Why uniform personal law
Introduction
Law is nothing but set of rules to govern the affairs of human society in orderly manner. Every country has its own constitution and subordinate legislation to govern the affairs of state and citizens. Law is supposed to be same to every citizen and not discriminatory or favorable to any class of citizens. All must get the same treatment in law irrespective of gender, community, race or region.
Sources of law
Indian law is mainly based on British law. In fact, rule of law was introduced in India by British. In ancient and medieval India, word of king was law. The ancient Hindu law coded in Manusmriti was discriminatory against lower castes and women. The Manusmritu was legalization of tyranny as well as inhuman status of the lower and depressed sections of society.
The Muslim rulers introduced sharia. Thus in medieval India, manusmriti and sharia both operated. Implementation depended on religion of the monarch. Some rulers had Hindu and Muslim ministers and clergy to help them decide cases keeping in view religious tradition of cirizens involved.
Codification of law during British
During British rule, law was codified. It was policy of British government not to interfere with local traditions. They diferentiated between civil, criminal, commercial law on one hand and marriage, divorce, adoption succession on the other. The former relates to all citizens whereas the latter afects only particular communities and members thereof. Hence common code was introduced so far as criminal and civil law is concerned. But the matters like marriage, divorce, succession are community matters and so these needed no common code. Any attempt to codify such law would be a herculean task in view of vast differences not only between different religious communities but also between different sections of same community and various regions. Owing to initiative taken by social reformers like Ishwar Chandra Vidyasagar, some changes in law were made to give equal rights to women. These included Hindu Widow Remarriage Act 1856, Married women's property Act 1923 and Hindu Inheritance (Removal of disabilities) Act 1928.
Legal reforms during post indepndence period
The personal law of Hindus as well as Muslims discriminated against women in matter of divorce and inheritance. The condition of Hindu widows was worst. Naturally women organizations were very keen to reform the law to ensure gender equality and justice. The Indian parliament discussed report of the Hindu Law committee in the sessions 1948-1951 and l951-1954 sessions. Many Hindu leaders including Dr. Rajendra Prasad, first President opposed amendments in Hindu law. After much discussion, as a compromise, some legislation that could satisfy the conservative elements was also passed in shape of certain acts- Hindu Marriage Act, Succession Act, Minority and Guardianship Act, Adoption and Maintenance Act. Nehru as well as women's bodies favored uniform law for all citizens but minorities especially Muslims opposed such move. Ultimately, the issue of uniform civil code was included in directive principles of constitution.
Shah Bano Case- a setback to uniform civil law code.
Although there is separate personal law for Muslims, there are provisons in criminal and civil law that relate to family matters. Shah Bano, a Muslim lady divorced forty years after her marriage was awarded comensation under Section 125 of criminal procedure code relating to maintenace of wives, children and parents. The criminal law is common to all citizens. But it was considered an encroachment on separate cultural identity of Muslims. There was hue and cry. The Supreme Court also decided the case allowing maintenance to Shah Bano. The issue of uniform civil code again was revived. Ultimately government yielded to the pressure by Muslim organizations and the criminal procedure code was suitably amended so as to keep Muslims outside scope of section 125 of the criminal procedure code.
Why uniform personal law
The disputes on personal law are unnecessary. There is unity in diversity. But there is no way you can maintain unity by not respecting diversity. The religious communities are like different families. Each family has different rules. You cannot make the common law that wife will make food and look for children whereas husband will go for work outside. It is for families to see what is good for them. The religious communities like Hindu, Muslim, Christian are just extended families and they are entitled to their own rules. No doubt the rules that affect all citizens irrespective of community should be uniform or same for all. For example: Keep to the left is rule for traffic. This must be same for all. This is in domain of public law. At what hours a child should sleep and wake up is matter of family and there can be no uniform rule or law. Parents must be allowed the liberty to manage the domestic affairs. The issues concerning the internal matters of communities are pesonal to them and there is no reason why there should be uniformity about these. Any attempt at prescribing common code on issues like marriage, divorce, succession will enable the majority community to coerce the minorities to adopt the dictates of the majority community.
Reforms do not need uniform personal law
No doubt there are issues of gender inequality in minority community as well. There is pressure by women organization for uniform personal law. These women organizations are also controlled by the majority community. It appears that the dominant Hindu organizations are more concerned with justice to Muslim women than their own women. It may be recalled that the reforms in Hindu law were made with initiative of Hindus like Ishwar Chandra Vidya Sagar, Raja Ram Mohan Roy, Maharshi Daya Nand. No Muslim interfered for reforms in Hindu law. Muslim law may need reforms but inititiave must come from Muslim community. The various organizations including several women organizations must understand their limitation. By this attitude, national unity cannot be maintained. The two nation theory that considers Hindus and Muslims is illogical and baseless. Equally harmful and disatrous is attempt to introduce common civil code. Hindus and Muslims must live together as brethern but this needs recognizing sperate identity and culture. There is need for reform in personal law of Hindus, Muslims and Christians. But each community and its leaders are primarily rsponsible for the reforms. The reforms cannot be imposed by a central authority. The attempt by the majority community leaders to introduce uniform personal law is really attempt to subordinate the entire nation to Hindu traditions.
Uniform civil law is negation of unity in diversity
It is often said that India is a nation where there is unity in diversity. 'Unity' and 'diversity' boith are significant. If you ignore diversity and force uniform law on all, there will be no unity either. Resepcting diversity is key to national unity. The very idea of common civil law needs be buried for once and all.
Conclusion
The need for social reforms is genuine. But the responsibility for reforms is mainly on the concerned communities. Nobody can tell his neighbor how he should manage his household. Similarly, co community can tell the other how to reform. Let this be left to the respective communities. Personal affairs are personal. Community affairs are community related. These do not affect the people not belonging to a particular community. Let there be no encroachment on internal matters of any community. Triple talaq may be bad but non Muslims have no business in reforming this tradition.
There is no way other than to leave the issue of reform in personal law to respective communities. The Directive principles also need be amended so as to delete the requirement of common civil code.
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