Take a quick call on uniform civil code: SC tells Centre

[lightoftruth]

The Supreme Court on Monday gave the government three weeks to come up with a proposal to amend the Christian divorce act while asking it to take a quick decision on a uniform civil code to end the confusion over personal laws.

“If you want to have a uniform civil code have it, you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by justice Vikramjit Sen told solicitor general Ranjit Kumar.

The court is hearing a public interest litigation filed by a Delhi-based man, seeking waiver of two-year mandatory separation period before a Christian couple can move court for divorce by mutual consent. The separation period is one year for other religions.

India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu Law overhaul began in the 1950s and continues, Christian and Muslim laws are relics of the colonial era.

This is the second time in four months that the court reminded the government of its responsibility as enshrined in the Constitution.

Article 44 says the state shall work towards securing a uniform civil code across the country replacing personal laws of various religious communities. The provision is a part of the Directive Principles of State Policy that are not enforceable by any court but, says Article 37, the government is duty-bound to apply them in making laws.

“What is happening? Why is this happening? It’s total confusion….The petitioner is just seeking that the Christian law should be on the same platform as that of the Hindu law as their personal law (Christian) prescribes a minimum of two years, whereas others have one year,” the bench said.

Albert Anthony has challenged the validity of Section 10A (1) of the Divorce Act, 1869, saying the two-year mandatory period of separation was biased against the Christian community amounting to “hostile discrimination”.

The Kerala and Karnataka high courts had declared the provision unconstitutional but Christians living in the other states were being denied benefit of the two judgments, he said.

Granting relief to unwed mothers who did not want to reveal the name of their child’s father in a guardianship case, justice Sen had in July strongly advocated such a code.

“India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law,” he had said.

Not just courts, but activists, too, are of the view that common secular personal laws will go a long way in bringing about gender parity.

“A common civil code will help the cause of national integration by removing disparate loyalties to law which having conflicting ideologies,” CJI YV Chandrachud said in the Shah Bano maintenance case in 1985.

Ten years later, the court declared invalid the second marriage of a Hindu man who converted to Islam to marry without divorcing his first wife. “It appears that…the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949,” justice Kuldip Singh said in what came to be known as the Sarla Mudgal case.

A uniform civil code, however, remains a contentious issue. While the BJP, which leads the government at the Centre, has been demanding it for long some minority groups are opposed to it.

Take a quick call on uniform civil code: SC tells Centre | india | Hindustan Times

 

[dadeechi]

Here comes the hot potato....

 

[karakoram]

Uniform civil code is the only key to become super power by indians rest all problems solved

 

[dadeechi]

Uniform civil code is the only key to become super power by indians rest all problems solved

Who's afraid of a uniform civil code?

