ONE NATION ONE LAW
India is an ancient civilisation governed by customs and traditions. Sometimes, it is called the museum of various religions, castes, cultures and ethnic groups. If we go down the ancient period we find that India was governed only geographically and not politically. Religion played an important role in the political life of the nation and it also acted as a guide for the ruler and the ruled. Hence the laws enacted at that time formed part and parcel of the religion. However, with the advent of the British rule, our nation entered the phase of modern history from the medieval one. The British brought new things and new thoughts – Western education, idea of secularism, a constitution containing the rules and regulations for the people and the government, political institutions like parliament and the political thoughts like Democracy, Supremacy of the Constitution, Liberty, Equality, Justice, Rule of Law, etc. They formulated Indian Penal Code, i.e., codifying criminal laws in 1860. Thus, it was the first attempt to cover all the citizens of India under one law. But the civil sphere of life of all the people was left untouched. As a result of these developments a wave of nationalism arose in the minds of the people of India and with the enactment of various legislations like Government of India Act 1935, India for the first time became a nation politically. With freedom in 1947 and enactment of the Constitution in 1950, India was born as a nation and the Constitution, the supreme law, occupied a supreme position in the political life of this nation.
Based on the ideals like equality, rule of law, justice, liberty, etc., our Constitution made enough provision to uphold these ideals. It is the duty of the government to enact legislation based on these principles. By keeping this in mind criminal law is made applicable to all the citizens of India irrespective of race, religion, caste or sex. But considering the vast diversities in India and the ambiguous condition prevailing at the time of Independence and the communal tension rife in our country, no uniform civil code for all the citizens was made. Thus, at the time of Partition one law was enacted partially throughout India. But in the light of our experience during the past 51 years and rigidity of religion and its texts, various problems were created challenging the philosophy of the Constitution, thereby increasing the social tension in our society. However, the Supreme Court as the guardian of our Constitution asked for implementation of a Common Civil Code while giving the judgment in the Shah Bano Case, 1986.
Common Civil Code and Freedom of Religion
The concept of Common Civil Code occupied a position in the Directive Principles of State Policy, as provided in Article 44 of our Constitution. While Freedom of Religion is guaranteed in the Articles 28, 29 and 30 as Fundamental Rights, the government and its legislation promoted the goals of the Constitution and the people and their freedom. But no one should forget that Fundamental Rights are not absolute and can be subjected to reasonable restriction in the interest of the principles of the Constitution. Common Civil Code does not mean the legislation of majority community dominating the minority community. Hence the identity and content of the Common Civil Code were not defined and it was kept in the Directive Principles. Therefore, the ‘Range’ of the Civil Code was not defined and very wisely it was left to the future governments and the socio-political-economic conditions by the founders of the Constitution.
Nature of Indian Society
India is a multi-religious and multi-cultural country having various sub-nationalisms. It is a very much complex and unique society in the world. Hence the problems of this society are multi-dimensional. This was the main reason behind keeping the Common Civil Code in the Directive Principles, considering the religious freedom and religions covering all the aspects of life which the government’s legislation does not cover. Also the majority of Indian people are illiterate and uneducated and can be driven in any direction by the political leaders for their own benefit. There are loopholes in the Personal Laws and many, of such laws have become outdated. Such provisions are misused by various individuals in their own interests which violate the basic principles of the Constitution as was witnessed in Shah Bano case 1985, Sarala Mudgal case 1994, Ameena case, etc. All these factors gave rise to problems in the changed social conditions with no solution.
Religion is a way of life and considering the uncertainties in the human life, it will influence the human beings till the end of the world. During the first phase of development of human beings, religious texts tried to give solution to the problems in the society. There were various prophets and saints who preached to the people and their preachings took the shape of a code of conduct. Laws or rules are for maintaining and for proper functioning of the system. So, these laws must reflect the existing social conditions. But due to rigidity, they created problems instead of providing a solution and failed to preserve the interest of human beings. Thus, it makes the society stagnant and hampers the development or progress in the society. “Change in the soul of development” and in the absence of it everything becomes standstill. The question arises who will take the initiative in order to resume the process of development in the society? Who will start social reforms? What is the duty of the government and of the people? Does the government have any right to change the personal laws in order to make them suitable in the given conditions? If yes, then how and where? For answering such questions, we have to analyse the role of the government.
