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Walking away from the code

Separate personal laws for communities are antithetical to a uniform civil code.

Written by Tahir Mahmood |
Updated: October 20, 2015 12:04:23 am
Illustration: Pradeep Yadav. Illustration: Pradeep Yadav.

Was it a reprimand or an exposé? “There is total confusion… if you want to have a uniform civil code, have it; you want to follow the uniform civil code, follow it. But you must take a decision soon,” a minority community judge of the Supreme Court recently told the government. The remark began with a big “if”, clearly indicating what the judge had in mind. Following judicial decorum, he did not say it in so many words but the message was clear. The “total confusion” he spoke about hinted at the rulers’ speech-action dichotomy on the issue. After loudly talking of a UCC, the BJP has taken no initiative to enact it since May 2014 or when it was the leader of a coalition government for six years since 1998.

“It is a very sensitive issue. It needs very wide consultation. Communities, even across party lines, and even various organisations need to have a wider consultation” — this is how a minister responded to the judge’s remark. So, as far as this matter is concerned, what is the difference between this government and its predecessors? Both would wait for a “consensus” on the issue, knowing that it will never come about. In fact, no government has been serious about a UCC and all have taken steps in the opposite direction.

In 1998, as chair of the National Commission for Minorities, I was approached by some Sikh leaders demanding their community’s exclusion from the “Hindu” personal laws of 1955-56. I did my best to convince them that those acts codified family law for four different communities and had been named after the predominant one among them for the sake of brevity. Six years later, a Sikh chairman of the commission — a BJP politician and Rajya Sabha member — moved a bill for amending the old Anand Marriage Act, 1909, so that his community could register marriages under that law and not under the Hindu Marriage Act. Ironically, the bill was eventually passed by the UPA government. In 2012, a Sikh woman filed a writ in the Supreme Court against the application of “Hindu” marriage law to her community and the court noticed the government posing a question: “Can you call it the Buddhist marriage act and apply it to the other three communities?”

Indiscreetly using the word “Hindu” in the titles and provisions of the four acts of 1955-56 has, for four different communities, violated the spirit of the Constitution. The explanation at the outset in each act that wherever the word “Hindu” appears in its provisions, it includes Buddhists, Jains and Sikhs was obviously prone to creating misgivings.

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Now, in 2015, the BJP government in Maharashtra is going to enact separate Buddhist marriage and succession laws. Defending the move, a Buddhist member of the legislative council has said, “The Hindu Marriage Act says that unless a saptapadi is performed, the marriage cannot be recognised, while we don’t have saptapadi in Buddhist marriages at all.” This statement exposes the legal illiteracy in this country. The fact is that performing saptpadi is not mandatory under the 1955 act and any marriage may be solemnised “in accordance with the customary rites and ceremonies of either party thereto.” So Buddhist marriages can well be solemnised under the act as per Buddhist rites and the community need not seek a separate law, at least not for this reason .

Going by the constitutional provision for a UCC, enacting separate laws for Sikhs or Buddhists is a step in the opposite direction and strengthens other communities’ demand for the retention of their personal laws. There is a better way to respond to the prevailing misgivings. As the four communities governed by the 1955-56 acts are listed in their opening provisions, just delete the word “Hindu” from their titles and in the inside provisions replace it with “every person governed by this act”. With these innocuous changes, the acts should be perfectly acceptable to Buddhists and Sikhs.

By making other changes necessary to completely secularise the four acts, these may, in fact, be developed as the framework for consultations on a UCC. But, then, who  is interested in such a code?


The writer is former chair of the National Commission for Minorities

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First published on: 20-10-2015 at 12:04:20 am
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