Hindutva’s stick

Hindutva groups use the idea of a uniform civil code as a stick to beat the minorities with, an enterprise that finds an answering echo in judicial zeal informed by poor scholarship.

Personal and family laws are intimately connected with the practice of religion, as the early leaders of independent India acknowledged. Here, a file photograph of a couple of Muslim brides in Ahmedabad.

Shiv Sena chief Uddhav Thackeray deserves kudos for exposing the hypocrisy of the Sangh Parivar, of which his own party is a member, albeit a small and noisy one. On October 22, he said at the Sena’s annual Dussehra rally in Mumbai’s Shivaji Park: “They should first announce that this country is a Hindu rashtra and impose the uniform civil code” (emphasis added, throughout). “They” refers to the senior partner, the Bharatiya Janata Party (BJP), whose long-standing triple agenda is a Ram temple at Ayodhya, abrogation of Article 370 of the Constitution, and a uniform civil code. The word “impose” bluntly prescribes the approach that others prefer to veil. On August 5, 1989 , Organiser , the organ of the Parivar, quoted the then BJP president, L.K. Advani, as proudly telling BBC, “It would not be wrong to call the BJP a Hindu party.” He said on November 19, 1990: “Henceforth only those who fight for Hindu interests would rule India.” For good measure, he complained on October 20, 1990, that “secular policy is putting unreasonable restrictions on Hindu aspirations”.

The advocacy of a uniform civil code is an integral part of this ethos. It is not motivated by a desire for reform but by a lust for uniformity in the Hindutva mould. Men who have no sympathy for Muslim women whose husbands, brothers and sons were killed by the goons of the Hindutva brigade, without so much as a rebuke by the Parivar chief, are not inspired by lofty considerations. Their target is Muslim Personal Law, and they want to erase it from the statute book because it signifies Muslim identity.

India is a land of continental dimensions. Consider the conciliatory moves made by Canada’s national government in recent decades to support Quebec’s distinct identity, with its language, culture and laws. The United Kingdom has two different systems of criminal law. Scottish law recognises the plea of “not proven”; English law does not. There is no national Bar. England has barristers; Scotland has advocates. The catchphrase “national integration” is calculated to mislead. Sri Lanka’s Muslims are well integrated with the nation. They have their own personal laws.

In 1979, the Rashtriya Swayamsewak Sangh (RSS) opposed the establishment of the Minorities Commission and insisted that a Human Rights Commission would suffice. This is because, fundamentally, it rejects the very concept of minorities. The demand for imposition of a uniform civil code has figured in every election manifesto of the BJP, and earlier in the manifestos of the Jana Sangh. The approach is totally at variance with the one adopted by genuine reformers of high credentials as secularists. The universally respected Romila Thapar leads this school. In her recent lecture in Mumbai she advocated a persuasive approach.

The real issue The real issue is not the civil code. It is reform of Muslim Personal Law, which flagrantly violates the Sharia, the law ordained by the Quran. The perverted law now in force is oppressive to women, specifically the arbitrary triple divorce and polygamy. It is not Sharia that is followed in this but the “Anglo-Muhammadan” law of British times. The All India Muslim Personal Law Board is in the grip of dinosaurs. A besieged community is a conservative community. It clings to what is left of its identity. Since Independence, the Muslim community has been exploited either by the “sarkari musalman” who acts as a dalal (agent) between the state and the country’s Muslims, the quintessential Uncle Tom, or the reactionaries who control the board or the bogus secularism of some “secular” parties.

Jawaharlal Nehru had to wage a battle within his own party, the Congress, against Hindu communalists. Muslims witnessed his helplessness, suffered in the never-ending riots, saw the erosion of constitutional safeguards and the attacks on Urdu, and faced the wrath of the rising forces of Hindutva. They withdrew into their own suffocating shell. The nation is poorer for that.