By B.G. Verghese
A uniform civil code will focus on rights, leaving the rituals embodied in personal law intact within the bounds of constitutional propriety.
THE SUPREME Court's lament about the country's failure to adopt a uniform civil code as enjoined by Article 44 of the Constitution has revived a debate that will hopefully not be swept under the carpet again. The entire issue has unfortunately been distorted and misdirected from its very inception. Ideologues have deliberately used it as a stick with which to beat the minorities, and Muslims in particular, through the threat of a majoritarian homogenising principle destructive of the precious identity markers seen in the existing diversity of personal laws.
The bogey that a uniform civil code necessarily entails the repeal of personal laws needs to be laid to rest. This is simply not so. The existence of the Indian Special Marriage Act or the Indian Succession Act has not extinguished personal laws in this regard. On the contrary, the Special Marriage Act, a uniform marriage code for all Indians, was regressively amended in 1976 to provide that Hindus marrying under it would continue to be governed by the Hindu Succession Act.
Per contra, the Supreme Court's latest obiter on the virtues of a uniform civil code occurs in a ruling that strikes down certain discriminatory provisions in the Indian Succession Act barring Christians from bequeathing property to religious and charitable trusts. Again, Goa's uniform civil code, a welcome legacy of Portuguese colonial rule, now happily co-exists with a variety of personal codes available to followers of particular faiths. But it makes available an option and underlines the point that a uniform civil code and personal laws do not represent an either/or choice and that the one does not mandate the obliteration of the other.
If enacted, a uniform civil code will be one among many and, like the Special Marriage Act, an option. This is guaranteed by the constitutional provisions pertaining to the right to freedom of religion. Both Article 25 (freedom of conscience and free profession, practice and propagation of religion) and Article 26 (freedom to manage religious affairs) are, however, subject to considerations of public order, morality and health and to the values enshrined in all other fundamental rights such as equality and social justice. Article 29 separately protects the cultural rights of the minorities.
Article 25, while protecting religious freedom, also empowers the state to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice. This introduces an important distinction between sacred and secular. Thus practices such as witchcraft, superstition, ordeals, `sati,' child marriage, prohibitions against widow remarriage, caste discrimination, triple talaq and polygamy may be and have been barred or regulated. However, whether and where a boundary is to be drawn could be contentious.
While religious ideologues have been responsible for derailing a rational debate on a uniform code, secularists have done the nation grave disservice by opposing movement towards a uniform code or reform of personal law. A touch-me-not secularism has resulted in stalling the process of modernisation and social reform by pushing large sections of emotionally besieged and ghettoised Muslims and even Christians into the arms of the religious orthodoxy. One needs to be wary of the liberal secular ideal becoming a narrow and hollow `ism.'
A uniform code has been wrongly posited as an assault on religion and religious identities. What it essentially aims at is secular reform of property relations in respect of which all religious traditions have grossly discriminated against women. A uniform civil code is, therefore, foremost a matter of gender justice. But male chauvinism and greed have joined with religious conservatism to forge an unholy alliance to perpetuate a major source of gender discrimination thereby impeding the modernisation of social relations and national integration.
There is a larger reason for a uniform code. With the slow but steady empowerment, modernisation and even globalisation of Indian society, the country's real diversity is becoming manifest. Cohort after cohort of the long suppressed and submerged underclass is thrusting up from below to claim its place in the sun as equal citizens who will not be denied their fundamental human rights. In the process, they are breaking traditional barriers of community, caste, race, region, language and gender, challenging the old and increasingly outmoded social order of which conservative personal laws are a part. Iniquitous social prohibitions and restraints, including on women, are now being falsely portrayed as religious verities to thwart secular reform.
Today, with growing education, migration and economic and social mobility, unknown and earlier socially prohibited relationships (for example, inter-caste, inter-regional, inter-community marriages and divorce and the acquisition and disposal of self-acquired property by women) are becoming increasingly common. In the circumstances, there could be social breakdown, heartburn and strife even among couples of the same community without a uniform civil code. Traditional personal codes do not accommodate emerging multicultural realities and aspirations. On the other hand, suppressing them could engender violence or deviant behaviour, undermining public order. The Special Marriage Act fortunately provides a safety valve. But it is absurd and regressive that Muslim and Christian Indians cannot legally adopt a child for lack of a uniform code on adoption.
These inhibitions and barriers apply across the board. Despite some reform and codification of Hindu law, there is a long way to go. Try touching the Hindu Undivided Family, once a relevant social concept but now largely a tax haven, and a huge outcry may be expected. There is today extant not one but several Hindu, Muslim, Christian and other personal codes. Therefore, quite apart from legislating an optional uniform civil code, it is necessary to codify and reform the many prevailing personal laws to bring them in line with the values and principles of the Constitution and the realities of contemporary social life. This applies equally to customary tribal laws and religious practices that variously enjoy constitutional protection.
The country therefore needs a twin strategy. An optional uniform civil law should be promoted by the state. Clerics, among others, should be heard but must not prevail on issues of secular life that are beyond their province. This is essential if we are to invest new meaning in India's secular ideal and rescue Muslims from malicious accusations of hindering national integration. At the same time, all religious communities must be encouraged to debate and support codification and reform of personal laws. If, Egypt, Iraq, Pakistan and Indonesia have reformed Muslim personal law, there is no reason why Muslim Indians should not follow suit. But if Muslims are to move in this direction there must be no more Gujarats with state connivance and the Best Bakery variety of justice.
A uniform civil code will focus on rights, leaving the rituals embodied in personal law intact within the bounds of constitutional propriety. Being optional, it will provide free choice and facilitate harmonisation of social relationships across the country in keeping with the changing contours of emerging societal realities. A uniform civil code should not be constructed, as sometimes suggested, by putting together the best elements from various existing personal codes. This will invite contention. It is far better that a uniform code is framed de novo by some body like the Law Commission, in consultation with relevant experts and interests, as a citizens' charter governing family relations.
A liberal, forward-looking uniform civil code may be expected to win many adherents, especially from those with cross-cultural backgrounds. This could in time induce custodians of faith to look inwards and seek to codify and reform age-old personal laws in conformity with current modernising and integrative tendencies or risk losing their flock.
If the Centre is unwilling to move forward, there is no reason why some progressive States should not take the lead as they have done in the case of legislating Freedom of Information Acts. A national uniform civil code could follow. Goa has shown the way and there is absolutely no reason for delay. A secular India needs a uniform civil code. To mark time is to march with the communalists.

