One of my friends, who is a senior officer in the State Judicial Service, asked me about my opinion on the issue of a Uniform Civil Code. Make no mistake. As a Judicial Officer, his knowledge on Constitutional matters is very wide. In addition to that, many luminaries have written extensively on this topic, since the days of the original Constituent Committee debates, to the modern times, where it has come up as a very polarizing issue. What my friend needed was an administrator's perspective, born out of personal experiences. There is a chance that some part of it might get included in his presentation to the highest Court in the land. Hence, it is indeed a privilege to share my two cents on this topic. This is not an article based on secondary source research. This is simply based on experience and cogitation there upon.
Very few young people come face to face with personal laws. Till mid 2015, my only concern with personal laws was how to calculate my coparcenary share in the rundown village property, to fill in the annual property returns. That changed, quite drastically, in 2015, when the government decided to award the victims of the Hashimpura Massacre an additional compensation. The burden for creating the file fell on SDM Meerut, a seat I occupied then. A good part of the struggle was locating the musty files dating from 1987 nearabout, and reading the grisly reports, and making notings about decidely legal domain matters. That was accomplished quite well, and the award came through. However, now we were witness to an even bigger problem. All the victims were dead (obviously), and most of the original next-of-kin were also deceased now. The obvious solution was to give the new compensation to the successors to those kin. What was not obvious was successor according to which law? As revenue courts, we decided succession to agricultural land as per the Revenue Law. However, the compensation was not agricultural land. So it was decided to go by Muslim Personal Law. By this decision, the successors of the female lines were quite disadvantaged. A lot of petitioning and cross petitioning ensued. To my surprise, I received calls from a top marquee advocate/defender-of-minority-rights (who is quite vocal against UCC) who insisted (or rather threatened me) that we desist from following the Muslim Personal Law in this case! In the matter, I humbly accepted that my knowledge of the law and precedents was much dwarfed by her knowledge, but I insisted that the objections come in a proper written legal argument form. Neither this request was complied with, nor was the threat carried out. However, it became clear that when it came to oneself, a sizeable portion of the persons who are governed by the personal law, found it unjust enough to acquire the services (may be threat services only) of a very high price lawyer.
Our 'secular' laws, though, fare no better in perceived equity. As an Assistant Collector, I presided over a revenue court, in which matters of title of agricultural land were decided. In this respect, Revenue Laws are similar to the property related Statutes of the personal laws. Unlike our judicial counterparts, we presiding officers of Revenue Courts have to interact, as administrators, devoid of the trappings of a Court, with the public. I had in my office a lady weeping unconsolably and accusing me of 'robbing her of her property'. The matter in this case was that the succession in this case had occured when, as per law, brothers ranked higher in the succession list than daughters, and hence, when the suit had run its course, the property had to go to her uncles. Sad, but that was the law. Subsequently, unmarried daughters have been brought to a higher status. We have come a long way from the times of Jane Austen, where the Bennett sisters and their mother were perpetually under the threat of being evicted by Mr. Collins, in the event of their father's death. (They were much luckier than the Dashwood sisters in this regard!) However, our secular laws still are examples of legally endorsed patriarchy. Time has come, that as we endeavour to neutralize the religion part out of the way our property related laws, we should also put an end to patrilineal (or even matrilineal) ideas of succession and family ties, at least in legal respect. Instead of defining successors as sons, daughters, father, mother, brother, sister, and invoking their marital status in case of women successors, the proper way should be listing these simply as offsprings, parents and siblings. Whatever restrictions apply to a widow gaining her husband's share should apply to a widower gaining his wife's share. This would put an end to the idea of daughters being 'paraaya dhan'. This would give the women their due and demarcated share in parental property. This would be a fall back for her in case of a marriage gone sour. This should reduce the demand or at least the justification for dowry. It would dramatically balance the society in a way no other law has done. On a side note, it shall make the law quite simple to administer for the presiding officers!
I have also been asked to share my view on the balance needed between Article 25 and Article 44. Being a Fundamental Right, Article 25 is, no doubt, stronger than the latter, a Directive Principle. To quote from the source, Article 25 states that - "25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. "
Interestingly, this Article is very carefully worded, and gives preference to any restrictions given in this part (Part III) of the Constitution. So, we can have a look at an Article just 10 steps above, which says that - "14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth."
