Legal Eagle Shafeeq R Mahajir
By Dr Ahmed Mohiuddin Siddiqui
The 22nd Law Commission of India notified its intention to examine the Uniform Civil Code (UCC). This was being done, on a reference sent by the Ministry of Law and Justice. Perhaps, this stems from Narendra Modi Government’s “desperation for a legitimate justification of its continuing agenda of polarization and diversion from its glaring failures”.
Not taking lessons from the Karnataka Story of making South India Bharatiya Janata Party (BJP) – Mukt (Cleared of BJP), the BJP seems to be pushing the UCC in its manifestoes in state after state starting after tasting partial success with Uttarakhand.
It may be recalled that the 21st Law Commission, after carrying out a detailed and comprehensive review of the subject, observed that it is “neither necessary nor desirable at this stage” to have a Uniform Civil Code. The Law Commission published a notice soliciting views and ideas of the public at large and recognised religious organisations about the UCC.
The Muslim Personal Law Board has already rejected the call for a Uniform Civil Code. Other than organizations, noted individuals are coming forward to express their views regarding the UCC.
Indian Legal Luminary and internationally acclaimed human rights defender, Shafeeq Rehman Mahajir, who fought many a legal battle successfully, has sent his views to the Law Commission about the futile exercise of having an UCC with his unrefutable arguments.
He exclusively shares his elaborate views on UCC with Maravi Express published from the Republic of Malawi in Africa. His views will be the torch bearer for all legal discussions and articles and debates in the print and electronic media in the coming days.
Bookmark this article for a detailed reading at leisure. The erudite lawyer Shafeeq Rehman will leave you spellbound with his immaculate arguments in more than 6,000-word views!
Shafeeq Rehman Mahajir thus says:
‘‘The Article 44 of the Constitution came up for comment two decades ago and in Ms. Jordan Diengdeh vs S.S. Chopra AIR 1985 SC 935 the court (two judges comprising the bench) suggested for a complete reform of law of marriage (in that case involving a Christian and a Sikh) quoting with approval from Mohammed Ahmed Khan vs Shah Bano (AIR 1985 SC 945), where the necessity of uniform civil code in the country was suggested by the Court (five judges comprising the bench) which quoted Article 44 of the Constitution and said there was “no evidence of any official activity for framing a common civil code for the country”.
Restricting the scope of that the Court proceeded to defer to the belief that it was for the Muslim community to take the lead in the matter of reform of their personal law.
The observation in that case aside, not a single instance has been forthcoming of any community as a body coming forward for a change-over from their personal law to a common codified law: at best some reform-desiring members of the one or the other group have tried to create awareness of anomalous results in certain areas, and been naturally resisted by groups which hold their Divinely revealed law cannot suffer non-Divine modification, and members of their community must seek solutions emerging from within the concerned group. Obviously, these would be more acceptable, being actually fresh interpretations rather than any new legislation or substitution.
The Court said a common civil code will “help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. There was apparently at least a perception that national integration was somehow obstructed because of diversity of laws. People don’t have loyalty to laws.
Following diverse personal laws, operating in a non-secular, personal field, internal to a group, has little to do with loyalty to country: it was not as if a foreign law was being followed: what was being followed was a local law that had evolved locally over the centuries and was not even as originally created: what prevailed was a hybrid version peculiar to the sub-continent. The further observation “laws which have conflicting ideologies” implies some “conflict” in the laws’ ideologies.
Conflict would arise only if two sets of laws were to be applied to one set of people in a given situation, whereas in personal law matters a particular personal law would find application within a particular group, and not different laws.
Where would the conflict be? Certainly not in the laws, for we would all be following differing laws, which would govern relations between those of us that formed part of one group only, and not another with a different “ideology”. Where we come into transaction situations with others of other groups, codified national laws would govern, as they do now.
Stating further that the State had the duty to secure a common civil code for the country, the Court proceeded also to say that (the State) “unquestionably has the legislative competence to do so”. That conclusion there is at least some reason to question: the words of article 44 are not the imperative language of other articles as seen below.
Article 26 of the Constitution says subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion; … etc.
Now, a religious institution is not necessarily only a mosque where worship is performed. Any institution that caters to any aspect of religious practice would qualify as a religious institution. Wakf, Qazi, Bait-ul-Maal, setting of calendars on moon sightings signalling the start of months, institutions for the sacrifice at Eed-ul-Zuha, for collection of zakaath and its distribution — what part of this is divorced from religion?
A Constitutionally guaranteed freedom and right to establish and manage institutions for religious purposes, and for a community to manage its own affairs in matters of religion, cannot be eroded or diluted by such interpretation of another provision (a direction to try to secure a certain result) as to render the guarantee itself nugatory or illusive.
A right to establish and manage institutions for religious purposes presupposes that those institutions can function as such and not be mere showpieces to be held up only for effect. None of these institutions would at all remain functional if the right and freedom enshrined as above is eroded. Effectively, a constitutionally guaranteed freedom and right would be negated. It is submitted that that would not be at all proper or acceptable from any legal standpoint.