The Hindu : Who's afraid of a uniform civil code?

Personal laws need urgent reform
R D Sharma
| 01 October, 2015

The Supreme Court (SC) has reminded the Union Government thrice in this year of its obligation to enact a Uniform Civil Code (UCC) as enshrined in Article 44 of the Constitution. This Article being one of the directive principles of State Policy directs, non-bindingly of course, that the “State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”
Similar sharp reminders from the apex court also came long before in the Shah Bano case (1985), the Sarla Mudgal case (1995) and the John Vallamatom case (2003) stressing that such a code would remove disparate loyalties to personal laws which have conflicting ideologies. The ruling orthodoxy in all religions, however, has resisted the idea of UCC and it still remains an unaddressed constitutional expectation.
The theme of the UCC and its impact on national integration also figured in the recommendations of the National Commission to Review the Working of the Constitution. What seems to be clear is that the issue has fallen off the political map. No political party of national significance other than the Bhartiya Janata Party (BJP) is willing to line-up behind the demand for a civil code. The BJP made it in 2014 one of its electoral promises in its election manifesto but due to compulsion of coalition politics, it has also chosen to place the issue on the back burner, to say the least.
It is not without significance to mention that the Muslim community, by and large, seems to be sharply hostile to the idea of a civil code and wishes to preserve its own personal law. Hence any move in this direction against their sentiments is bound to create more ill-will, mutual suspicion and weaken the fabric of the nation. In such a hostile atmosphere it will not be advisable to enact a UCC, optional or otherwise, even though such a code is eminently desirable and its eventual adoption forms part of the Directive Principles of State Policy.
Nevertheless, not all the opponents of the UCC are opposed to a reform of their personal law. Many progressive-minded and forward looking Muslims openly admit that not only is their law as practiced in India grotesquely unfair to women but also contrary to the basic tenets of Islam as understood and observed in a host of Muslim countries. Hence a strong case for reform exists.
In any case, not only Muslim Personal Law (MPL) but also other personal laws of different communities are pro-male in character, grossly biased in nature and blatantly discriminatory against women. For instance, a woman cannot inherit ancestral property under Hindu Law. If she is abandoned by her family, she cannot claim maintenance from her natal family as a matter of right.
A Hindu woman cannot adopt a child in her own name. Nor has she guardianship rights over her child who is above five years of age. The wife of a Hindu cannot be her husband’s coparcener. The Hindu Succession Act debars female heirs of a Hindu dying intestate from laying any claim to a portion of residence left behind by the deceased unless male heirs choose to partition it for determining their share in the property.
Whatever the other virtues of MPL, the position of women is no better under it. While monogamy is the rule of law for a Muslim woman, the husband is entitled to have four wives at a time. He can dissolve the marriage any time at his will. The wife on the other hand, can divorce only with her husband’s consent. She also cannot be a guardian of her minor child. Under the law, the share of a male heir of the same degree is twice that of a female. Polygamy, unilateral divorce and non-availability of maintenance after iddat period to a divorced woman from her husband are other disturbing aspects of the law.
Similarly, the Christian laws of marriage, divorce, maintenance and succession appear to be archaic, harsh and discriminatory towards women. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for any couple to get mutual divorce. But in other statutes like Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act the mandatory requirement of separation period is just one year for the same - a patent discrimination on the face of it. This discriminatory provision, however, is under challenge before the apex court. Also, the Succession Act of 1925 gives Christian mothers no right in the property of their deceased children who have left no will. All such property is to be inherited by the father. If the father is not alive, it goes to the siblings.
The lot of women in India is miserable simply because all personal laws have not been subjected to contemporary social reforms. On the contrary, efforts are made to deny in the name of religion even the rights and privileges the Constitution of country liberally grants to women. To allow things to remain as they are would mean that more and more provisions of different personal laws may have to be tested before the law courts to determine how far they are in conformity with the Constitution, particularly its part-III.
In attempting to reform and codify the Hindu Law in the first instance the idea was that if it succeeded, other communities would follow suit and ask for similar reforms in their respective personal laws, but this did not happen. However, all this does not mean that existing personal laws should remain unaltered. An effort ought to be made to weed out all such provisions of these laws which on their face are harsh, unfair, antiquated and discriminatory to women.
In all fairness, personal laws ought to be amended from time to time so as to keep them in tune with contemporary social needs of society. Laws can never be static. They grow and change with times. While the judiciary’s role in attempting to rectify gender and other biases that prevail in community-specific legislation is widely welcome, at the same time the legislature cannot escape its prime responsibility of law making. If the government remains impervious to this articulate cry for justice, it will only strengthen the impression that its commitment to secular philosophy is less than total.
It goes without saying that the Constitution prohibits any kind of discrimination on grounds, inter alia, of religion. But personal laws, as they exist in India, tend stubbornly to discriminate against women. Not only are Muslim women worse off, but the Hindu, Christian and tribal women are equally losers under the personal law regime. There should be equal rights and equal laws to all women irrespective of their caste, community and religion to ensure gender justice in the true sense of the term. When all personal laws reach a certain level of reform, the goal of a Uniform Civil Code will be easier to achieve.
The writer is Advocate, Supreme Court of India and Delhi High Court.

