The book Uniform Civil Code for India by Shimon Shetreet and Hiram E. Chodosh provides a comprehensive blueprint for alternative frameworks and courses of action, based on lessons from a comparative context of three nations. The book also seeks to resolve the challenge of introducing the civil code with continued respect for community laws and their social customs. Most important, it provides a fresh set of guidelines and processes that might be helpful to find a solution of the politically sensitive issue and the dilemma in the formulation and implementation of the Uniform Civil Code in India.
The blueprint also focuses on the relationship between religion and the state and the authors argue that the proposed set of guidelines would be helpful in removing the suspicion of the communities (Muslim or the Hindu). The authors further elaborate on the two objectives that can be achieved by adopting a Uniform Civil Code: one, it would maximize the sustainability of traditions and values of the community and secondly, it would reinforce constitutional values that prevent discrimination against unfair gender practices. One finds a comprehensive explanation of the interplay between issues of law, culture, and religion in the light of various intracommunity and inter-community disputes in the book.
The book is divided into two parts. The first part deals with the experience of other nations in resolving the challenges in introducing a civil code along with formulating a relationship with the state and religion. This section consists of three sub-themes of law, religion, culture, country studies of law and comparative lessons and the case of India. The most interesting themes of this section is the division of models of religion and state relationships and the idea of classifying the countries of the world in five models to be adopted by the respective countries as per their requirements. The second part elaborates on the debates on different ways to understand the conflict arising out of this issue from the strategies for handling these conflicts. At the same time the term conflict, its nature and types are also explained in a comprehensive manner by the authors.
It is argued by the authors that Article 44 of the Constitution has created an unresolved issue that led to a conflict first between the state of India and the communities and secondly, a conflict between a secular state and the religion of its people. The fear of the minority groups, that the Uniform Civil Code would not express their cultural needs and indentity, is highlighted. Another major obstacle as seen by the authors is conflict between a secular code and the freedom of religion.
The first guideline in the blueprint suggested by the authors that the process of preparing and implementing a Uniform Civil Code should be the function of the legislature and the courts can resolve certain specific points. The second talks about the application of civil and religious laws simultaneously and that one should not obstruct the other. The third suggests a gradual application to allow people to get accustomized to the changes that it will bring about. The fourth is about the tools of mediation at an inter-community and individual level in the formulating and implementing of the code. Both these tools of mediation would help not only in enhancing the dialogue between the communities of India but also acceptability by the communities on some agreeable stands and these agreeable proposals can be achieved through the process of legislation.
The second part of the book provides the reader a comprehensive description of different ways to understand five major types of conflicts, each of which may be mediated conceptually, socially and politically. It also suggests strategies that may provide a theoretical as well as practical base for bridging these conflicts. One also gets a comprehensive picture of how these conflicts takes place in terms of social difference and interaction and how these two situations shape our ideas, values, belief, practices, status and identity, delimitation of resources and so on. The chapters also draw the readers’ attention towards the problems related to the laws governing different religions and argues that for proposing a solution, first of all the obstacles must be understood.
Two major arguments related to a Uniform Civil Code have been put forth by the authors in this part of the book: first, what the fundamental point of differentiation like equality, human rights, or national identity one the one hand or religious freedom, minority rights or diversity on the other should be. Secondly, what kind of grand principle of law and justice should prevail in India which can protect the rights of citizens? More precisely, the chapters consisting in the second part mainly deal with arguments like whether a uniform code is incompatible with the fundamentalstructure of authority, alternative approaches to conflicts of law in which uniformity can be seen both positively and negatively, dilemmas or conflicts arising out of implementing reforms, and the ways it can be resolved and finally how any matter under the new code might be mediated through section 89 and Order X of the CPC.
