Uniform Civil Code: Are we ready for it?
GUEST COLUMN / Abhishek Manu Singhvi
So emotive is the debate on the Uniform Civil Code (UCC) that anyone trying to
sound a cautionary caveat is automatically seen as being anti national
integration. The UCC may well be a desirable ideal whose time has not come.
Bandying it around like a cliche — for political or other reasons — may
ensure that it never fructifies.
The real issue is whether a UCC should be enacted as a compulsory Code of
personal law for every Indian irrespective of religion. Our founding fathers
decided not to do so. Not only was Article 44 deliberately and consciously not
made a fundamental right but the Constituent Assembly Debates (CAD) reflect the
true intent of our founding fathers. Ambedkar clarified on November 23, 1948
that "too much" was being read into the Article because: "...(it)
merely proposes that the State shall endeavour to secure a Civil Code for the
citizens of the country. It does not say that after the Code is framed, the
State shall enforce it upon all citizens merely because they are citizens. It is
perfectly possible that a future Parliament may make a provision by way of a
beginning that the Code shall apply only to those who make a declaration that
they are prepared to be bound by it, so that in the initial stage the
application of the Code may be purely voluntary."
If that be so, can it be said that those who repeatedly purport to talk of the
UCC are fulfilling the true Constitutional intent while omitting to mention the
"volitional" method emphasised by Ambedkar? Or are they merely trying
to whip up passions and score a political point when they envisage a compulsory
Code?
The important thing is the generation and creation of a consensus on the issue,
not its use for creation of further divisions in a fractured polity and a
fragmented social order. Consensus requires a gradualist, evolutionary and
empathetic approach in addition to sensitive handling. None of those words
appear to exist in the dictionary of those who bandy the UCC as a cliche.
The apex Court has done no more than repeat that Article 44 and its obiter
cannot go beyond the scope of that Article itself. None of the apex Court
judgements — Shah Bano applying established Indian law that Section 125 CrPC
operates even if it violates Muslim personal law, Jordan Dengdeh simply
repeating Shah Bano, Sarla Mudgal mentioning UCC gratuitously while deciding an
unrelated issue on the validity of a second bigamous marriage by a Hindu and the
latest apex Court judgement holding Section 118 of the Indian Succession Act
(imposing special conditions on testamentary disposition by Christians)
unconstitutional and violative of Article 14 — can be even remotely read as a
mandatory direction or even an exhortation for the compulsory enactment of a UCC.
Lastly, is it really easy or possible to enact a compulsory UCC when we roll up
our sleeves and get down to the nitty gritty? Even within the corpus of Hindu
(statutory) law, we continue to recognise and give effect to the diverse
Mitakshara and Dayabhaga schools of law. Where do we locate our wonderful HUF
and the matriarchal customary laws of Kerala and the North East? What will
happen to the scintillating diversity of tribal customs and tribal laws? Will we
compulsorily permit divorce on grounds of change of religion — as Hindus alone
can do under the HMA, as also the principle that a Hindu mother cannot give away
in adoption unless the father is dead because the latter alone is the natural
guardian? It is wrong to axiomatically assume that compulsory uniformity binds.
(The writer is a Supreme Court advocate)
[Source: http://timesofindia.indiatimes.com/articleshow/97154.cms ]