The Statesman: Personal laws need urgent reform

Panel of eminent jurists reopens debate on Uniform Civil Code

CHENNAI: Uniform Civil Code is neither a myth nor a mirage. It is a reality which the Constitution-makers wanted India to bring about, well-known jurist and former judge of the Supreme Court K T Thomas told an informed gathering here on Saturday.
Infusing fresh life into the decades-old debate on a Uniform Civil Code for the nation, Law Commission of India chairman Justice A P Shah, on his part, said: "Let us have a Uniform Civil Code, but do not close the possibility of an individual's right to exercise his personal law. It, however, shall be ensured that the personal religious law does not violate the provisions of the common law."
The jurists were participating in a discussion titled 'Uniform Civil Code - Constitutional Politics and Judicial Will', as part of this edition of Lawgical Connect, organised by SASTRA University in association with The Times of India.

Noted columnist S Gurumurthy, who moderated the event, said, "Before 1937, Hindus and Muslims were united by a common customary law. They were divided only by the Shariat Law of 1937."
Earlier, Justice Thomas said till now law was not uniform for all Indians. Wondering as to why Hindu, Christian and Muslim people should have separate laws, he said, "It is high time an Indian Succession Act and Indian Marriage Act is brought forth. Citizens of India should be covered by one law, as all are equal before law." He also wanted a law to be in place to curb the unbridled power, privilege and immunity enjoyed by members of the Parliament and state legislatures.
Justice Shah, in his speech, said it was unfortunate that the very intention of bringing a Uniform Civil Code was being viewed with suspicion. There are two reasons for the animosity towards such a code, he said, adding that ultra-orthodox elements among Muslims believed their personal laws were received and hence could not be amended. Also, a section of the majority community has created a perception that no provision of the Islamic personal law would be derived to be included in the Uniform Civil Code. No personal law is completely flawed or completely perfect, Justice Shah said.
Senior advocate and former president of Supreme Court Bar Association M N Krishnamani said the Uniform Civil Code was not about achieving uniformity of religions. "We are not picking tenets from each religion and making a brand new religion. We also do not want to interfere with personal faith and beliefs. It will foster relationship between man and man," he said.
While Evidence Act, Contract Act and Transfer of Property Act and other such legislations are all common for all, it is only fair that legislation concerning marriage and succession too are made common, he said, adding: "But political will is lacking, despite favourable orders by the Supreme Court."
Senior advocate and former union minister Manish Tewari, defending the 'much-abused secularism', said: "Secularism means separation of church from the State, and equal respect for all faiths and religions. A State has no business to interfere with the personal beliefs of its citizens."
Pointing out that Article 25 of the Constitution pertains to fundamental right of a citizen to profess and propagate his faith, whereas Article 44 talks about uniform civil law, he said there was a fundamental conflict and contradiction. Ruling out any interference, he said amendments should come from within the community.
"As an academic institution, we organised this programme to get scholarly inputs on the way forward to make Pandit Nehru's political dream a political reality," said S Vaidhyasubramaniam, dean, planning and development, SASTRA University. A consensus has been built for a common civil code through a common unifying denominator, he said.