The definitions of words and/or phrases like “religion” and “religious purposes” would be very significant, and affairs in matters of religion do not mean just worship! The practice of Islam for instance would encompass various matters of that religion and so far none has suggested that public order, morality or health are affected by my marriage to more than one woman or my divorce by unilateral action consistent with my personal law, or my distribution of my inherited property in a certain manner amongst my family, or the way my family ladies and men dress, the way we worship, the way we celebrate our festivals, etc., which are for me all religious matters.
Not one of these involves public morality or order. How then can one Constitutional provision be so interpreted without reason as defined in the guarantee, as to render otiose or unmeaning the guarantee enshrined in the Constitution?
From Article 29 which says any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, we see that the definition of “minority” is not obscure, and it can be ascertained from the characteristics mentioned, viz., a section of citizens having a distinct language, script or culture of its own: ipso facto, anyone can be a minority.
Article 30: all minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. It is immediately clear that here we have a more inclusive definition of “minority” : numerically smaller (vis-à-vis total population) group of citizens who have a common religion or language! Muslims, Parsis, Christians … any questions about what the Constitution meant by minority is set at rest.
Article 37 says the provisions contained in this Part of the Constitution shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
Therefore, if a citizen were to invoke the Court’s power seeking direction to the State to implement a directive principle of State policy, the application would be liable for rejection. The words are not “enforceable at the instance of any citizen”, and therefore under no circumstances would they be enforceable by Courts. Not being enforceable directly at all, indirect enforcement by suo motu directives of Courts would also, it is submitted, stand excluded.
Courts, it is submitted, ought not to place themselves in situations that tend to erode their authority: would the Court suggest the State do something, which suggestion is far short of an order, which latter itself the Court stands precluded from, and therefore has no power to enforce ? Differently put, if the Court directs the State to enact a uniform civil code and the State refuses, can the Court do anything about it?
Note the article states the provisions “shall not be enforceable by” any Court but does not state that action in pursuance of a directive principle “shall not be called in question before any Court”. Therefore, while one citizen cannot seek direction to enforce, another can sustain a challenge to the exercise of power by the State. Grey waters, with uncertainties lurking.
Scrutiny of these shifts in phraseology is a tool that aids understanding of intent. Article 38 (1) says the State shall strive to promote the welfare of the people — while (2) adds emphasis by saying the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities…
The mandatory “shall strive…” in no: 1, changes to the “… shall in particular, strive…” in no: 2. An emphasis is provided by the framers of the Constitution where they desired to emphasise a point. In Article 39, we learn the State shall, in particular, direct its policy towards securing… (Note the continued use of the “in particular, strive…”), with this article also seeking parity between citizens. In Art. 39A requiring that the State shall secure that operation of the legal system promote justice, the mandatory expression “…shall secure…” is again present.
However, when we come to Article 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 emphasised in shall 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 Article 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 10-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?
Article 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, Article 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.
Article 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 (Abraham) 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 Hindu 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 or Hijab 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 practice 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 (scaves worn over their heads) 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?
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 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 Article 47 calling it the State’s primary duty and setting a time frame of ten years) come before any uniform civil code which Article 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).
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 laws 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.
Article 25 says (1) subject to public order, morality and health — all persons are equally entitled to the right freely to profess, practice 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 ?
Article 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 Portugese 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 is there any problem 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?
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 of India was pleased to voice another view. In Lily Thomas & others vs Union of India & others [2000 (6) SCC 224], the Supreme Court pointed out (headnote 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 needs 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 Jamat-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 Article 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. (Article 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 has 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, ill advised unconstitutional illegal minority subjugation, minority bashing, defamation and demonization is the hallmark of a large number of Wasseypur bus adherence of toxic viewpoint which is feeling this exercise and there are many with the great amount of zeal and little education more than willing to jump on the bandwagon believing that they are participating in a historically relevant exercise that will change India and catapulted 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 a community.
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 such Uniform Civil Code more and exercise in pushing Muslims, Christians and other minorities on the back foot to have one more area of fire fighting rather than focus on their daily lives and 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,” concludes the legal brief.
The learned lawyer Shafeeq Rehman Mahajir has expressed himself lucidly above regarding the Uniform Civil Code. As I analyse the above Legal Magnum Opus, I would just say that there are more things that unite our countrymen than things that divide.
India’s Prime Minister Narendra Modi must make immediate efforts to provide relief to the Christians in the north-eastern state of Manipur, hundreds of extremists who slaughtered Christians and destroyed more than 200 Churches must be punished by law at the earliest.
He must not dissipate his energies to push a divisive agenda of UCC for the 2024 elections to the Indian Parliament. The vulnerable BJP leader Narendra Modi is fighting a losing battle as political knives are out even in the BJP for his replacement.
His trusted partner in division and rabble rousing – Amit Shah has raised a virtual banner of revolt openly as he says that the country should have a Prime Minister from the southern state of Tamil Nadu. Why not?
Consign the Uniform Civil Code to the dustbin of history forever. Move on, my dear countrymen!
* Dr. Ahmed Mohiuddin Siddiqui is Consulting Editor for Foreign and Political Affairs, Maravi Express, Republic of Malawi, Africa