It is true that personal laws are part of religion and freedom of religion is guaranteed in our Constitution but there is also a provision of Common Civil Code in Directive Principles. If we think without going deep into the content of the above statement then we can say that Government has no scope for action in this matter. But as the duty of the government is to uphold the basic principles in the Constitution, government’s role comes into picture when there is violation of such principles by the personal laws. At the same time legislation of Government must overrule the Personal Laws to keep pace with social change. Thus, all these matters in the personal laws which are in conflict with the philosophy of Constitution come under the sphere of the Government’s legislation. There are matters like right to property, law of inheritance, laws regarding marriages and divorce, which are to be separated from the religion and in order to prevent the enactment of outdated laws and to plug the loopholes in these laws there has to be a common law or one law for the citizens of India.
In such matters, Government must be proactive rather than reactive. It is the foremost duty of the government to initiate socio-political change through proper legislation. But for enacting such legislation, political will is necessary because it is going to be opposed by religious bigots and fundamentalists. And if the government is determined then it has to be reflected through legislation. Government must take the initiative to transform a traditional society into a modern one because it is the Government which can create the confidence in the minds of the reformists and radical people. Such radical steps are always opposed by the fundamentalist forces because they do not want to lose their grip over the society.
Reforming the Society
By the enactment of the Hindu Code 1955, all Hindus were covered and treated equally in matters like right to property. It was the step taken by government by which it could reform the Personal Laws of Hindus. It was opposed by all the fundamentalist Hindus, but the strong political will shown by the Government won the day.
In Maharashtra, the Act regarding Registration of Marriages covers both the Hindu and Muslim communities in the matter of marriages in their personal laws. There is not any provision of compulsory registration for the people in both the communities, i.e., Hindu and Muslims to get the marriage registered with the Registrar. The Christian and the Parsi communities are exempted from the sphere of this Law as such provision is there in their own personal laws.
They will prevent the people in the society to misuse the provision in the personal laws. But still divorce part is left untouched. During its enactment, there will be a sure opposition from the fundamentalist forces and the Government has to show political will while upholding a righteous cause. In fact, it is a step towards a Common Civil Code. If we consider the Muslim countries like Indonesia, etc. then the laws in the above matters are not based on Shariah. But paradoxically in secular India we have those personal laws.
This is the issue which is related to the status of women in the society. Ours is a male-dominated society and women are always given inferior position. For the healthy development of society, men and women must be treated equally because both are the two wheels of the society. If religion fails to do so then it is the duty of the government to take steps in that direction. It is lamentable that though women have been given special position and treatment, in reality their condition is the worst of all.
Only by concerted action, the Government and the people can make a uniform law. But this is going to be opposed by fundamentalists and even the politicians as there is a danger of losing their grip over society. For the successful implementation of political reform it must be backed by social reform. Here Government alone cannot succeed but needs to be supported by the people. NGOs can play an important role as they can reach and understand the people more easily than the Government. The reformist movements like Muslim Satyashodhak Samaj must be backed by the educated people for the success of such movements, and must reach the grass root level in the society.
Efforts should be made in universalising primary education. Our education system must be reformed in order to create scientific outlook among the students so that they can differentiate between rational and irrational, proper and improper and valid and the invalid.
There is a guarantee of equal protection of law and equality before the law as given in the Articles 20, 21 and 22. Hence we must have one law governing all the people in our society irrespective of their religion, race, caste or sex. Formulation of such a law is one of the goals before our government which must reflect through its policies and legislation and uphold the supremacy of philosophy of the Constitution.
Really ‘One Law’ is the dream of our nation. But this cannot be implemented overnight as the people are emotional in respect of their religion. Such a step can create discontent among the people unless they are taken into confidence. We should not forget that social reform is an evolution and not a revolution. So, enactment of one law will take time. But in the light of our experiences, either the personal laws are to be modified to suit the given social condition or government should go on separating all the aspects of civil law which contradict the philosophy of the Constitution. To inculcate the essence of optimism among the people in this direction one can read the following lines.
“In the core of dark and deep nights,
There is a ray of light which is bound to come in our life. A time will come
When all our dreams will come into reality And we will be the master of our destiny But it will take time.
Till then our patience will be tested, And determination will be checked And upto that time
We have to continue our journey Keeping in mind
We will succeed and success will be ours.”
Having said this, in view of rising population especially of the major minority community, which is proliferating at a very past pace, there is need to enact a common civil code; leaving all pretensions to so-called secularism. There cannot be two laws for the citizens within the boundaries of a country. Those who wish to have multi-marriage may jolly well go to the sacred land viz., “Pakistan”.