However, when we come to Art 44, we learn that the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India. Is it anybody’s case that this palpable, perceptible, discernible shift from the mandatory or directory shall strive, further emphasized, in particular strive, to the recommendatory words “shall endeavour to secure…” is just an accident?
Is it also accidental that this provision is part of a set of provisions aiming at parity in treatment of various people? Remember that India was a country where practices like untouchability prevailed, and needed to be addressed. Where even the emphasised mandatory directive provision is not enforceable by any Court, will this suggestive recommendation expression be given so much weight that Courts start requiring the State to do something about a common civil code?
The Supreme Court has observed that even in a statute, “legislative futility is to be ruled out so far as interpretative possibility permits”.
“Endeavour to secure”: What does it mean? The words chosen are not declare, provide, lay down, promulgate, enact or legislate. The intent seems to be that something must be secured in the sense of being obtained. That securing is the obtaining of agreement if there can be persuasion of the type that finds acceptance among classes, religious, social, ethnic, etc., of citizens. The state, it is submitted, must make an effort, it must endeavour to secure: it cannot impose at all.
“Uniform”: what does it mean? The word used is not “one” civil code or an “identical” civil code or even the fashionable “common” civil code. Uniformity suggests similar treatment, coming as it does immediately after provisions pertaining to equality of treatment before the law, of the various classes of citizens. Inasmuch as there is disparity of treatment based on principles of reasonable classification, a differentiation in treatment is sometimes found in the affirmative actions aimed at removing disparities.
In that view of the matter a uniform civil code would mean a body of codified law that ensures that similarly placed persons in particular situations are governed by a law that is applicable across the spectrum of that group. An example: the Transfer of Property Act holds a transfer with a condition repugnant as valid. Transferees can ignore the condition, which is declared to be void. It then creates exceptions for leases and cases where the condition is necessary for the better enjoyment of a portion of adjacent property retained by the transferor. Now is this Act, applicable to all Indians, yet recognising a disparity of treatment between the one who has transferred all his property and the one who has retained part of it, not uniform? Cases abound where it is possible for people to “contract out of” the law’s prescriptions. All of them are legally recognised exceptions, differences, and two persons in the same set of circumstances can, depending on whether they have contracted out or not, end up with disparity of legal results or consequences. This disparity is apparently acceptable, but when Muslims seek to transact regarding personal matters such that consequences for them are different from those of non-Muslim brothers who choose to be governed by any other law (all, mind you Indian laws), that is considered disparity, lack of uniformity, even a hindrance to national integration. Why?
Also, a uniform civil code is the expression used, and not “the same set of laws”: uniformity means consistency, regularity, standardization, homogeny, evenness, equality, sameness: sameness is the quality of being like the other, not being the other. Equality is parity, fairness, equal opportunity, impartiality. The intent seems to be to impress the requirement of equality as is evident from the place Art. 44 finds in the body of the Constitution.
Now, in the context of the recurring references in judgements as well as in political stands, of the expression “common civil code”, one visits Art. 45 and reads that “the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children… Here in place of the mandatory shall strive, and the emphasised shall, in particular, strive, the choice of words is “shall endeavour to provide…”. Now is there not a difference between “secure” and “provide”? Where even emphasised mandatory provisions are not enforceable by Court, and go unnoticed in the face of a deadline of ten years, why have the Hon’ble Courts taken the lead for suggesting action? Is a 45 requirement, with a ten year time frame set, not more urgently in arrears than a 44 “common” civil code which none has as yet started to define or seek opinion on?
Art. 46 says the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes…
The “shall promote” is a return to the imperative style, while the “special care” and the “in particular” tell their own story. Is this without reason? And if not, can the intent of the framers of the Constitution be ignored and its interpretation be left as a hostage to any political posturing? Remember the Constitution was agreed upon, its terms negotiated and agreed upon.
Now, going further, Art. 47 says the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
The mandatory “shall” and the “in particular” show emphasis. Now, will the proposed common civil code declare, considering the “in particular” emphasis, the consuming of intoxicating drinks to be prohibited? If not, we are insulting the Constitution, attempting to interpret it to suit political compulsions rather than first correctly interpreting it and then allowing national life to be guided by those principles? There is no need for pressure on the Muslims: if pressure is required, it is on the honesty and integrity of political thought and policy.
Art. 48 says the State shall endeavour to organise agriculture and animal husbandry … and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows, calves and other milch and draught cattle.
There is much controversy generated over a bill to ban cow slaughter, but the bill was defeated, and not by the Muslims’ vote! Also, it is clear that prohibition thus must be not just of cows but of calves and other cattle. The inclusion of other milch and draught cattle reveals the intent that needs of the country’s animal husbandry requirements had to be ensured as a means of preservation of and improvement of breeds, and agriculture not crippled.
A question recently asked was whether any religion can require animal killing. The answer is yes, Islam does, as a commemoration of the willingness of prophet Ibrahim to sacrifice his son, and a re-dedication to the covenant that one shall be willing to give up what one holds most dear in striving for Allah’s pleasure. Every Sunday sees numerous animal sacrifices around temples too.
Lamenting the allowing of palpable injustice to be suffered, the Court in the case cited above said the role of reformer has to be assumed by the State. Saying palpable injustice should not be suffered, presupposes objective definition of injustice. Injustice to me, however, is not when you perceive it to be so. Injustice to one may not be to another. Is marriage to two women just to both, considering they accept that law as theirs, or is marriage to one and relationship with another, where the law permits one wife, just to the other? Perceptions can vary, obviously, and there are no absolutes.
That a woman in Islam has her evidence given half the weight as that of a man has people crying “injustice”: they are not aware that in Islamic law, the giving of evidence is a duty, not an advantage or a privilege, and the responsibility on a woman is half that of a man, sought to be divided amongst two women as against a single man bearing the same. Why? Well, if a matter is not proved the offence of giving false evidence stands made out and punishment for defamation can be inflicted. The difficulty is people try to make sense out of isolated provisions divorced from the context of their setting, and hence lose sight of the wisdom behind Islamic jurisprudence.
The double share to a male as against a female loses sight of basic factors as for instance it has not been said that a woman’s share is half that of a man, but that a man’s share is twice that of a woman: clearly, to even define the man’s share, first the woman’s would have to stand determined, because the one is twice that of the other. Further, the woman’s share comes without “strings attached”, while the man’s comes with the responsibility of providing for those dependent on him and on the one from whom he has inherited.
The burqa is subject of a lot of criticism: the same voices that condemn the burqa also condemn Western dress. Those criticising the burqa must remember that their voices are raised against a constitutionally guaranteed right to practice one’s religion, and someone of another religion is hardly going to be the one telling me how to practise mine. It bears mention that what is guaranteed is the practice of religion, not just of worship which forms only a part of religion. Muslim women wearing the burqa have become a favourite target for “oppression” comments, while Christian nuns wearing the dress of their religious calling is perfectly acceptable! If I consider celibacy of Brahmacharis, Sanyasins, nuns, priests etc. oppressive, that would be just my private view. An answer from non-Muslims when religious cloaks of nuns are cited to show similarity between the wearing of the burqa and the Nuns’ dress is that nuns are women of God. Surely then, a similar Godly dress worn by Muslim women should not attract hostile comment. Is it the burqa, or is it the fact that be woman inside is a Muslim, that is the causative factor for the hostile comment and the perceived oppression? How do orthodox Hindu and Sikh women cover their heads before elders and in temples, in Gurdwaras?
| 