The issue, then, is the reform of Muslim Personal Law. Pressures for its abrogation by the uniform civil code retard the progress for reform. Professor J.N.D. Anderson noted: “It is the family law that has always represented the very heart of the shariah , for it is the part of the law that is regarded by Muslims as entering into the very warp and woof of their religion.” It has been “basic to Islamic society down the centuries”. This was why in 1931 the Congress Working Committee declared that “personal laws shall be protected by specific provisions to be embodied in the Constitution”. Nehru assured Mohammad Ali Jinnah, in a letter dated April 6, 1938, that the Congress had “declared that it does not wish to interfere in any way with the personal law of any community”. Law Minister G.S. Pathak said in the Lok Sabha on May 17, 1966, that “personal laws are mixed up with religion” and that “we cannot coerce people to accept our views about their religion and customs”. Earlier, a similar assurance was given in the Lok Sabha by Law Minister A.K. Sen on August 29, 1963.

The constitutional position Relevant are two provisions of the Constitution and a basic principle of jurisprudence. Article 37 says emphatically, a propos the Directive Principles of State Policy laid down in Part IV of the Constitution: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” On any honest construction, this means legislation of the legislatures, not legislation in the guise of adjudication by the courts.

In contrast, the Fundamental Rights are enforceable by the courts (Articles 32 and 226). Likewise, when Article 44 directs “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”, it means the legislature comprising elected representatives of the people and aware of the realities and the feelings of the people. They are allowed a wide margin of discretion—“shall endeavour ”. It does not mean unelected judges, sitting in an ivory tower, presuming to legislate. That is, to use the words of Lord Simonds, “a naked usurpation of the legislative function under the thin disguise of interpretation” ( Magor and St. Mellons Rural District Councils vs Newport Corporation (1952) AC 189 at 191).

The Supreme Court is not entitled at all to direct Parliament to legislate. Justice K.S. Hegde of the Supreme Court said in 1971: “No court can issue a mandate to a legislature to enact a particular law. Similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact” ( Narinder Chand Hem Raj v. Lt. Governor, Administrator Union Territory, Himachal Pradesh (1971), 2 SCC 747 at p. 75, (Para 7). In 1989, the Supreme Court reaffirmed these principles: “There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority” ( Supreme Court Employees Welfare Association vs Union of India (1989) 4 SCC 187 at p. 219 (Para 51).

Intent of the framers of the Constitution No court of law can ignore the distinction and override the clear intent of the framers of the Constitution reflected in a closely reasoned debate. It is excellently summed up by Granville Austin in his masterpiece The Indian Constitution: Cornerstone of a Nation (1966): “The sub-committee (on Fundamental Rights) decided to introduce the Directive Principles of Social Policy, as they were then called, with a Preamble explaining that they were for the general guidance of the government and were not cognizable in any court. The break with the Fundamental Rights had been made . The members went on to adopt provisions based on Sir B.N. Rau’s draft to the effect that the state should raise the level of nutrition and the standard of living of the people, and promote international peace and just dealings between nations. Certain changes and counter-changes were made during the next several weeks, but, in general, the first stage of drafting the Directive Principles was over.

“The framing of the provision regarding a uniform civil code provides an interesting aside to the sub-committee’s work. In India in 1947, despite the inroads on personal law during the British period, many Indians lived their lives untouched by secular law, whether civil or criminal. The idea of a uniform civil code, therefore, struck at the heart of custom and orthodoxy, Hindu, Muslim, and Sikh. During the days when the Principles were to be justiciable, Minoo Masani moved in a sub-committee meeting that it was the state’s responsibility to establish a uniform code, in order to get rid of these water-tight compartments, as he called them. The members voted against the recommendation, five to four, on the ground that it was beyond the sub-committee’s competence. Yet, two days later the members approved the inclusion of the provision, but only after it had been decided to create a non-justiciable section of the rights where the clause could be put. The reason behind these actions was not, as it might at first appear, the wish to avoid a clash with Hindu orthodoxy, but a sensitivity, particularly on Nehru’s part, to the fears of the Muslims and the Sikhs. Had the provision been in the rights, it would have been justiciable and perforce applicable equally to all communities.” Thus, Parliament alone was to “endeavour” to frame the uniform civil code in its discretion. Note, the Rights and Directives were drafted by one and the same body.

