October 12th, 2008 — Politics, Society
Thus far, we have seen what the constitution and the courts say about a common civil code and also seen how it does not target any single community. One main sentiment that we have seen in our discussions that most of our friends expressed is the difficulty of coming up with a solution that is acceptable to all. Now, the main issue of practicality of coming up with such a solution was attributed to the cultural diversity of India and how in the world can a common civil code reflect the collective morality of the nation. Is a unified civil law possible only in countries with fairly uniform demographics or is it possible in a country like India?
Well, there is good news! We do not have to look far for that. Not many people are aware of the fact that the state of Goa has a unified civil code within the state called ‘Family Laws’ that is accepted by all communities – Hindus, Christians, Muslims and others. This Goan civil code is of absolute importance to the rest of India. The main feature of the Goan family laws is the concept of absolute equality. This set of laws is non-discriminatory to all regardless or gender, cast, ethnicity and religion.
In the rest of India, a divorced woman, be her a Hindu or Muslim, may not even be entitled for any support or maintenance and even if she gets some, she is allowed only a paltry sum of fifty rupees a month. However, by the Goan law, according to legal experts, men and women have equal rights in affairs of divorce, separation, share of couple’s property, succession, guardianship of children, gifts and adoption. This equality can be attributed to its roots of the original Portuguese family laws. that most notably, were carried over to their colonies very unlike how the British went about in their colonies.
Nonetheless, I should admit that there are some discrepancies in the Goan law like the one in which law sanctions a second marriage for the Hindu husband if the first wife has not delivered an issue till the age of 25 or (even worse) if she has not delivered a male issue till the age of 30. Nevertheless, once these ridiculous provisions are corrected, we can use the Goan Family law as a good reference or guidance while coming up with a unified civil code that is acceptable to all.
It is also to be noted that some Muslim fundamental clergies have tried to revoke this Goan Family law and demanded for the Muslim Personal law of the rest of India to be put in place. Yet, there was a counter movement against this and in the end the liberal Muslims were found to be in majority in Goa and the attempts by these mullahs to extend Sharia law to Goa were thwarted.
In conclusion, we should all work together to achieve the constitutional mandate of implementing a unified civil code in the country. We should all let go of the fears and be strong for this. It is not just about any one community. It is about enacting a legislation that is sixty years overdue. The leadership for this could well be taken by the Congress party who can take care of the concerns about minority rights, that they themselves always come up with, as an excuse for not conforming this guidance of the Constitution. Remember, Goa is a diverse state, with bigger minority populations than national average and still such a law has proven its merits over many many decades.
If this worked in Goa, can we not get it done anywhere else? Give me one good reason why we cannot make it work?
Sources:
1. Goa’s Civil Code (The Family Laws)
2. Goa: A success story of a unified civil code.
3. Goa’s Civil Code
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October 9th, 2008 — Politics, Society
We have seen in the first post that the constitution mandates a unified civil code and then that the courts have always asked the government to step up and fulfill the constitutional mandate. During the discussions, and also in the national political discourse, we can sense a shade of religion coming into the discussion. This communal overtone in the debates lead us to the next question: whether a uniform civil code would affect only one community alone. Let me explain how the truth could not have been farther from this notion.
There is a widespread perception among minority communities as well as among moderate Hindus that a uniform civil code would only change the Muslim personal laws. But, the truth is that when we rewrite these codes to come up with a modern, secular, progressive and equal code, it would affect the personal laws of all the communities as they exist today.
One aspect that all these personal codes have in common is that they are all gender biased, not just the Muslim personal law. The law governing the succession among Hindus is also unequal in the way it treats men and women. Even the Supreme Court has come out many times in pointing out this discrimination, especially about ‘Hindu Undivided Family’ system like the case of CIT vs Veerappa Chettiar, 76 ITR 467 (SC) when female members are also given the right of share to the property in the HUF. Similarly there will be changes in the personal laws of Muslim and Christian communities too.
