I received a questionnare from the chairman of the Law Commission of India recently. The fifth question in it was: “Should the uniform civil code be optional?” In this article, I elaborate the answer I gave the Law Commission.
I said those who are against the uniform civil code (UCC), whether on the basis of religion or on grounds of deep-rooted customs of the so-called Adivasis, should be given a limited option. The limited option can’t be an absolute option, but only a qualified option. The limit, I proposed, should read like this: “Those who are opposed to a UCC may be given an option to not follow it. But in that case they will have to forego their right to vote in the elections to the state assemblies and Parliament.” The reason is simple.
Article 44 of the Constitution says that “the state shall endeavour to secure for the citizens a unifom civil code throughout the territory of India”. The word “shall” is important. It connotes that it is mandatory for the state to take steps to have a UCC. Till now no government has taken even a small step in that direction. The present BJP government deserves praise that it has decided to abolish the practice of “triple talaq” prevalent in the Muslim society.
It is true that Article 44 is included in Part IV of the Constitution, which states the “Directive Principles of State Policy”. It is also mentioned that the provisions contained in this part shall not be enforceable by any court of law, but the same article — Article 37 — further states that “the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws”. As stated above, no government in the past cared for this most benevolent principle of governance, that is, to have a common civil law.
The state legislature and Parliament are the creations of our sovereign Constitution — Article 168 gives sanction for state legislature and Article 79 constitutes the Parliament. Therefore, those who do not want to be governed by Article 44 will forfeit their right to vote in the elections to the state legislature and Parliament. No one shall be allowed to have a selective attitude about the Constitution.
However, they will remain citizens of this country and, therefore, will be entitled to civic amenities. For this purpose they can contest and/or vote in the elections to the local bodies, that is, village panchayats, zilla parishads, muncipalities or corporations as the case may be.
I am of the firm opinion that common civil law, like the common criminal law, does not infringe on any religion. I am told that in the state of Goa, common civil law is prevalent and in that state even Muslims live as Muslims. Similarly, Muslims will remain Muslims in Bharat even if there is a common civil law. But if some sections of Muslims want to follow certain obsolete practices, they will have to pay a price for that. I hope, except a few political parties that follow vote-bank politics, no one will mind this limited option.
The government, instead of getting entangled in the intricacies of various modes of inheritance, should immediately introduce a bill to enact a common law of marriage and divorce. This law will solve the problem of “triple talaq” as well as address the discrimination against Christian women seeking divorce.