Panel of eminent jurists reopens debate on Uniform Civil Code - The Times of India

 

[Bang Galore]

Here comes the hot potato....

Need not be. The fact that the Supreme Court is pushing for it takes some of the sting out & gives the government some cover. We however need it to be framed by an outside body like the law commission (as suggested by B.G. Verghese) with no government interference. The matter can come up for debate when it is done.

I think the time is right & the level of objection is vastly overstated. India is ready for a Uniform Civil Code.

 

[vsdoc]

Need not be. The fact that the Supreme Court is pushing for it takes some of the sting out & gives the government some cover. We however need it to be framed by an outside body like the law commission (as suggested by B.G. Verghese) with no government interference. The matter can come up for debate when it is done.

I think the time is right & the level of objection is vastly overstated. India is ready for a Uniform Civil Code.

I also think, very broadly, that it should address hot potato issues for every Indian.

Not just a majoritarian view on what appears wrong.

OR

If a consensus cannot be reached, remove the word Secular from our Constitution.

 

[dadeechi]

Need not be. The fact that the Supreme Court is pushing for it takes some of the sting out & gives the government some cover. We however need it to be framed by an outside body like the law commission (as suggested by B.G. Verghese) with no government interference. The matter can come up for debate when it is done.

I think the time is right & the level of objection is vastly overstated. India is ready for a Uniform Civil Code.

I also think, very broadly, that it should address hot potato issues for every Indian.

Not just a majoritarian view on what appears wrong.

OR

If a consensus cannot be reached, remove the word Secular from our Constitution.

The problem is arriving at the Least Common Denominator that would be acceptable to all.


The Shah Bano effect: How India is quietly modernising religious law even without a uniform civil code
From successfully granting Shah Bano her alimony in 1985 to allowing an unwed Christian mother to be her child’s sole guardian, contrary to expectation, India’s personal laws are moving forward.
Shoaib Daniyal · Aug 13, 2015 · 02:30 pm

Photo Credit: B Mathur/Reuters
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The past month has seen some important developments regarding community personal law in India. A committee on the status of women, set up by the Manmohan Singh government in 2013, recommended a ban on the Muslim practice of unilateral, oral divorce (triple talaq), arguing that it makes women “extremely vulnerable and insecure regarding their marital status".

At around the same time, the Supreme Court delivered a crucial judgment that allowed an unwed Christian mother to act as the guardian of her minor child without the approval of the absentee father, an act till now disallowed under the Christian personal law of the petitioner.

More good news: in a national survey of Muslim women published on Monday, an overwhelming majority wanted a stop to patriarchal legal practices such as triple talaq and polygamy. The survey, conducted by the Bharatiya Muslim Mahila Andolan, even reports that 88% of Muslim women want the state to explicitly oversee traditional Islamic courts, while 95% hadn’t even heard of the Muslim Personal Law Board.

Slow and steady

India has an odd system of personal laws where the family affairs of citizens (such as marriage, divorce and succession) are governed by a set of rules specific to each religion. Not only that, India’s personal laws for minorities such as Christians and, especially, Muslims are colonial relics, even as Hindu Law was modernised in the 1950s (an enormous achievement for which Nehru is not given nearly enough credit).

Given this lopsided nature of our laws, a community-agnostic uniform civil code for all Indians is often put forward as an emancipatory solution. Community-specific laws are seen to be cesspools of regressiveness and immune to any change. While the former is certainly true – personal laws in India are mostly patriarchal constructs – the latter might not be. As these recent developments show, the Indian state has been modernising personal law and, even in the case of Muslim law, this progress has a large measure of support. Crucially, this job is being done quietly, without the political sound and fury a common code would entail.

Progressive judgements

In the 2002 Shamim Ara case, for example, the Supreme Court took measures to reduce the arbitrary nature of the Triple Talaq provision in Muslim Law and to regulate it, thus somewhat strengthening the position of a Muslim wife. In the 2007 Dilshad Pathan vs Ahmadkhan Pathan case, the Bombay High Court went even one step further, stating that the arbitrary pronouncement of the word “talaq” wasn’t a sufficient condition for divorce. The court held that clear reasons for the divorce must be provided. Moreover, arbitrators must be appointed to initiate attempts at reconciliation.

