The Courts know that reformers play persuasive roles, bringing about a change in perception that leads in turn to change in conduct. They also know that without acceptability, how successfully can personal law be implemented is questionable. Those politicians making noises about a common civil code and pretending to champion the cause of national integration and emancipation of Muslim women have not made any effort to even seek scholarly opinion, leave alone formulate policy, on what any uniform civil code ought to contain. Pseudo-intellectual vanity and populist pretence masquerade in our country as reformist zeal.
Considering Constitutional fiat that provisions among directive principles shall not be enforced by any Court, the question is: Can a Court which cannot enforce a directive principle of State policy, i.e., cannot issue a writ for the securing of a uniform civil code, prod the State to do the same thing suo motu, achieving the same thing indirectly, so to speak? Also, if that be so, should not the prior focus be on those articles with emphasised imperative expressions and set time frames for implementation rather than those where the requirement is only that endeavour be made to secure a result? Would not prohibition, with Art. 47 calling it the State’s primary duty and setting a time frame of ten years) come before any uniform civil code which Art. 44 says is something that the State shall endeavour to secure?
The Court in the case cited quoted with approval Dr. Tahir Mahmood, “in pursuance of secularism the State must stop administering religion-based personal laws”. The approval of the Supreme Court leads one to conclude that the words are in a sense, adopted by the Court as its own.
Now, to “stop administering” is not the same thing as to “do away with” (see Dr. Ambedkar’s speech extract of 2-12-1948 quoted below). One would be excused for wondering whether the State can stop administering religion-based personal laws, and stop there, leaving those desirous of following those laws to devise their own mechanism for the administration thereof, like an arbitral council. There again those of that inclination will face a road-block: arbitration law asserts that in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute in accordance with the substantive law for the time being in force in India (sec. 28 (1) (a), Arbitration &Conciliation Act, 1996).
Then, while Dr. Mahmood on the one hand says “the State must stop administering religion-based personal laws”, on the other he is quoted saying “instead of wasting their energies… to secure an ‘immunity’ for … personal law from the State’s legislative jurisdiction, the Muslims will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India” (emphasis added). It would be immediately apparent that this is actually an argument for the enriching of the proposed common civil code by (obviously) including in it “the true Islamic laws, purged of time-worn and anachronistic interpretations”. Thus the judgement quotes the same voice which simultaneously seeks cessation of administration of religion-based personal laws, and yet argues for the inclusion of those very laws and their engrafting into the common civil code. One would again be excused for asking whether there is not something mutually incompatible in the two positions. The Courts would be administering the very same laws under a different label.
The Court further quotes a report of Pakistan’s Commission on Marriage and Family Laws: In the words of Allama Iqbal, “the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution – a question which will require great intellectual effort, and is sure to be answered in the affirmative.”
If the law of Islam, or personal law of Muslims, evolves, it will have done that, but that evolution will not make it anything other than what it is: the law of Islam, or a religion-based personal law. So will the Courts then desist from administering the provisions of the common civil code to the extent they are based on religion? If so, then is the position that law administered by Courts shall be such as was never a part of any religious law? Following Dr. Mahmood’s words quoted approvingly by the Court, the State would have to remove all law found in Hindu scriptures, including Manu’s laws, Vedic laws, remove all Christian laws, Muslim laws, Sikh, Parsi… and what have you and what remains will comprise … a rather uncommon civil code, one would think.
Art. 25 says (1) subject to public order, morality and health … all persons are equally entitled to … the right freely to profess, practise and propagate religion.
Right to propagate is therefore enshrined. There is nothing to indicate there can be propagation by mode A and not by mode B, for instance, and therefore any law proscribing conversions would be violative of this provision. A welfare state has effectively applied curbs on freedom of conscience! Curtailing one’s right to convert is violation of another’s right to propagate! What is colourable exercise of power?
Art. 25 says nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Thus firstly only such activities as are economic, financial, political or secular and associated with religious practice can be regulated or restricted.
Second, it is noteworthy that the only conclusion can be that there can be political activity associated with religious practice. The words associated with and religious practice would assume importance. What is religious practice can be a subject of lively debate, and it can certainly be argued that the provision covers matters which do not per se comprise religious practices but are only attendant therewith or associated with such practice, and fall within the defined categories of financial, political, economic, or otherwise secular. However, the potential for mischief is there, since even a fund collection drive, even a contribution, would be termed “financial”, and all attempts at organising together termed “political”.
We learn that before 1955, India was the largest country in the world which permitted its great majority of people, Hindus and Muslims, to practice polygamy (unlimited to Hindus and limited to four wives to Muslims). In some parts of India, such as in Lahaul Valley of Himachal Pradesh and among the Thiyyas of South Malabar, polyandry prevails and was recognised under custom. Chota Todas as a community in Nagaland are said to have polyandry prevailing.
In Goa, Daman and Diu, during the Portuguese rule, a Hindu husband was permitted to take a second wife during the lifetime of the first wife, in some specified places and in some circumstances, with the consent of his first wife. That continues to be the law in those territories.
Critique of Modern Hindu Law, Derrett : “carefully regulated bigamy, i.e., plural marriages, in cases of infertility, mental instability of the wife, and other cases where the good sense and humanity of the husband and his family recoils from divorcing her or annulling the marriage, where she is important or very sick, would not only be in accord with traditional Hindu religious sentiments and practice but also much more realistic.”
Paras Diwan, Customary Law, Chandigarh, 1991: “In several castes and sub-castes, divorce under customs has prevailed from the early Hindu period. Since customs derogatory to sacred law are allowed to prevail (Collector of Madhura vs Muto Ramlalinga [(1868) 12 MIA 397]), customary divorces have been recognised. Customary modes of divorce are easy. In some cases marriage can be dissolved by mutual consent. Very little formalities for dissolving marriages are needed. In most cases, it is purely a private act of the parties. In some communities, some forum is required. It is either a gram panchayath, community panchayath or family council. One wonders: any problem if it is a local Qazi or the husband himself? Or if the husband delegates that power to his wife? Or is the problem something extraneous to the merit of the matter, tied up with anti-Muslim anti-Minority mind-sets and prejudices?
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