Rise
of Personal Laws
·
Need of religion-
There is the need of religion in this society because in the absence of
religion human society will turn into a wild life sanctuary. Religions are made
by the society itself to regulate the life cycle in a peaceful and harmonious
manner. Initially there was the thinking that if a person breaks his religion
or does any wrong act then he will be cursed. But at the present stage as the
things went on changing the thinking and mentality of the society also changed.
People came out from the mentality of bless and curse; and went with the rhythm
of changing time. But today also some religious values are poured in the human
minds from their childhood which stops them to do wrong acts at a certain
stage. And personal laws are made by the society to stop those people who are
not following the religious values and to help those who are suffering in some
or the other manner due to the people who are not following the religious
values and laws.
On this account each religion made it
own personal law to regulate the people of that religion. Though there are many
ancient sources of such laws but one of them is ‘custom’ which is again made by
the society.
·
Role of religion
in the Indian society is to unite and integrate the thoughts of the people. To
bring the country together and make the country move towards the achievement of
a goal which is beneficial for the mankind.
But
the present situation is just opposite. People are fighting amongst each-other
to prove that their religion is better of all. Politicians are also using the
same policy which the Britishers used i.e., Divide and Rule. They are making
their votes by supporting only one religion or caste people and dividing the
society on the grounds of religion, caste and creed.
Freedom of religion
Freedom of religion is mentioned from Article 25 to 28 of
the Indian Constitution. India is a multi religious state. Beside Hindu there
are Muslims, Christians, Sikhs and others.
The constitution makers promoted the creation of secular Indi. The State
neither promotes nor interferes with any religion. The freedom of religion is
available to citizens as well as the aliens living in India. The constitution
confers the freedom of conscience and belief. It declares that all people are
free to profess, practice and propagate any religion. But, there is a
restriction attached to it, that this right will be exercised subject to the
norms of public order, morality and health.
The State may make laws for throwing open Hindu religious
institutions to all classes and sections of Hindus including Sikhs, Jains and
Buddhists. The wearing and carrying of Kirpan is included in the profession of
Sikh religion.
It also permits every religious group, the right to manage
its own affairs in matters of religion. Subject to public order and morality,
every religious group has the right to establish and maintain institutions for
religious and charitable purposes. Each religious group is also free to
purchase and manage immovable property and administer such property in
accordance with law.
All the rights and freedoms relation to religion and
conscience are not absolute. Such rights can be restricted on the grounds of
public order, morality and health. The State shall not impose restriction
arbitrarily and excessively.
Concept and Necessity of secularism
Secularism is a term which denotes that there shall be no
discrimination amongst the people on the grounds caste and creed. A secular
state is a state which does not consider any religion as a state religion. And
where every religion is treated equally.
It is necessary that law should be divided from religion.
With the enactment of a uniform civil code, secularism will be strengthened;
much of the present- day separation and divisiveness between the various
religious groups in the country will disappear, and India will emerge as much
cohesive and integrated nation.
In Keshavananda Bharti v. State of
Kerla[1],
the full court inscribed secularism as an essential feature of the basic
structure of the Indian Constitution; in 1957 Justice Khanna, in Indira
Gandhi v. Raj Narain[2]
reinforced this view. The Supreme Court observed that by secularism it
meant that the state shall not discriminate any citizen on the ground of
religion and state shall have no religion of its own and all persons shall be
equally entitled to the freedom of conscience and the right freely to profess,
practice and propagate religion. In S.R.Bommai v. Union of India[3],
Supreme Court held that secularism is the basic feature of the constitution.
UNIFORM CIVIL CODE
Uniform Civil Code is mentioned in Article 44 of the Indian
Constitution which says that the State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India. This article
was entered in the directive principles of state policy of the Indian
Constitution with a view to achieve uniformity of law, its secularization and
to make it equitable and non discriminatory.
The secular activities, such as inherence covered by
personal law should be separated form that. A uniform law should be prepared
and made applicable to all; this will promote national unity. Earlier it was
pointed out that firstly, as uniform civil code would infringe the fundamental
right of freedom of religion as mentioned in Article 25 and secondly, it would
amount to a tyranny to the minority. The first point is misconceived because
secular activity associated with religious practice is exempted from this
guarantee. And regarding second point,
nowhere in the advance Muslim countries has the personal laws of each minority
been recognied as so sacrosanct and to prevent the enactment of a civil code.
In Turkey and Egypt no minority is permitted to have such right. If we look to
the countries in Europe which have a civil code, everyone goes there from any
part of the world and every person has to follow civil code. It is not felt to
be tyrannical to the minority.