Earlier, in 1999, the Supreme Court took it upon itself to tackle another instance of misogyny, this time in Hindu Law. The Hindu Minority and Guardianship Act, 1956, holds the father to be the natural guardian of a Hindu child. (It is only when the child is born out of wedlock that the mother can be the natural guardian.) In Githa Hariharan vs Reserve Bank of India, the court struck down this provision, holding that the father “cannot be ascribed to have a preferential right over the mother in the matter of guardianship”.

Shah Bano

The most famous instance of this kind, though, is the Shah Bano case. In 1985, the Supreme Court, upholding the decision of the lower courts, directed Shah Bano’s husband to pay her a maintenance amount under the alimony provision of Indian law applicable to all communities. The amount involved was a pittance – Rs 179 – especially considering her husband had divorced her after 43 years of marriage.

Lifelong alimony was a bit of grey area since Muslim law only dealt with maintenance during iddat, a period of only a few months in Bano’s case. The Supreme Court, nevertheless, boldly went ahead and, calling upon the “teachings of the Koran”, awarded Bano regular maintenance under India’s secular alimony law.

Many others were not as accommodating as the Supreme court, though: even this tiny sum of Rs 179, to an old woman left to fend for herself without any other source of income, was grudged by many Muslims, who considered the decision of the Supreme Court to supposedly be against Muslim Law.

In the furore that followed, the Rajiv Gandhi government made a great show of opposing the Shah Bano judgment in order to appeasing conservative Muslims. As a legislative response, it passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which was marketed as a roll back of the Shah Bano judgment.

People arguing for the necessity of a uniform civil code usually hold this instance up as a prime example of the dangers of having personal laws. While a UCC would ensure gender equality, the existence of Muslim personal law, it was argued, had allowed Rajiv Gandhi, in a bid to cravenly appease the Muslim voter, to further weaken the already precarious position of Muslim women.

But is that what Rajiv Gandhi had actually done?

Twist in the tale

Gandhi had made a big show of turning back the Shah Bano judgment by passing the Muslim Women Act. But he had also cunningly (in a good way) inserted section 3(1)(a) which spoke of “a reasonable and fair provision and maintenance to be made and paid” by a Muslim husband to his divorced wife.

In effect, the act did not nullify the concept of alimony and upheld the Shah Bano judgment. In fact, the act actually strengthened the position of Muslim women, since unlike the secular alimony law, which had a ceiling of Rs 500 per month, the Muslim Women Act had no upper limit, thus making men liable to potentially even higher maintenance payments than they would have if they had been subject to India’s secular alimony law.

To clear up any confusion, Danial Latifi, Shah Bano’s lawyer, filed a petition with the Supreme Court, asking for the law to be struck down as unconstitutional if it indeed did deny alimony to Muslim women. (Latifi is an interesting character: his earlier claim to fame was that he had written the socialist manifesto of the Muslim League during the 1946 elections in United Punjab). In 2001, the Supreme Court reaffirmed that nowhere does the Muslim Women Act deny women alimony and remarked that, “though it may look ironical, the enactment [Muslim Women Act] intended to reverse the decision in Shah Bano’s case actually codifies the very rationale contained therein”.

Far from being the epitome of social regressiveness, as it turned out, the entire Shah Bano episode displayed the amazing nimbleness of the Indian system to progressively update personal law even in the face of bitter conservative opposition.

UCC, from Nehru to Modi

Given the existence of this sort of positive gradualism, calls for a uniform civil code, while sometimes well meaning (and, it might be noted, sometimes not), might actually retard the ultimate goal: having more progressive laws. Even the mention of a UCC acts as lightning rod that brings to a halt all forward movement, as political factions get ready to oppose it with all their might.

The Bharatiya Janata Party, which made the Shah Bano case into an issue of so-called minority appeasement (obviously without bothering to actually read the Muslim Women Act), had for the longest time, the institutionalisation of the UCC as part of its core agenda. Easier said than done, however: India has now had a BJP government at the Centre for more than seven years but it is no closer to a UCC than it was while the Shah Bano case was underway.

While the BJP seems to have treated the modernisation of laws as a simple way to drum up communal passions, the issue of a UCC defeated even Jawaharlal Nehru. The first prime minster had fought tooth and nail against conservative Hindus to modernise Hindu Law. BJP founder SP Mookerjee, for example, attacked the efforts of the Nehru government to introduce monogamy and divorce into Hindu Law, which would, he claimed, “do away with the fundamental and sacred nature of Hindu marriage” and end up “killing the very fountain source of your [the Hindu] religion”.

