WHETHER a state should consider adopting common civil code, especially in countries where society is composed of people with different religious beliefs, and no dominion of a particular religious belief exists, as in India, is not only a debatable issue but is such that it endures legal and political consequences. Thus, there is a long drawn controversy among the academician and politicians and social thinkers of India who support their contentions on the basis that same is a constitutional mandate (ie, Article 44 of the Indian constitution) and others oppose on the ground that in order to accomplish the same, would in some way it would offend the ‘feelings and beliefs’ of Muslims respectively.
Dr Durga Das Basu, a retired judge of repute in India, is an enthusiastic promoter who pleads for a ‘common civil code’ for India and has even published a book supporting the issue in 1996. A code is a collection or compilation of various legislations, which relates to a particular legal subject matter, thus, a civil code refers to private laws of a society dealing with civil rights and obligations of inhabitants in a particular polity. Although considerable portions of this law have already been enacted which extended and applicable to the whole of India as well as other states that were within the then British India (Pakistan and Bangladesh), ie, Civil Procedure Code 1908, Evidence Act 1872 and Transfer of Property Act 1882 etc, but controversy rose as to the establishment of a common code regarding family or personal law in matters of marriage and divorce, succession, adoption etc. The Government of India Act 1915 read along with Article 372(1) of the Government of India Act 1935 resolved the above controversy of what a personal law is and provides that, ‘marriage and divorce, infants and minors, adoptions, wills, intestacy and succession, joint family and partitions’ are all matters that falls within their personal laws which parties have to abide in judicial proceedings.
The British India was partitioned on ‘two-nation’ theory based on two religions to substantiate the claim for separate identity of the Muslim community there seeking separate personal law for them. Although many of the constituent assembly in the beginning conceive and were of the opinion that in a secular state personal laws relating to such matters as discussed above (ie, marriage, divorce, succession etc.) could not depend upon religion, rather be based on the law of the land, and accordingly a common civil code is essential towards accomplishing accord and unanimity of a nation as preamble to the Indian constitution envisaged. But, many considers that nationalist leaders of India forgot the above background and pre-partition scenario detached themselves from supporting the cause of a common civil code, rather being influenced by politically motivated reasons (Muslims’ vote bank in India) for political gains and made the concept of ‘two-nation’ theory, a remnant of the past. Thus in the past, whenever the issue of a common civil code came forward, it was the Indian government who disagreed on the ground that to achieve the same, the sentiments of the Muslim community would be hurt and as long as the Muslims come forward by themselves, the execution of such directive is not feasible (as is evident from Independence day speech of the Indian prime minister, PV Narasimha Rao in 1995). Those who believed that such a stand of the Indian government is resonating and anti-national, indicate and refer some of the Indian supreme court judgements (as Mudgal vs the Union of India (1995) 3 SCC 635) to take steps towards enactment of a common civil code for all nationals in India, regardless of their religion, cast or faith on following pretexts:
That it is unjustifiable for Indian government, (for that matter any government having nationals from different religions) to discriminate between the Hindus and the Muslims, as even after the codification of personal laws of the Hindus through different legislations in 1955–56, replacing their traditional sacramental personal law and in matters of religious sentiments, they pointed out that Hindu personal laws in the matters of marriage, succession and inheritance also have divine origin much alike to the Muslims and the Christians. Hence, there is no justification to ignore provisions of Article 44 of the constitution of India just because of the Muslim sentiments.
That in a civilised society, religion and personal law does not have any obligatory link in between. Religious freedom of individuals has been guaranteed under Article 25 of the Indian constitution whereas; Article 44 isolates religion from social bonds and personal law. Often it is seen that religious rituals hinder human dignity and rights and thereby, severely interferes with civil and material freedoms leading to hinder autonomy of people. Thus, question of interfering with religious freedom (of any particular group) as guaranteed under Article 25 of the Indian constitution does not arise.
That a common civil code is significant; not only to protect the oppressed but also to promote national accord and unanimity, since only on the basis of religion, a community could not claim to remain as a separate body within a nation.
That there is hardly any justification for delaying such enactment of a common civil code throughout India, since these discriminations in favour of the Muslims on legal and constitutional questions are being used by political parties to pacify their sentiments to secure votes in national election.
On the other hand, those who are in favour of retaining the present status quo in Indian Republic argue and put forward:
That provisions of Article 44 of the constitution of India to be replaced as it creates discomfort towards Muslim feelings or they be exempted from its operation, or be exclusively under their personal shariah.
That it was adopted by the constituent assembly hastily, ignoring the reality that Congress leaders never sought to replace the personal law of the minority by a common civil code.
That they conceive that the provision of Article 44 of the Indian constitution has no value so long as it is not consented by the entire Muslim community, or they themselves do not come forward to adopt a common civil code to replace their personal law.
That the shariah is infallible and immutable.
That personal law founded on traditions and usages cannot be altered by legislation that is coercive against the wishes of the very community concerned.
That a social reform is such that it will be ineffective if imposed by legislation on a society which is not yet ready for its acceptance.
That provision of Article 44 of the Indian constitution is subject to Article 25–27 which guarantee freedom to a Muslim in exercising his faith.
That Muslim personal law is a part of their culture, which is guaranteed as fundamental rights by Article 29 of the Indian constitution.
That separate religious entity of Muslims of India should be maintained by deleting or emasculating Article 44 of the Indian constitution and direction provided in Mudgal’s case are beyond jurisdiction of the supreme court of India.
Be that as it may, three different thoughts thus prevail on the question of having a common civil code, one of such group suggests that a common civil code may co-exist alongside personal laws, others are in favour of replacing the very personal law altogether and the last group conceive that legislating a common civil code would adversely affect and in fact, deny freedom of religion of individuals (and likes to indicate that for such reasons framers of the constitution of India include Article 44 under directive principles of state policy rather than on fundamental rights). End of discrimination among religions (as indicated in Shahbano’s case) is the vital and moot issue in having a common civil code, but then it will certainly deprive the nation of its religious diversity and act against the embodiment of democracy and thus, fail to protect the intrinsic beauty of maintaining plurality of religions within a nation and proceed forward towards future.
Can it be said that having a common civil code is the only insignia of a progressive and dynamic modern state, especially in a homogeneous society made of heterogeneous contents and a society that believes in the philosophy of ‘unity in diversity’ and preaches tolerance and peaceful co-existence, as in Bangladesh? Unlike Europe and Latin nations (where a common code, both for criminal and civil system of justice, has for long been prevalent) countries of Asia having a society of mixed religious belief (like Singapore, Malaysia etc) made it convenient and suitable without a common civil code by bringing about amendments and enacting new statutes to accommodate their own needs.
To conclude, one set of ‘secular laws’ by unifying all personal laws of a nation is in fact, no solution. In this 21st century, countries are moving towards recognition of differences and we need to accept that neither mere existence of difference does imply discrimination nor is indicative of a durable democracy, as the Law Commission of India (after much research and field work) is in favour of having plurality of personal laws and advise that focus be on to end discrimination and social injustice to bring about synergy of provisions of family laws with gender equality, which seems to be an acceptable and affordable means to move forward.
Professor K Shamsuddin Mahmood is dean of law at BRAC university.
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