he knew some eminent Muslims who registered their marriage to bring it out of the Muslim customary law and under civil law. He claims that the UCC will do away with the need to do that, allowing individuals to have the freedom to choose between religious law and civil law.

Salve argues that Gandhi and Ambedkar wanted uniform civil laws because it is freedom. He contends that religions have historically disempowered women and that UCC would empower them. “This is empowering those who do not want to be told what to do by the heads of their religion,” Salve said, claiming that UCC does not take away anyone’s right to follow their religion.

He further said that the draft of the uniform civil code may say that provisions of the Special Marriage Act and the Indian Succession Act apply to all Indians.

About Hindus losing the privilege of Hindu Undivided Family (HUF) if UCC comes into force, Salve argued that the British enacting the Married Woman’s Right To Property Act and 1956 amendment, which states if a Hindu dies and he has a daughter, his properties go by succession and not survivorship, marked the “end of the HUF.” The Senior Advocate said that HUF now exists to give benefits for tax purposes, which is not a legitimate concern from a Constitutional Law perspective.

He also said that some Hindu customs were as oppressive as other religions and had undergone significant reforms, citing an example of Sati. He said, “There were Hindus who seriously believed in Sati. Reformed that, because we said in modern society this thing has no place…. and when the Sati law was enforced, you saw the rumpus which happened. It’s not that the Hindu Customs have not been reformed. The amendments made about a decade ago to the Hindu Succession Act almost put an end to the HUF.”

“As a Lawyer, I am telling you, this is the biggest myth which is being perpetrated that the Hindus have given themselves some benefit that the Muslims haven’t,” he said in the context of HUF.

About the UCC being anti-minority, Salve said, “I am a minority community. I am Christian. Why is it against me? If I want to follow the Christian rules of marriage and divorce and inheritance can I? Of course, I can. I don’t want to.”

He further said that the issue of polygamy is troublesome in Islam. He said that he is not an Islamic scholar, but it doesn’t give a blanket charter to have four wives. He said, “If you put that to one side, what prevents you from following the Quran? The Quran says don’t do certain things or the Quran says do certain things, you can do all that because what the Uniform Civil Code gives you is the freedom to follow that.” He further said that if you accept that Muslim women also have a right to divorce under Khula, then UCC merely recognises the right, and thus it cannot be termed anti-minority.

On the topic of matriarchal succession, Salve said that despite UCC, people can have matriarchal succession through Will. “What prevents me from saying everything I own will go to my wife and I will leave it to my wife to make a Will of how she wants to distribute the property. Then that becomes matriarchal. So that’s matriarchal, but that is by my choice. Not because I am born somewhere and I hate it, but I have no choice,” he said.

He said, responding to arguments that UCC would end diversity, “Compelled diversity should be ended. Diversity should spring from the heart. The strength of our diversity lies in all of us wanting to do our own thing and yet living together and having fun. No law compels us to celebrate Diwali if you are a Christian or celebrate Christmas if you are a Hindu, and yet we do it with great gusto. That is our diversity.” He said that when someone starts telling you, what you should or should not do, that is the end of freedom of conscience.