Not a silver bullet but gradualism

While Nehru had the strength to battle Hindu conservatives and push through measures which have benefitted millions of Hindu women, even he failed to navigate the intractable maze that was Muslim law. India’s Muslim personal laws are the most regressive in the world, lagging behind even Pakistan and Bangladesh, two other countries that inherited the same legal system that India did from the British Raj.

A UCC as a silver bullet in order to remove the worst provision of our personal laws might seem tempting but unfortunately appears to be unviable. From Nehru to Vajpayee to Modi, a whole gamut of governments have tried and failed. Of course, contrary to perception, the lack of a UCC doesn’t mean modernisation of personal law has stopped. As events have borne out, the progressive gradualism of the Indian system is taking effect. Sometimes this progress is painfully slow – even after the Danial Latifi judgment, many lower courts have failed to apply its principles – but it seems to be the only method of readdressal that is actually working to protect Indian women from their regressive personal laws.

The Shah Bano effect: How India is quietly modernising religious law even without a uniform civil code

 

[SwAggeR]

Uniform civil code is the only key to become super power by indians rest all problems solved

Just like Blasphemy law solved pakistan's every problem ??

No it will just be India's tribute to Jinnah's vision.

 

[ranjeet]

Another anti Minority move.

 

[Bang Galore]

The problem is arriving at the Least Common Denominator that would be acceptable to all.

Or make a liberal law that will upset a few people from every religion. I believe that is the way to go.

 

[dadeechi]

Or make a liberal law that will upset a few people from every religion. I believe that is the way to go.

That would be great if it can be achieved.

 

[Soumitra]

I thinks the govt should take this opportunity to atleast introduce UCC as a draft in the parliament. The "Seculars" will protest - no doubt about that and it cant be helped but it will show that Modi is firm in its commitment

and Inshallah we will have majority in RS by 2016-17 and we can push through these measures

 

[Soumitra]

Uniform Civil Code


Uniform Civil Code
-By Justice Markandey Katju

The issue of a uniform civil code has recently been raised. I am fully in support of a uniform civil code.
Article 44 of the Indian Constitution states : " The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India ". No doubt Article 44 is in the Directive Principles, and not the Fundamental Rights of our Constitution, but Article 37 states :
"The provisions contained in this Part shall not be enforceable in 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 " The Constitution was made in 1950, and 64 years have passed since it was promulgated, but Article 44 has till now been totally ignored, obviously for vote bank politics.
I have been raising my voice consistently whenever there was any atrocity on, or oppression of, Muslims, but on the issue of a uniform civil code I have firm views. In fact one of the reasons for Muslims in India remaining backward is that there was no modernization of their personal law.
In all modern countries there is usually one common law for everybody. In fact in India there is one common criminal law (I.P.C. and Cr. P.C.) for everybody, and the land laws (e.g. the U.P. Zamindari Abolition Act, 1951) for everyone. Nobody objected to that, though many of these laws are against the Muslim law. For instance, Muslim law provides for stoning to death for women committing adultery, but that would be illegal under the I.P.C.
The injustice in Muslim Law can be seen in the fact that a Muslim husband can divorce his wife by simply saying 'talaq, talaq, tqlaq', without ascribing any reason, whereas a Muslim wife cannot do so. She has to file a petition in court, which usually takes years to decide, and she must make out a ground (e.g.cruelty, adultery, etc).In all modern countries there is usually one common law for everybody. In fact in India there is one common criminal law (I.P.C. and Cr. P.C.) for everybody, and the land laws (e.g. the U.P. Zamindari Abolition Act, 1951) for everyone. Nobody objected to that, though many of these laws are against the Muslim law. For instance, Muslim law provides for stoning to death for women committing adultery, but that would be illegal under the I.P.C.
Thus there is discrimination against the wife in two ways :
(1) A Muslim husband can get a divorce immediately without going to court by immediately pronouncing a triple talaq or even sending a letter mentioning the triple talaq, whereas the wife who seeks divorce has to go to court and file a petition which usually takes years to decide
(2) The Muslim husband need not give any ground for divorce, he can divorce his wife whimsically or merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it. This is not only very unjust to the wife, it is also violation of Articles 14, 15 and 21 of the Constitution.

