BY TAHIR MAHMOOD
Once again, as in 1998, the BJP’s election manifesto talks of a uniform civil code. The one in 1998 had said that the Law Commission would be asked to formulate such a code, but in the six years of its rule, the party made no such reference to the commission. This time, it simply says that the party “reiterates its stand to draft a uniform civil code”. What strategy, if at all, will be adopted if the party comes to power again is anybody’s guess.
Despite the Constitution’s call for a uniform civil code, the system of community-specific personal laws remains the order of the day. Muslims, Christians and Parsis have their respective personal laws. And what is inaccurately called “Hindu law” is actually the personal law, codified and reformed, of four communities – Hindus, Buddhists, Jains and Sikhs. This system of diverse personal laws has enjoyed state protection from the earliest years of the post-Constitution era. In 1954, Parliament had enacted a secular matrimonial law, the Special Marriage Act, but it was soon followed by a separate Hindu Marriage Act.
A Hindu Minority and Guardianship Act was superimposed on the old Guardians and Wards Act of 1890. An Indian Succession Act had been in force since 1925 but a Hindu Succession Act was enacted in 1956. Fiscal and agrarian laws continued to extend to Hindu undivided families, and special concessions were not available to such families among other communities.
There have been instances of setting the clock back. The Caste Disabilities Removal Act of 1850, ruling that conversion by a legal heir would not disqualify him from getting his share by inheritance, was tampered with by the Hindu Succession Act, which laid down that children born to an heir after his conversion would not get a share unless they reconverted to Hinduism.
The Special Marriage Act had extended the secular Indian Succession Act to all those marrying under its provisions. An amendment made in 1976 ruled that this would not be the norm if both parties to a civil marriage were Hindu – in that case they would continue to be governed by the Hindu law of succession. Clearly, there has been from the very beginning an undeclared state policy of keeping the constitutional goal of a uniform civil code in perpetual abeyance, and of not only letting the system of separate personal laws continue, but also of strengthening it through discriminatory legislation favouring particular communities.
The 2014 BJP manifesto asserts that “there cannot be gender equality till such time India adopts a uniform civil code”. The four Hindu law acts of 1955-56, which many see as a model for the future uniform civil code, are replete with gender inequities, as well as religious bias, which nobody ever talks about. Both run contrary to the dictates of international human rights laws and the Indian Constitution.
If, for instance, a Hindu mother becomes a Sikh, she remains worthy enough to retain custody of her child, but not if she embraces Christianity. In that case, her child has to be placed in the care of a Hindu relative. In cases of inheritance to a deceased Hindu survived by both his parents, only the mother gets a share – the poor father is totally excluded, not only by her but also by many preferential female heirs of the deceased.
How the absence of a uniform civil code precludes the state from eliminating such glaring inequalities from modern Hindu law is beyond comprehension. The personal laws of all other communities, especially the Muslim law as popularly understood in India, are also full of discriminations based on religion and gender. But unlike those classical laws, the four Hindu law acts of 1955-56 were not handed down by religious figures from a distant past. They were enacted by the parliament of a secular country five years after the enforcement of its Constitution, and this makes a big difference.
I am not allergic to a uniform civil code but am convinced that if community-specific personal laws are to be replaced with fully secular and gender-neutral laws, in the fitness of things, the lead must come from the majority community. The Supreme Court had honoured me by citing my opinion in its celebrated Shah Bano judgment of 1985, but had added a rider: “lead or no lead, the state must act”. With respect, I disagree.
The state cannot discard the personal laws of the minorities while retaining a separate set of laws for the majority community that is full of religion-and gender-based inequalities. A uniform civil code is no magic formula for curing social ills. The purpose is to cleanse the country’s family laws of religious bias and gender inequalities. To achieve this goal, all personal laws should first be suitably amended. Logically, we must begin with Hindu law.
-the writer is former chair of the National Minorities Commission and former member, Law Commission
-courtesy: The Indian Express