India Tomorrow
NEW DELHI—Jamaat-e-Islami Hind (JIH) has said that any imposition of a Uniform Civil Code to the exclusion of faith-based and customary practices in a multi-religious and multi-cultural country like India would not only be undesirable but also pose a threat to the very fabric and cohesion of society.
This is stated in the letter addressed to Member-Secretary of the Law Commission of India in response to the public notice soliciting views regarding the subject matter of the Uniform Civil Code.
In the letter signed by JIH’s Vice President Malik Motasim Khan, it was underlined that any process of reform or review of personal laws would only be sustainable and least disruptive if it was led from within.
The letter added that any imposition of reforms by way of legislative diktat would cause unforeseen disruptions, and may prove to be counter-productive to achieving the aims of justice. It would be “plainly violative of the right of an individual to be governed by the call of his/her conscience.”
JIH, ‘as one of the largest Muslim organisations in India’ advised the Law Commission to uphold its previous stance and recommended to the Government of India that it should abstain from any misguided attempt to interfere with the personal laws as it could potentially harm India’s cherished ‘Unity in Diversity’.
The letter mentioned that the 21st law commission had conducted a similar exercise between 2016 and 2018, following which it had come out with a detailed Consultation Paper which concluded that the enactment of a Uniform Civil Code (UCC) was “neither necessary nor desirable”.
The letter has reproduced a finding of the 21st Law Commission which is as follows: “Resolution of this conflict does not mean abolition of difference… Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination but is indicative of a robust democracy.”
Mr. Khan stated in this letter that while they had certain reservations with regard to some of the recommendations laid out therein, “We also believe that the said document could have formed the basis for any further deliberation around the issue.” It quoted its clarity on the question of pluralism in Indian society, assuring that any attempt at formulating a Uniform Civil Code would not proceed with an intention to abolish the differences of faith and belief of various communities.
Against this backdrop, JIH’s statement expressed its surprise over a fresh exercise being carried out in a manner that seemed to disregard the findings of the document prepared by the previous Law Commission.
The letter alleged that the Consultation Paper seemed to have been set aside and completely ignored in the official discourse around UCC.
The letter questioned the timing of the UCC exercise chosen by the current Law Commission. It says, “With less than a year to go before the general elections, any outcome of this consultation is all but certain to cause a political controversy, as already evident from the manner of reactions elicited by the publication of the Commission’s public notice.”
Mr. Khan said that the Law Commission could not claim to be stoically unaware of the contentious nature of the issue undertaken by it for deliberation, as well as the manner in which certain political actors could deploy it as a lightning rod for polarisation.
He added that any serious deliberation on the question of reform of personal laws needed to be undertaken with sensitivity and care that allows for a nuanced and impartial consideration of its myriad underlying issues.
“We must state with regret that the timing and manner of the Law Commission’s public notice and its consultation process do not inspire our confidence in the Commission’s ability to lead such a considered discussion”, he said.
Question of Uniformity in the civil code
The letter claimed that the precise meaning of a ‘Uniform Civil Code’ is vague and unclear. In official discourse, it is often articulated as a legal code that would operate to the exclusion of all religious and customary laws in the domain of matters relating to marriage, divorce, succession and the like.
However, it is not at all clear that this was the meaning envisioned by the framers of the Constitution in Article 44, which only lays down that the state shall “endeavour” to “secure for the citizens a uniform civil code”.
The letter says that the Constitution was silent on important questions regarding the nature and scope of such a code. The letter raised many questions like, will it be mandatory or voluntary? “Will it prohibit the exercise of all prevailing religious and customary laws and practices, such as the civil and taxation laws governing the Hindu Undivided Family, or will it be in the nature of a law like the Special Marriages Act, 1954 which only applies to those who register under it?”
The letter reproduces a passage from Dr B.R. Ambedkar’s address to the Constituent Assembly on the question of the Uniform Civil Code which says: “It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary… so that the fear which my friends have expressed here will be altogether nullified…”
Mr. Khan said that until such time as the law commission or other relevant body clarified such outstanding questions, it would be impossible to provide a fair and comprehensive opinion on the question of UCC.
He cautioned that the idea of Uniformity contradicts India’s diverse and plural social, cultural and religious heritage, as well as the Constitutional ethos of ‘Unity in Diversity’.
The letter mentions that India is a multi-religious and multi-cultural society, where various communities follow diverse religious beliefs, customs and practices in the domain of personal laws. “It is not only a question of the major religious groups such as Hindus, Muslims, Sikhs, Christians, Buddhist etc. but also for the scores of local, tribal and indigenous communities with their own set of laws, customs and practices”, states the letter.
The letter mentions that the Personal law of various communities exists as a facet of their Fundamental Rights under Article 25 (Freedom of Conscience) and Article 29 (Right of a minority to protect its distinct culture) of the constitution.
“It is a well-settled principle of law that where Fundamental Rights collide with directive principles of state policy, it is the exercise of Fundamental Rights that shall prevail since they are expressly guaranteed by the Constitution”, claimed the letter.
The letter clarifies that adherence to Islamic law in matters such as marriage, divorce, succession and related matters is considered a religious obligation by Muslims, and is considered an essential facet of the ‘practice’ of their religion, which is protected by Article 25 of the Constitution.
It has been submitted that before making any legislative enactment that would affect Muslim personal law, the legislature is first required to consider whether Islamic law places any religious obligations upon its adherents concerning the matter under consideration.
It says that if Islamic law creates a religious obligation regarding the issue under consideration, it would plainly be protected by the right under Article 25 of the Constitution.
The letter says that individual cases of violation or abuse of personal law are highlighted and hyped in media as well as political discourse to create an impression of widespread iniquity in the conduct of Muslim personal law in India. It declared that such stereotypical depictions are biased and politically motivated in nature, and must not be considered when deliberating upon serious legislative issues.
Alternative Dispute Resolution mechanisms
The letter says that the legal system in India has been readily adopting a move towards alternate dispute resolution mechanisms, in order to lessen the burden on the courts as well as make dispute resolution economical and timely. The letter discusses the operation of community-based mechanisms like Dar-ul-Qaza which it says “have also been recognised by different courts.” It elaborates that the Supreme Court even ruled that their decisions would have the legal effect of an arbitral award. The letter claimed that such mechanisms were extremely useful for the common people, who are able to settle their disputes in a cost-effective and timely manner. It added, “The operation of a UCC must not be allowed to cast a shadow over such community-based efforts, forcing people to run to courts for the settlement of all their disputes.”