Article 44 figured as Article 35 in the draft Constitution. It was debated in the Constituent Assembly on November 23, 1948 ( Constituent Assembly Debates, Volume 7, pages 540-552). A member of the Assembly’s Drafting committee, Sir Alladi Krishnaswamy Ayyar, said: “The Future Legislatures may attempt a uniform civil code or they may not ” (page 550).

The Chairman of the Drafting Committee, Dr B.R. Ambedkar said: “I quite realise their feelings in the matter, but I think they have read rather too much into Article 35, which merely proposes that the state shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed, the state shall enforce it upon all citizens merely because they are citizens.” That the Sangh Parivar adopts this very approach is perfectly understandable. What is disturbing is that, as will be pointed out, judges of the Supreme Court, in their zeal for reform, have also taken this hard line from 1985 to 2015.

Contrast this with Ambedkar’s statesmanlike attitude, a few days later on December 2, 1948: “It is, therefore, quite impossible for anyone to conceive that the personal law shall be excluded from the jurisdiction of the state. Having said that, I should also like to point out that all that the state is claiming in this matter is a power to legislate. There is no obligation upon the state to do away with personal laws. It is only giving a power. Therefore, no one need be apprehensive of the fact that if the state has the power, the state will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.

“We must all remember—including Members of the Muslim community who have spoken on this subject, though one can appreciate their feelings very well— that sovereignty is always limited , no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. No government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion . I think it would be a mad government if it did so. But that is a matter which relates to the exercise of the power and not to the power itself” (pages 781-2). If the government should not, neither should the Supreme Court.

Double standards Interestingly, Parliament itself has disabled itself from enacting the coveted code “throughout the territory of India”—which is what uniformity requires. There is Article 370 on Kashmir’s special status, which the BJP wants to abrogate. The Centre’s uniform civil code cannot extend to that state. Those who cavil at Article 370 and shout for the code are strangely silent on Articles 371A and 371G. These are special provisions with respect to the States of Nagaland and Sikkim, respectively. They embody a compact on the basis of which the provisions were enacted. Article 371A(1) says: “(1) Notwithstanding anything in this Constitution, (a) no act of Parliament in respect of—(i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the state of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.” An identical provision is made for Mizoram.

In both cases it is left to the people to decide whether or not to change their personal law—the very principle that Parliament has respected on Muslim Personal Law. If double standards are being applied, it is because the BJP aspires to obliterate Muslim identity, while the zealous reformist yearns for a destructive uniformity.

Limits of sovereignty Unlike the arid legalism of some lawyers and judges, Ambedkar was steeped in constitutional law which, as Justice Felix Frankfurter said, is “but applied politics, using the word in its noble sense”. It was left to the great A.V. Dicey to point out forcefully the internal and external limitations that are inherent even in the British parliament, which is not fettered by a written Constitution.

“Everyone, again, knows as a matter of common sense that, whatever lawyers may say, the sovereign power of Parliament is not unlimited, and that King, Lords, and Commons united do not possess anything like that ‘restricted omnipotence’—if the term may be excused —which is the utmost authority ascribable to any human institution. There are many enactments, and these laws not in themselves obviously unwise or tyrannical, which Parliament never would and (to speak plainly) never could pass. If the doctrine of parliamentary sovereignty involves the attribution of unrestricted power to Parliament, the dogma is no better than a legal fiction, and certainly is not worth the stress here laid upon it.”

The internal limitation is the outlook of the members of a parliament; the external limitation is the sentiment of the people: “the possibility or certainty that his (the omnipotent King’s) subjects, or a large number of them, will disobey or resist his laws” or rise in revolt. “What is true of the power of a despot or of the authority of a constituent assembly is specially true of the sovereignty of Parliament; it is limited on every side by the possibility of popular resistance” ( An Introduction to the Study of the Law of the Constitution ; pages 71 and 79).

This is the first part of a two-part article.