Such has been the importance of customary divorces in Hindu law that even after the reform and codification of Hindu law of Marriages, the customary divorces continue to be recognised (sec. 29 (2) Hindu Marriage Act, 1955). Some Hindus have a system where a gram panchayath sits and issues a divorce declaration awarding also “compensation” to the woman and the divorce is complete. Compare this with the Islamic “and for divorced women, fair provision on a reasonable scale” (quoted also in Shah Bano’s case). Are those Hindus following Muslim personal Law?
Now, will all these diverse laws be abrogated? Or will we have a hybrid fabricated by engrafting or transplanting specific provisions of each on to the intended matrix of the total effort? What parts of which will be accepted by whom, subject to what safeguards? Has any exercise been carried out, or even attempted, to ascertain these basic aspects of what the diversities are and in which areas of law, look at possible variants that might find acceptability of any degree amongst at least relatively large parts of the religious spectrum of groups, denominations, sub-denominations, tribes, castes, etc.?
Even among the mainstream Hindus we have the two large schools, Dayabhaga and Mitakshara, which differ hugely in the inheritance provisions, the former being more like the Muslims’ law of inheritance in so far as the point at which a person acquires rights in property is concerned.
In later judgements the Supreme Court was pleased to voice another view. In Lily Thomas & others vs. Union of India & others [2000 (6) SCC 224], the Supreme Court pointed out (head note H and paragraphs nos. 41 through 44) that in another decision, namely, Pannalal Bansilal Pitti vs State of A.P. the Court indicated that enactment of a uniform law, through desirable, may be counterproductive, observing that in the counter-affidavit and supplementary affidavit on behalf of the Government of India in the case of Sarla Mudgal, President, Kalyani vs. Union of India, (1995) 3 SCC 635 it is stated that the Government would take steps to make a uniform code only if the communities which desire such a Code approach the Government and take the initiative themselves in the matter. The Court pointed out that the Government had also annexed a copy of the speech of Dr. B. R. Ambedkar in the Constituent assembly on 2-12-1948 at the time of making of the Constitution. Dr Ambedkar stated, quoting from the Union of India’s affidavit, “I should also like to point out that all the State is claiming in this matter is the power to legislate. There is no obligation upon the State to do away with personal laws. … Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other Community in India.” Now, if you do not do away with personal laws, then what are they for if not to be applied and implemented?
The Court reassuringly added that the affidavits and the statement made on behalf of the Union of India should clearly dispel notions harboured by the Jamiat-e-Ulema-e-Hind and the Muslim Personal Law Board. The Court added that the Court had not in Sarla Mudgal’s case issued any direction (emphasis supplied) for the enactment of a common civil code.
Then came Ashutosh Gupta vs. State of Rajasthan & others 2002 (4) SCC 34 at para 6) where it was held (in the context of Article 14) that the concept of equality before law does not involve the idea of absolute equality among all, which may be a physical impossibility. All that Art. 14 guarantees is the similarity of treatment and identical treatment.
The equal protection of laws does not mean that all laws must be identical. Equality before the law means that among equals the law should be equal and should be equally administered and that likes should be treated alike. Equality before the law does not mean people with differences shall be treated as if they were the same.
In (2002) 7 SCC 368 at paras 31, 56, 84 and 97, Ms. Aruna Roy & others vs. Union of India & others, the Court said “religion is the foundation for value based survival of human beings in a civilised society. The force and sanction behind civilised society depends upon moral values.” The importance of religion in regulating human conduct stands recognised. Denuded of its constitutionally guaranteed practices, can religion remain religion?
In TMA Pai Foundation and others Vs. State of Karnataka & others (2002) 8 SCC 481 (eleven Judges) it was noted that regarding Article 27 of the International Covenant on Civil and Political Rights 1966, the Human Rights Committee in its general comment adopted on 6-4-1994 stated the article establishes and recognises the right that is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the covenant. (Art.27, ICCPR: in those states in which ethnic religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language.)
The Court explained that rights conferred on linguistic or religious minorities are not in the nature of privilege or concession, but their entitlement flows from the doctrine of equality which is the real de facto equality. Equality in law precludes discrimination of any kind, whereas equality in fact may involve the necessity of different treatment in order to attain a result that establishes equilibrium and parity.
International treaties have been held to be enforceable by law, and one can have the anomalous situation of a Constitutional Directive Principle of State Policy being not enforceable by any Court, and yet the very same provision be found to be enforceable in another garb, as a provision in a treaty signed or ratified by our country: an Indian Court could find itself unable to enforce a provision of the Indian Constitution, and yet able to do precisely what that directed, by decreeing enforcement of a treaty obligation.
In the Constitution, 5th Schedule, Item 5, we have that (1) notwithstanding anything in this Constitution the Governor may … direct that any particular Act of Parliament or Legislature of the State shall not apply to a Scheduled Area or any part thereof … or shall apply … subject to such exceptions and modifications as he may specify … and any direction … may be given so as to have retrospective effect.
(2) The Governor may make regulations …
(3) In making any such regulations … the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question (effective after Presidential assent).
Thus we learn from the Constitution that we can effectively have areas where even a “common” civil code does not apply even in parts of India. Diversity of laws, it seems, is very much a part not just of India but also of the Constitution!
There is no need for any uniform Civil Code. Those who clamour for such a code have no interest in any such thing but believe it to be a stick with which the minorities can be compelled to adopt more and more the practices and beliefs of the majority to turn India into a monochromatic entity. Ill-informed and ill-advised unconstitutional, illegal minority subjugation, minority bashing, defamation and demonization is the hallmark of a large number of those buying into this and becoming adherents of a very toxic viewpoint which is fueling this exercise and there are many with a great amount of zeal but little awareness more than willing to jump on the bandwagon believing that they are participating in a historically relevant exercise that will change India and catapult it to becoming vishvaguru.
Surprisingly the violence that manifests itself against minorities in almost every part of the country now does not cause any alarm in legislative, judicial and ancillary bodies, nor does the increasingly strident increasingly toxic hate speech and defamation of certain communities. Very serious issues which have been lying before the Supreme Court and other courts are allowed to continue to just lie there and are not taken up and while all this remains unaddressed the focus is a Uniform Civil Code: more an exercise in pushing Muslims, Christians and other minorities on the backfoot to have one more area of fire-fighting occupy them, rather than allow them to focus on their daily lives to better them.
I believe it is clear that the exercise to push any Uniform Civil Code down the throats of unwilling citizens is not bona fide, is not required, is a politically camouflaged unconstitutional attack on the very provisions of the constitution which guarantee one’s right to practice and propagate one’s religion, and must in the national interest be immediately given up and the State’s attention focused on the hundreds of other serious issues which are facing the country and which are destroying the lives of citizens across the spectrum of all religions and ethnicities.
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