Wednesday, February 16, 2011

Why No Uniform Civil Code ? - Supreme Court to the Centre

The Supreme Court has again pulled up the government for its failure to overhaul personal laws of the minority communities...
The Supreme Court has again pulled up the government for its failure to overhaul personal laws of the minority communities, saying that it was a reflection on their secular credentials.

The court also said on Tuesday that government's attempts to reform personal laws don't go beyond Hindus who have been more tolerant of such initiatives.

"The Hindu community has been tolerant to these statutory interventions. But there appears a lack of secular commitment as it has not happened for other religions."

Justices Dalveer Bhandari and A K Ganguly made the observation while hearing petitions filed by the National Commission for Women and its Delhi chapter. The petitioners have sought formulation of a uniform marriageable age and complained that different stipulations in as many statutes had created confusion.

Additional solicitor general Indira Jaising explained the differences in age limits provided in statutes, saying that these were meant to achieve diverse social objectives. "Hence, there could not be a uniform age. Though the government feels that girls above 16 years should be said to have attained the age of consent to sexual relation and hence could marry, the formal age of marriage would stay at 18 years," argued the ASG.

When asked by the bench and NCW counsel Aparna Bhat about the glaring discrepancies between different laws and how government plans to reconcile them, Jaising said: "Hindu laws is one of the finest laws, a saying that has to be taken with a pinch of salt. It provides for all oppression and also the escape route. The problem with the Hindu law is that legislators have tried to chip away little by little but there is no overhauling of it."

Jaising argued that though there can be no uniform marriage age, other laws including the Hindu Marriage Act, needed amendments to make them conform to the age of marriage provided under the Prohibition of Child Marriage Act, 2006.

She said under the 2006 law, marriages in which the girls are below 16 years are void and those in which they are between 16-18 years are voidable.

In the last two decades, the Supreme Court had stressed time and again the importance of enacting a Uniform Civil Code (UCC) as advised by the Constitution.

Between the Shah Bano judgment in 1985, Sarla Mudgal judgment (1995) and John Vallamatom verdict in 2003, the court had thrice stressed the need for enacting a UCC, saying it would help forge national integration and remove dissimilarities.

Provision for UCC is incorporated in Article 44 under the Directive Principles chapter of the Constitution, which says, "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

The Directive Principles, despite being termed by the Constitution itself as 'fundamental in the governance of the country' and that 'it shall be the duty of the state to apply these principles in making laws', are not enforceable in a court of law.

The Supreme Court of India has pulled up the government for its failure to overhaul personal laws of the minority communities. The hon’ble court has made a categorical statement that the government‘s attempts to reform personal laws don’t go beyond Hindus. The Supreme Court bench has observed that:

The Hindu community has been tolerant to these statutory interventions. But there appears lack of secular commitment as it has not happened for other religions.
In 1976 the word secular was added to the preamble of the Indian constitution to emphasize that no particular religion in the state will receive any state patronage whatsoever and no citizen in the state will have any preferential treatment or will be discriminated against simply on the ground that he or she professes a particular form of religion.
India is a land of diverse religions. Hindus, Buddhists, Sikhs, Jains, Christians, Muslims, Parsees all together form the nation. Unity in diversity is the core feature of India. To make the country really a secular state there needs to be one common law for all communities. The big question is why even after decades of independence governments have failed to adopt a uniform civil code which would be a stepping stone to the pinnacle of secularism.
From time to time personal laws of Hindus have been tweaked sparing personal laws of minorities. This goes against the spirit of equality in the democratic set up of the country. Going by the tenets of secularism, the country is committed to
• Equality as incorporated in Article 14
• Prohibition against discrimination on the grounds of religion, caste etc, as incorporated in Article 15 and 16
• Freedom of speech and expression and all other important freedoms of all citizens are conferred under Article 19 and 21
• Right to practice religion is conferred under Article 25 and 28
• Fundamental duty of the state to enact uniform civil code treating all citizens as equal, is imposed by Article 44

Article 44 of Indian constitution specifies that the state shall endeavour to secure the citizens a common civil code throughout the country. The objective is to effect integration of India by bringing all communities into a common fold which is at present governed by personal laws of different communities based on their religion.
Why common civil code is opposed by the minorities? Minority rights have gained greater visibility in India post independence. When India became independent the minority communities became apprehensive about their identity. Muslims being the dominant minority community have their own Islamic law code of shariat applicable to the Muslims in India in their personal affairs. Muslim personal laws are protected by a private body All India Muslim Personal Law Board (AIMPLB). While Muslims are strongly opposed to common civil code, Parsees and Christians too have their own personal laws to defend their communities against perceived threat from majority community. A common civil code will override only those personal laws which do not form the essence of any religion. The common areas covered by a civil code include laws to acquisition and administration of property, marriage, divorce, will and adoption.
In spite of freedom to follow their personal laws, the minority communities are not contended they feel discriminated. Even the dominant Muslim community has several grievances. It is felt by the community that they lag behind in the area of education because of economic hardships and discrimination. No special efforts have been made to fulfil the needs of Muslims which belong to the lower strata of society. They may have grievances but they themselves are responsible for their plight. Their fundamentalist approach has kept them away from the mainstream. The recent criticism of vastanvi for talking about equal opportunity for all in the state of Gujrat is a glaring example of the fundamentalist attitude of Muslim leaders. Another factor that keeps the minority communities strongly identifiable is vote bank politics of netas, they would never entertain the idea of bringing the minorities under one secular umbrella which goes against their vested interests. For these reasons consensus on common civil code is hard to come.

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