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 and direct their attention towards Muslim Personal Law? 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 hostage to political posturing? Remember the Constitution was 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.
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.
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 pretentious perceived oppression?
Considering Constitutional fiat that provisions among directive principles shall not be enforced by any Court, the question is can a Court which cannot in a lis 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 of 2-12-1948). 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 then 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 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 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.
To be continued
Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad