Common Civil Code sans Coercion
Sharad Joshi, Founder- Shetkari Sanghatana
The Supreme Court of India has come out in favour of a Uniform Civil Code in the Country that is a law common to all communities in personal matters such as marriage, divorce, inheritance, and succession. This is the third time a bench of the Supreme Court has come out in favour of a Common Civil Code. Every time the Apex Court pronouncement has created political turmoil.
The Supreme Court's observation in Shaha Banu case had to be counteracted by passing a law in the Parliament to that effect and Rajiv Gandhi was forced to open the Ram temple in Ayodhya after being closed for 35 years with a view to placating the Hindu opinion.
The second time, in Sarala Mudgal case, Kuldip Singh, the Supreme Court judge had to promptly clarify that he had only made an observation and not issued a directive for the enforcement of principle contained in Article 44 of the Constitution of India.
This third observation has gladdened the hearts of the BJP and VHP leaders and caused panic reactions amongst the Muslims. The judicial observation is particularly inopportune since its public knowledge that BJP was always strongly in favour of a Common Civil Code but that it was required to keep the matter on the back burner since it was unable to carry its National Democratic allies with it on the subject.
Article 44 of the Constitution of India enjoins upon the State 'to endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.' This article forms a part of Chapter IV on 'Directive Principles of State Policy' and has no judicial force. That is, the provisions contained in this part shall not be enforceable by any court. But, the principles laid down therein are, nevertheless, fundamental in the governance in the Country and the State shall apply these principles in making laws.
It is common knowledge that successive governments have been endeavouring in the direction of evolving a Common Civil Code – codification of Hindu law and other religious laws has already advanced in great measure. The Article 44 of the Constitution of India does not specify any time schedule for the enactment of a Common Civil Code and the judiciary, in its normal role, serves little judicial purpose by harping on it.
The question of the Common Civil Code came for deliberation in the Women's Conference of the Shetkari Sanghatana at Chandvad (Dist. Nashik in Maharashtra) in November 1986. The Conference raised serious doubts about the coercive element of the proposal as also about the justification for the government entering the field of moral and ethical authority. It had made a concrete proposal for an alternative 'National Civil Code' that would be consistent with principles of equity and justice but would give the conscientious objectors to continue in their respective religious systems.
A Liberal Prescription
The Swatantra Bharat Party, successor to the Swatantra Party founded by C. Rajgopalachari, adheres essentially to liberal principles and minimal and plural governance. It abhors the intervention of the State in all matters except Law & Order and Defense. It stands by the individual citizen's freedom of profession, practice and propagation of religion enshrined in the Article 25 of the Constitution of India as a fundamental right. The Election Manifesto 2004 of the Swatantra Bharat Party contains a very clear analysis as also prescription for this problem. It is as follows.
NATIONAL CIVIL CODE
The proposed Common Civil Code has been, for some times, the subject of a wide spread national debate and that the debate is being dominated largely by the denominational dogmatists and by the self-seeking politicians, Article 44 of the constitution contains a directive principle that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
The directive principles in the constitution were adopted at a time when the State was viewed as the supreme arbiter and authority in all matters social, economic, cultural, educational et al. The SBP on the other hand believes in a minimal political government and a plurality of governing institutions and is, therefore, opposed to the idea of the State deciding considered moral or ethical.
Further, according to the Constitution, the Indian Republic is a secular State, which means, 'equally skeptical of all religious dogma' and not a State enclosing the dogma of all faiths. However , a uniform civil code would be a laudable objective in the long run and the best way of endeavoring to introduce it will be through the elaboration of an optional and norm-setting national civil code:
- Elaboration of a National Civil Code connotes neither disputing the relative merits of various religious, civil systems, nor imposition of one religious code on all the peoples, nor a hotchpotch melange of diverse religious stipulations;
- The National Civil Code must represent a well integrated scheme based on equality, justice and reason;
- very citizen of the Republic should be a-priori considered as being governed by the National Civil Code; however any citizen or his guardian should have the possibility of opting for the civil system of any of the established systems of faith;
- The State judicial system should not intervene in civil disputes between citizens opting for the same religious code.
- Disputes between citizens for a single religious code be decided according to the National Civil Code, should any of the parties choose to take recourse to the official judicial system.
- Disputes between citizens appertaining to different religious codes will be subject to the National Civil Code.
Some leaders oppose the idea of a Common Civil Code on the grounds that the initiative should come from within the society and particularly from the minority communities.
The fact is that, since the BJP made the Common Civil Code an electoral plank, progressive Muslims and women have come under great pressure not to support any civil reforms. The proposal of a Common Civil Code has thus become counter-productive in practice. The Swatantra Bharat Party's proposal of a National Civil Code is, in fact, a Common Civil Code since it applies equally to all the communities throughout the territory of India. The provision relating to the 'conscientious objectors' apply equally to members of all the communities.