The authors have not considered the fact that the power of the state and the freedom of religion are difficult to reconcile especially in the matter of personal and family law. For instance, while talking about intercommunity and individual mediation, the authors should have also mentioned whether the state should develop a uniform body of law, or it should be the religious communities or group of individuals that be given the right to develop their own diverse approaches to issues of personal and family law in a democratic state or both should come together. The authors recommend that the legislative branch take the responsibility for the preparation and implementation of a uniform code, and that it should be developed, applied, and enforced through a process of mediation but is silent on the positions of the political parties which have their own political interests in codification of personal laws of the various religious communities in India especially the Muslims who have always been seen as a vote bank. Also the role of commissions and judiciary is not properly addressed.
In the book an argument about Article 44 (to endeavour to secure a uniform civil code for citizens throughout the territory of India) is made as a central issue, but the opinion that this provision demands mechanical application of a single family law to the entire nation by one stroke of legislation goes against its rationale and ignores ground realities. The hard reality of the Indian society has not been taken into account by the authors while providing the blueprint. Seventeen commissions have been set up since 1955 but had never recommended any reforms in Muslim law. No consultation with the commissions was made before enacting any law for the Muslims, including the (in)famous maintenance law enacted for Muslim divorcees in the aftermath of the 1985 Shah Bano case and the 1995 WAKF Act.
Further, the role of judiciary/judicial activism finds hardly any place in the preparation and adoption of guidelines for a uniform civil code. For instance, the Supreme Court in its Pannalal Bansilal ruling of 1996 clearly indicated that a uniform law, which is no doubt desirable but enactment in one go may be counter-productive to the unity and integrity of the nation and hence can be remedied step by step by the process of law. The first woman Chief Justice, Leila Seth, has persuasively argued that the implementation of a Uniform Civil Code will help in breaking those customary practices harmful to women and will provide the women, irrespective of religion, an individual identity as citizens of India. These voices of independent feminists and liberal jurists have not found a place in the book while discussing the institutionalization of mediation.
Further, the endeavour to have a common civil/ family law is not a new issue and from time to time different groups of concerned citizens, civil society organizations, young Muslim lawyers and other scholars have been in consultation for establishing an entity to carve out a draft code especially of Muslim laws of marriage, divorce and succession and have been exploring various ways and means for collaboration and interaction. But since the issue is deeply politicized, subject to the pressures of party politics rather than governed by the principles or the ideals of the Indian Constitution, it can be concretized only when the social climate is properly built and the masses awakened to accept the change.
One of the most important issues that is hardly touched in the book is formulation of guidelines and Article 44 is that while all Fundamental Rights are enforceable by the courts, the Directive Principles of State Policy are not enforceable by the courts although they are of great social and political significance that might result in adopting a common civil code.
It would have been better if the authors had considered the fact that the personal laws of Hindus, Muslims and other minorities are diverse and do not permit uniformity of any sort. In fact, the heterogeneity of Hindu law itself is such that even the possibility of a uniform Hindu code is not possible. For instance, marriage under the Hindu Marriage Act, 1955, may be solemnized in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu. Further, in India there is an optional civil code in the form of the Special Marriages Act, 1954, Indian Succession Act, 1925, Juvenile Justice Act, 2006, which provides a good legal framework for all matters of marriage, divorce, maintenance, succession and adoption for those who may wish to avoid the religion-based laws. The Supreme Court has passed judgments making it clear that all Indian citizens have the right to adopt legally, irrespective of personal religious laws.
In the beginning, the authors talk about two objectives that can be achieved by adopting a uniform code and one of them is reinforcing of the constitutional values that prevent discrimination especially those unfair practices regarding girls and women but have not elaborated on these objectives and how to achieve this. As we all know most of the provisions in the personal laws of the communities are discriminatory towards women. How implementation of a Uniform Civil Code will prevent this discrimination needs elaboration.
The book is significant from the policy point of view, for legal practitioners, scholars, and researchers of law as well as students of political science, sociology and human rights. A well cited bibliography and appendix enhances the richness of the book.
Sabiha Hussain is at the Dr. K R N Centre for Dalit and Minorities Studies, Jamia Millia Islamia, New Delhi.