To get national unity, we have to tackle many important
factors which still offer danger to our national consolidation. These factors
can be the discrimination on the ground of different religion or on the ground
of different sexes. And these discriminations can only be tackled by the help
of Uniform Civil Code; though it is a sensitive issue on the part of religion.
·
Merits of Uniform Civil
Code
If
uniform civil code is enacted and enforced:
a) It
would help and accelerate national integration;
b) Overlapping
provisions of la could be avoided;
c) Litigation
due to personal laws would decrease;
d) Sense
of oneness and national spirit would be roused, and
e) The
country would emerge with new force and power to face any odds finally defeating
the communal and the diversionist forces.
Many countries like Israel, Japan, France and Russia are
strong today because of their oneness which we have yet to develop and
propagate.
Uniform civil code will reduce the diversified personal
laws, simplify the legal system of the country and make the society more
heterogeneous. It will de- link the laws from religion which is a desirable
objective to achieve in a secular and socialist pattern of society. It will
create national identity. Uniform civil code will contain uniform provisions
applicable to everyone on social justice and gender equality in family matters.
·
Judicial Approach
The Supreme Court for the first time, directed the Parliament
to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah
Bano Begum,[4]
popularly known as the Shah Bano case, In this case, a penurious Muslim women
claimed for maintenance from her husband under Section 125 of the Code of
Criminal Procedure after she was given triple talaq from him. The Supreme Court
held that the Muslim woman have a right to get maintenance from her husband
under Section 125. The Court also held that Article 44 of the Constitution has
remained a dead letter. The then Chief Justice of India Y. V. Chandrachud
observed that,
"A common civil code will help the cause of national integration by removing
disparate loyalties to law which have conflicting ideologies"
After this decision, nationwide discussions, meetings, and agitation were
held. The then Rajiv Gandhi led Government overturned the Shah Bano case
decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986
which curtailed the right of a Muslim woman for maintenance under Section 125
of the Code of criminal Procedure. The explanation given for implementing this
Act was that the Supreme Court had merely made an observation for enacting the
UCC; not binding on the government or the Parliament and that there should be
no interference with the personal laws unless the demand comes from within.
In Mary Roy v. State of Kerala,[5]
the question argued before the Supreme Court was that certain provisions of the
Travancore Christian Succession Act, 1916, were unconstitutional under Art. 14
Under these provisions, on the death of an intestate, his widow was entitled to
have only a life interest terminable at her death or remarriage and his
daughter. It was also argued that the Travancore Act had been superseded by the
Indian Succession Act, 1925. The Supreme Court avoided examining the question
whether gender inequality in matters of succession and inheritance violated
Art.14, but , nevertheless, ruled that the Travancore Act had been superseded
by the Indian Succession Act Mary Roy has been characterized as a “momentous”
decision in the direction of ensuring gender equality in the matter of
succession.
Finally, the Supreme Court has issued a directive to the Union of India
in Sarla Mudgal v. Union of India,[6]
to “endeavour”
framing a Uniform Civil Code and report to it by August, 1996 the steps taken.
The Supreme Court opined that: “Those who preferred to remain in India after
the partition fully knew that the Indian leaders did not believe in two- nation
or three ""nation theory and that in the Indian Republic there was to
be only one nation- and no community could claim to remain a separate entity on
the basis of religion”.
It is, however, to be noted what the Supreme Court expressed in Lily
Thomas case.[7]
The Court said that the directives as detailed in Part IV of the
Constitution are not enforceable in courts as they do not create any
justifiable rights in favour of any person. The Supreme Court has no power to
give directions for enforcement of the Directive Principles. Therefore to allay
all apprehensions, it is reiterated that the Supreme Court had not issued any
directions for the codification of a Common Civil Code.
The Supreme Court’s latest reminder to the government of its
Constitutional obligations to enact a UCC came in July 2003, when a Christian
priest knocked the doors of the Court challenging the Constitutional validity
of Section 118 of the Indian Succession Act. The priest from Kerala, John
Vallamatton filed a writ petition in the year 1997 stating the Section 118 of
the said Act was discriminatory against the Christians as it imposes
unreasonable restrictions on their donation of property for religious or
charitable purpose by will. The bench comprising of Chief justice of India
V.N.Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down the
Section declaring it to be unconstitutional. Chief justice Khare stated that,
"We would like to State that Article 44 provides that the State
shall endeavour to secure for all citizens a uniform civil code throughout the
territory of India it is a matter of great regrets that Article 44 of the
Constitution has been given effect to. Parliament is still to step in for
framing a common civil code in the country. A common civil code will help the
cause of national integration by removing the contradictions based on
ideologies".