As has been submitted in the preceding paragraphs, all personal laws (and even the professedly secular Revenue laws) discriminate on the basis of sex, and within sex, even more so, on the basis of marital status. They do this for no better reason than their origin in a patriarchy, where sons are the heirs and torch bearers, unmarried women have to be grudgingly given sustenance, and married women 'belong to another family'. Thus, if for no other reason, then for this alone, a case for a gender neutral UCC faces no obstacle from Article 25. Anyway, Article 25(2) clearly states that it does not prevent regulation by the State of the matters secular. 'Secular', despite its various connotations in contemporary Indian politics, still retains its dictionary meaning as 'not connected with religious or spiritual matters'. There is no spiritual significance in how property is devolved. Unless, of course, we take a very broad definition of 'religious matters'. Religions came into existence as man, in his lack of understanding of various happenings, looked up to the skies for the answers. What was essentially a protocol for this connection between man and his Maker often exceeded its brief and came to dictate every aspect of human life. When does one wake, how does one eat, how one earns one's living, how one disposes of his wealth, how one marries, how one procreates, and million such other questions. Religion (and tradition - for all major religions can be classified as either tradition born, or propagator born) claims to be a lot more than a method to congress with God. It assumes to itself the authority of the Law of the Land (or rather, Lands, as many religions cross, and disdain, national borders). Religion and tradition would feel much better if there were no Statutes. Thus, indeed, the very enactment, adoption and giving to ourselves of this Constitution on 26th November, 1949, was the biggest step against the freedom of Religion (notice the capital R, as opposed to the freedom of religion). So, once this first blow has been struck, there should be no looking back. For the Constitution, and the 'modern' Hindu personal law were enacted in a much better political scene. Politicians, across the spectrum from left to the right, were genteel, well read, and, most importantly, secure with their electorate. Ironically, the robustness of the Constitution has led to such a deepening of democracy that the contemporary politician is very similar to his electorate, in upbringing, education, and outlook. Even if he is not so, he is forced to affect this resemblance, as the competition is very tough. In the 50's and the 60's the political leadership had the necessary influence and it actually led the electorate from their primeval predilections to a more modern and liberal position. The contemporary politician is forced to echo the parochial views of his electorate, and even outbid his competitors at that. As none other than the architect of the Constitution, Dr. B.R. Ambedkar has told us, “Democracy in India is only a top dressing in an Indian soil which is essentially undemocratic." So, the political class has no incentive to take the side of modernity in its tussle with tradition and religion. Hence, the role of the non-political State increases that much. If the Court does not pull its weight in this matter, the undemocratic soil, which, after the brief attempt at democratic dressing by the Founding Fathers, is being steadily eroded by the parochial politics, would be eroded back to the dark ages. We see it in the rise of bovine vigilantism. We see it in the burning Nagaland. We see it in Caste panchayats and fatwa-shops. There is the need for a ratchet like grip on the affairs - it needs to be shown to the populace that the society shall either stand where it is, or it shall modernize further, but under no circumstance shall it be allowed to slide back.
What does the administrator expect? Any effort by the state to modernize and to counter the backward slide would be met with resistance by people who have forgotten to be led meaningfully for a while. This may result in all the variety of disturbance, which is seen whenever the Court incarcerates a popular political figure, or cancels a popular but illegal 'affirmative action'. The administration faces it, and shall face it as it has faced it till now. The Court needs to understand that the Permanent Executive also has a big stake in an institution-led modern society. If the basic safeguards in the law and order Statutes like the CrPC, like 'good faith', are respected consistently, the administration has full wherewithal to ensure that the modernization project started by the Founders would continue and even flourish. Hence, it is a considered opinion that the Court can and should pick up where the enlightened politics left, and strive on. For, otherwise, it is a slide into an institutionless, Constitution-less dark age. Attack, then, is the best form of defence.
What does the administrator expect? Any effort by the state to modernize and to counter the backward slide would be met with resistance by people who have forgotten to be led meaningfully for a while. This may result in all the variety of disturbance, which is seen whenever the Court incarcerates a popular political figure, or cancels a popular but illegal 'affirmative action'. The administration faces it, and shall face it as it has faced it till now. The Court needs to understand that the Permanent Executive also has a big stake in an institution-led modern society. If the basic safeguards in the law and order Statutes like the CrPC, like 'good faith', are respected consistently, the administration has full wherewithal to ensure that the modernization project started by the Founders would continue and even flourish. Hence, it is a considered opinion that the Court can and should pick up where the enlightened politics left, and strive on. For, otherwise, it is a slide into an institutionless, Constitution-less dark age. Attack, then, is the best form of defence.