This is evident that this true reform is being resisted by the forces of status quo of all the communities regardless of the religion. As a modern secular country, India simply cannot afford to have these divisive sets of laws especially when the inter-religious marriages are becoming increasingly common and the current laws put them in a twilight zone. For example, the Indian Christian Marriage Act of 1872 makes no mention about the inter-religious marriage. However, Indian Divorce (Amendment) Act passed in 2001 prohibits the conduct of a marriage between a Christian and a non-Christian in a church.
This is exactly what is wrong with the current system. An ideal unified civil code would allow a marriage between a Christian and a non-Christian from a legal perspective while leaving the decision whether to conduct it in a church or not should be left to the individuals and the church involved. So, the basic point in a uniform civil code would be to consider all the citizens of India as equal from a legal point of view while leaving the customary and ceremonial decisions to that particular community, whether it is a Christian, Muslim or Hindu community.
This answers the question that my friend asked about whether a Muslim custom of remarriage would be legal or not. The ideal law would make it legal from a registrar’s point of view, while leaving the decision to the authorities at the Muslim community to decide whether they should allow it in front of their beliefs.
Thus it is clear that a modern, secular, progressive and equal civil code would not affect only one community. However, it will change the society in a way that transforms the discrimination and exploitation that is happening now. Since this would change the status-quo of all communities, we should expect opposition from all of them when such a code is implemented. We should all work together, Hindus, Muslims, Christians, Parsees and all other communities to come together and form a code that is acceptable to all the communities. We are Indians, we have a rich heritage of coming together for the common good, and we can do it. Can we afford not to?
Sources:
1. CIT vs Veerappa Chettiar, 76 ITR 467 (SC)
2. Indian Christian Marriage Act - 1872
3. Indian Divorce (Amendment) Act - 2001
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October 5th, 2008 — Politics, Society
The term civil code is used to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance. The call for a uniform civil code for India has been gaining traction from all avenues of the society. As a modern society, we really need to come up with a unified civil code for leading our country to the next millennium and beyond.
However, there is a big controversy about the topic whenever the issue comes up at any venue. So what is the true nature behind all these? Let us examine the situation starting with Indian Constitution which is and should be the basis of all laws in India. The article 14 of the Indian Constitution is as follows.
Right to Equality
14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Then the question arises, why is that there are different sets of laws that govern different people, all citizens of India, mind you. Let me explain the current state of laws in India. As far as the Criminal Laws are concerned, everyone is subjected to the same code, known as the Indian Penal Code. However, the civil code of India is a mess of different sets of laws according to what religion that they follow. We have a) The Hindu Law (which covers Sikhs, Jains and Buddhists), b) Muslim Personal Law, c) Christian Personal Law and Parsee Civil Law. This itself is a blatant violation of the article 15 of the Indian constitution that says
15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
There are inherent inequalities built into these various civil codes. A classic example is that the Muslim Personal Law allows the Muslim women to inherit only half of that of men. One does not have to be a constitutional lawyer to see that it violates the 15th article. If you go into the marriage and divorce areas, these different civil codes take a quick turn to absurdity. So, the call for a uniform civil code asks for unifying all these different personal laws and coming up with a single secular civil code that is applicable to all the citizens of India, regardless of sex, caste or religion.
As human beings and citizens under the same tricolor flag, and abiding by the same constitution, I feel that we all should be subjected to the same laws. This is the only way that we can fulfill the vision of the founding fathers of the country as they were drafting the constitution to enable this young country with tens of thousands of years of rich and varied heritage to set forth on a path of freedom and equality so that we may be called as the best country ever in history. Are you still unconvinced that the constitution asked for a unified civil code? Well have a look at the Article 44 of the constitution that says:
44. The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.
So, there is no excuse for denying all the citizens of India, what is promised by our constitution.
Source : Constitution of India
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