Civil Code or Gender Justice?
By Moderator, India
09 August, 2003
Bhanu Mehta in an eloquent article titled 'Obscuring the
real issues' published in 'The Hindu' pointed out that the
argument by the Supreme Court that the Uniform Civil Code
has something to do with the national integration is 'morally
and legally appalling'.
The heated debate
on Common Civil Code that one comes
across today makes it appear that the greatest
problem faced by India is nothing but the lack of a Common
Civil Code.Political propaganda has obscured the fact that
the rest 99 % of the laws in the country is 'common' for all
and it hasn't made any difference.Rajeev Dhawan,leading
Supreme Court lawyer has pointed out 'India already has
a 'uniform civil code'-reputedly the best in the world.
The Contract Act,Transfer of Property Act,Evidence Act
and the Civil Procedure Code and the laws relating to torts
are common for all citizens.
The controversy as rightly pointed about by Rajeev Dhawan
is about 'codification of personal laws'.Personal laws imply
laws relating to family like marriage,divorce,inheritance,
adoption etc. As far as marriage is concerned ,any Indian
citizen is free to get married under the Special Marriage
Act which removes many of the restraints under the personal
laws.Even those who make the biggest noises about the
Common Civil Code have not opted to undergo a marriage
under this law.India being a country with diverse religions,
cultures,castes and myriad other social formations and
affiliations,people prefer to stick on to their traditions and
practices when it comes to their private lives.People
continue to marry from their own group.
Ironically those who speak of the Common Civil Code have
not been honest about gender justice.No one is really
interested in the Women's Reservation Bill.The Hindutva
forces have been making a lot of hue and cry about Uniform
Civil Code.However they have been seen promoting the
Sati-Savithri imagery.Some of the statements from the
Sangh parivar leaders have been relegating women to a
secondary role.Some of the BJP leaders have been seen
The concentration ought to have been on the empowerment
of women,enforcement of equal educational and employment
opportunities and so on.The atrocities against the women
are increasing by the day.The Gujarat episode showed
the Hindutva forces using assault and rape as a weapons
against women of the minority communities.It is surprising
that people don't want to see these as the real threat
to 'national integration'.
Technically speaking ,are all the criminal laws uniform all
over the country for that matter? The answer is a big no,
especially when it comes to the minor laws.For example the
possession or consumption of alcohol or beef may be an
offence in one state but not in another.
If the people of India were all devoid of religions and their
attached customs and traditions then uniform laws related
to marriage,divorce or divorce would have been easier.
What the legislators could do is to make laws like Special
Marriage Act where the parties could make the choice.
The courts have ample power to strike down any element
of the current personal law which they feel is discriminatory.
The Christian laws have indeed been changed drastically
by judicial legislation.Thus the Christian divorce laws,
property rights of women and laws relating to wills
have been made non-discriminatory.The adoption laws
are also expected to be changed in this manner soon.
Even without any
specific legislation,the Indian courts
can strike down any law that is un-Constitutional.
The courts need not pass the buck when the cases
come before them.It is also not the duty of the courts
to do guess work on what will usher in national integration
and what will not. We are reminded of the judgment
in the Best bakery case which lays the blame for the
riots on Britishers who left 50+ years ago,the reservations etc.
The talk about Common Civil Code or the law to ban
cow slaughter are rather clever ideas to divert attention
of the public from the real issues.National unity is
under threat from divisive communal and majoritarian
forces.Dispensation of justice ..equitable justice at that,
would ensure national unity than any law written on