Article 15(3) of the Constitution states that there can be no law against women, but there can be a law in their favour. The Muslim law of divorce is directly contrary to Article 15(3).
I know of a case where a Muslim girl was married to a Muslim young man who had come from England to marry her. It was an arranged marriage. After the wedding in India the young man went back to England alone, saying that he will arrange for his wife to come to England, but instead of doing so he sent a letter of talaq within a month. The girl almost committed suicide.
When the Supreme Court gave a progressive judgment in Shahbano's case many Muslims raised a hue and cry against it, saying it was against the shariat That judgment said that a Muslim husband has to give maintenance to his wife if he divorces her. This was a humanitarian judgment, because who will support a divorced woman (who may have children) except her husband ? All over the world a husband has to give maintenance to his wife if he divorces her. Why then should it be different for Muslims ? Muslims should have supported this judgment, but instead most of them raised big a hue and cry saying it is against the shariat and Rajiv Gandhi, afraid to lose his Muslim vote bank, legislatively repealed the ruling.
I may give another illustration of the backwardness of some of the Muslim laws. When I was a Judge in the Supreme Court a case came before my bench from Orissa. In some village in Orissa there was a young Muslim couple with 3 children. One night under the influence of liquor the husband had a quarrel with his wife and said to her 'talaq,talaq, talaq'. Nobody else was present at that time, and nobody came to know of it. However, about a month thereafter the wife was indiscrete, and told a friend of hers about this, and this friend told someone else, and so on, until the Maulana of the local mosque came to know of it. He then declared that the couple were no longer husband and wife, and so could not be allowed to live together. At this a mob of local Muslims reached the couple's house and told the wife to get out of her husband's house as she was no longer his wife. She protested that she had 3 small children, but the mob would not relent. A petition was filed before the Orissa High Court, which was dismissed, and against that order an appeal came before my bench in the Supreme Court.
I observed in court that everyone in this country has to behave in a civilized manner, whether Hindu or Muslim. If the couple wants to live together, how is it anyone's business ? I then directed the police to give protection to the couple.
The Muslim law is that if a husband divorces his wife he cannot straightaway thereafter remarry her. After the divorce the woman must marry some other man, and the marriage must be consummated, and only if thereafter the second husband divorces her can the first husband remarry her. Is this rational?
A Muslim man can marry 4 wives, but a woman can, at a time, have only one husband. Now monogamy represents equality between man and woman, and this is the age of equality. So why should polygamy be permitted to Muslim males ? It may be mentioned that upto 1955 a Hindu male could have unlimited number of wives, whereas a woman could have only one husband. This law was altered by the Hindu Marriage Act, 1955, which provides for monogamy.
It can be seen that much of the Muslim personal law is totally outdated and inhuman, but it is not allowed to be changed due to vote bank politics.
I submit that those who have not allowed changes in the Muslim personal law have done a great disservice to Muslims. Retaining the outdated personal law has contributed to keeping Muslims backward.
Law has to change with changes in society. To insist that laws made 1500 years ago must continue in the 21st century is totally stupid and unrealistic.
Before ending I wish to say that I know that some Muslims may oppose my views, but that is wholly irrelevant fore me. I have always supported Muslims whenever I thought that injustice was being done to them, and my track record can be seen in this connection. In my opinion great injustice has been done to Muslims by not modernizing their personal law.

 

[SwAggeR]

Another anti Minority move.

Any ideas about how does it work in oldest surviving democracy USA or the so called embodiments of inclusiveness countries especially from where Antino Maino hails ??Do they too follow some twisted logic of inclusiveness ?? Is there different personal law boards or uniform law ??

As far as Australia is concerned it seems pretty straightforward about it.

Leave Australia if You Find Our Values Unpalatable: PM Malcolm Turnbull - NDTV

92% of Muslim women in India want oral triple talaq to go: Study - The Times of India

I thinks the govt should take this opportunity to atleast introduce UCC as a draft in the parliament. The "Seculars" will protest - no doubt about that and it cant be helped but it will show that Modi is firm in its commitment

and Inshallah we will have majority in RS by 2016-17 and we can push through these measures

I would like that this push from SC finally gains momentum . It has to be done at some point of time and there can't be any time better than BJP having majority LS. Cries and oomphs are expected but we can't ignore the directive principles of our constitution .