Thus, as seen above, the apex court has on several instances directed the
government of realize the Directive Principle enshrined in our Constitution and
the urgency to do so can be inferred from the same.
Explanation on personal laws
The law which deals with the matters pertaining to any
person or any family conflicts regarding marriage, divorce, inheritance,
maintenance, guardianship, etc can be called as personal laws or family laws.
India is a multiplicity of personal laws. The Christians have their
Christians Marriage Act 1872, the Indian Divorce Act, 1869 and the Indian
Succession Act, 1925. The Jews have their unmodified customary marriage law and
in their succession matters they are governed by the Succession Act of 1925.
The Parsis have their own Parsi Marriage and Divorce Act, 1936, and their own
separate law of inheritance contained in the Succession Act which is somewhat
different from the rest of the Succession Act. Hindus and Muslims have their
own separate different from the rest of the Succession Act. Hindus and Muslims
have their own separate persona laws. Hindus law has by and large been
secularized and modernized by statutory enactments. On the other hand Muslim
law is still primarily unmodified and traditional its content and approach.
Secularism
V. Uniform Civil Code
The spine of controversy revolving around UCC has been secularism and the
freedom of religion enumerated in the Constitution of India. The Preamble of
the Constitution states that India is a “secular democratic republic”. This means that there
is no State religion. A secular State shall not discriminate against anyone on
the ground of religion. A State is only concerned with the relation between man
and man. It is not concerned with the relation of man with God. It does not
mean allowing all religions to be practiced. It means that religion should not interfere
with the mundane life of an individual.
In S.R. Bommai v. Union of India[8],
as per Justice Jeevan Reddy, it was held that "religion is the matter of
individual faith and cannot be mixed with secular activities; Secular
activities can be regulated by the State by enacting a law”.
In India, there exist a concept of “positive secularism” as distinguished
from doctrine of secularism accepted by America and some European states i.e.
there is a wall of separation between religion and State. In India, positive
secularism separates spiritualism with individual faith.
Article 25 and 26 guarantee right to freedom of religion, Article 25
guarantees to every person the freedom of conscience and the right to profess,
practice and propagate religion. But this right is subject to public order,
morality and health and to the other provisions of Part III the Constitution,
Article 25 also empowers the State to regulate or restrict any economic,
financial, political or other secular activity, which may be associated with
religious practice and also to provide for social welfare and reforms. The
protection of Articles 25 and 26 is not limited to matters of doctrine of
belief. It extends to acts done in pursuance of religion and, therefore,
contains a guarantee for ritual and observations, ceremonies and modes of
worship, which are the integral parts of religion.
UCC is not opposed to secularism or will not violate Article 25 and 26.
Article 44 is base on the concept that there is no necessary connection between
religion and personal aw in a civilized society. Marriage, succession and like
matters are of secular nature and, therefore, law can regulate them. No
religion permits deliberate distortion. The UCC will not and shall not result
in interference of one's religious beliefs relating, mainly to maintenance,
succession and inheritance. This means that under the UCC a Hindu will not be
compelled to perform a “Nikah” or a Muslim be forced to carry out “Saptapadi”.
But in matters of inheritance, right to property, maintenance and succession,
there will be a common law. The whole debate can be summed up by the judgment
given by Justice R.M. Sahai. He said:
"Ours is a secular democratic republic. Freedom of religion is the
core of our culture. Even the slightest of deviation shakes the social fibre.
But religious practices, violative of human rights and dignity and sacerdotal
suffocation of essentially civil and material freedom are not autonomy but
oppression. Therefore, a unified code is imperative, both for protection of the
oppressed and for promotion of national unity and solidarity."
Conclusion
After such a deliberate discussion it can be said that the mere three
words and the nation breaks into hysterical jubilation and frantic wailing.
This uniform civil code has social, political, and religious aspect. The UCC
would carve a balance between protection of fundamental rights and religious dogmas
of individuals. It should be a code, which is just and proper according to a
man of ordinary prudence, without any bias with regards to religious and
political considerations.
But to conclude, I would like to say that citizens belonging to different
religions and denominations follow different property and matrimonial laws
which is not only affront to the nation's unity, but also makes one wonder
whether we are sovereign, secular, republic or loose confederation of feudal
states, where people live at the whims and fancies of Mullahs, Bishops and Pandits.
I strongly support the crusade for the implementation of the UCC and
homogenizing the personal laws. I support it, not because of any bias, but
because it is the need of the hour. It is the high time that India had a
uniform law dealing with marriage, divorce, succession, inheritance, and
maintenance.
