“The differences of race and skin, of mind and body, and of climate and nation are transitory. In the same way, essentially, all religions are equal. If you read the Quran you must read it with the eye of the Muslim; if you read the Bible, you must read it with the eye of the Christian; if you read the Gita you must read it with the eye of a Hindu,” remarked Mahatma Gandhi.
In 1955, legislation was enacted to codify customary Hindu laws of inheritance, partition, and marriage, all of which came into effect in the year 1956. Due to the painstaking effort by legislators to incorporate the customary values in these law, the present form of Hindu Laws came in to existence, despite stern opposition from Orthodox Hindus.
Every time it has been attempted, a pragmatic approach to codify personal laws, namely the ‘civil laws referred to in Article 44 of the Indian Constitution, has met with sharp criticisms. The Uniform Civil Code is not only a concern for Muslims or other minority sections of the society. Rather, it encompasses all castes, linguistic groups and aims at bringing all communities under one roof.
The Supreme Court emphasizing Article 25, which provides for freedom of religion, has observed that, “the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as a part of the profession or practice of religion.” A further observation that, “Article 25 is an article of faith in the constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to finds its identity under the country’s constitution.”This judgment got rid of the confusion as to what constitutes religious freedom under the fundamental rights of the constitution.
Difficulties in Implementing UCC
The fundamental rights under the Indian constitution have been diligently drafted. Article 13 keeps a check on any kind of infringement on the fundamental rights of every citizen. Similarly, Articles 25 and 29, speak about the freedom of religion and protection of interest of minorities. These articles are thorns in the flesh of the implementation for bringing about a Uniform Civil Code (Article 44).
The state has priorities in realizing the goals set out under the Directive Principles of State Policy. For instance, to raise the standard of living, improving public health by prohibition of liquor, ensuring food security and to promote the educational and economic interests of the weaker sections of the society. However, without any shadow of doubt, the state has got a bigger responsibility to achieve the notion of a Secular state, as enshrined in the preamble of the constitution.
The Supreme Court had tested the applicability of Sec 125 in Bai Tahira Vs Ali Hussain Fissali Chothia (much prior to the infamous Shah Bano Begum’s case).which provision of law provides for maintenance of wives, children and parents and it was held that, for providing maintenance toa divorced wife, no husband can claim under Sec.127 (3) (b) of the Cr.P.C, an absolution from his obligation under Sec.125 of Cr.P.C., to provide maintenance, except on proof of payment of sum as stipulated by customary or personal law, whose quantum is more or less sufficient to do duty for maintenance.
This ruling by the Supreme Court had generated a mixed reaction among the Muslim community as it was seen as a stigma to the Muslim personal law of maintenance. It will not be out of place to mention here that, Sec 127(3)(b) of the Cr.P.C, which provides for an exception towards maintenance of a divorced wife, by a husband, under the customary or personal laws, was evidently a concomitant effort put in by the then Prime Minister Smt. Indira Gandhi. This measure was taken by the then Prime Minister solely to protect the interest of minorities.
Further, the judgment in Shah Bano’s case created a furor among the Muslim community, and at that time, the Minister for State for Environment, Z.R.Ansari, lambasted the Supreme Court and dubbed the court’s verdict in the Shah Bano’s case as ‘prejudiced, discriminatory, and full of contradictions’. He further remarked in his address in the Lok Sabha that, there is room for change in personal law if the change was for the better, but change which struck at the roots of the Koran was not permissible.
The turmoil over the judgment eventually led to the enactment of The Muslim Women (Protection of Rights on Divorce) Act 1986, which was after the decision taken by the then Prime Minister Mr. Rajiv Gandhi, who heard the grievances from the Muslim community with regard to the flaws in the Judgment, which were committed while interpreting the principles in the Koran, and the Prime Minister finally in a fair manner addressed to resolve the problems of the minority community by passing the said Act, and gave a quietus to the entire issue.
Arriving at an Amicable Solution
No community or religious denomination should hamper the process of any rule or law, which has a rational approach to the existing personal laws, whether be it for providing maintenance to women after divorce or for prohibiting from taking dowry at the time of marriage. In other words, change of laws that are progressive in nature should always be welcomed by any religion. The core issue on hand is that, whether a uniform law, comprising all the civil laws can be enacted for inheritance, adoption, partition, but not for matrimonial laws.
As far as our country is considered, each religion branches out to various sects and schools of thought, which in turn has got its own set of principles and dogmas, and framing laws with all these disparities, in line with the sacrosanct beliefs and practices of each community, analyzing the intrinsic and extrinsic factors to be considered, and also with customs forming a source of law, would be difficult, to say the least.
Apart from this, the religious institutions and boards established for educational, charitable and other communal purposes, for each and every community are being administered in line with the respective religious principles. Nevertheless, the state has to take instrumental efforts for the welfare of women at a larger scale, which indeed is the need of the hour for redemption of indigent and hapless women from the lurch, and that could be possibly achieved through a harmonious and scholarly approach to the sensitizing issues, as far as each and every community is concerned, in order to avoid later repercussions which might halt the whole process of promotion of women welfare measures.
Any issue arising out of the religious practices, beliefs, personal laws of any community can be amicable settled only by way of stepping into the shoes of each communities’ problem, rather looking at it from a bird’s eye view, and moreover, it has to be borne in mind that, any law or rule that encroaches upon any religious practice or laws held to be sacred will be excoriated and will end up only in troubled waters in view of the freedom guaranteed under Constitution. Given the nature of Art.44, which is more of a Pandora’s Box, the final call with regard to bring about an Uniform Civil Code, largely rests with the opinion of the communities, only based on that the State can take a call, in order to arrive at an amicable solution.