UNIFORM CIVIL CODE, A PERSPECTIVE

While I do not feel there is any legal bar to the enactment of the Uniform Civil Code I yet think the exercise is undesirable in the manner it is sought to be implemented. The undesirability, however, has nothing to do with the “fears” of any section opposing the Code nor with any inherent illegality in the exercise and is based only on what Karl Popper referred to in The Open Society and Its Enemies as the need to fight the more urgent evils in society than the greatest ultimate good.

Uniform Civil Code will not violate any law nor transgress any bar on its enactment. Under Article 372 “existing laws” can be “altered” or “amended” by competent legislatures. I am aware of some judgments to the contrary but Personal Law cannot but be “existing law” as term “law”cannot be confined to statutory enactments and will encompass “everything acceptable as law to modern jurisprudence.” As existing laws, Personal Laws would not only be “subject to the Constitution” (even if Article 13 does not apply although I feel it does) but both the central and state legislatures would be competent to legislate on them in terms of Entry 5 of List III of the Seventh Schedule to the Constitution. Such legislation can effectuate the mandate of Article 44 of the Constitution. This exercise will achieve the objectives both of cohesion and equality which are the basic attributes of constitutional polity and are also concepts underpinning to every religion. In fact the Supreme Court itself (even while holding Part III does not touch upon Personal Laws – an observation which passed sub-silentio) recognized that Personal Law could be “altered or modified” by statute. Article 26 will not be a bar because Article 44 is as much an integral part of the Constitution and enacted along with the former. In any event freedom of religion under Article 25 itself contemplates the State “making law providing for social welfare and reform” – the professed objective behind Uniform Civil Code. In fact there is historical precedent for such enactments even under the British Rule with statutes enforcing reform applied to different religious communities. While admittedly no religion can be reformed out of existence, its practices are “subject to public order and morality”. No religion can sanction anything inherently unjust and that which is unjust is not immune from scrutiny and modification. This will conform to the mandate of Part III (Article 15(3) of the Constitution requires the State to make special provision for women and children ) and also fulfil the objectives of Part IV of the Constitution which requires the creation of a just social order. The substance of such action would have nothing to do with religion even if it may be incidentally affected. Any step to alleviate and improve their condition will only create a just social order with which no religion can have any objection.

I, however, do not feel Uniform Civil Code is necessary to enhance unity. This argument itself will disenchant a sizeable section of the population against the Code for reasons having nothing to do with the Code itself. Differences coexisting in a society is a more mature sign of unity of the society than uniformity in it. An enforced uniformity will be dangerous to unity as rejection of volition (which such enforcement will entail) will generate aversion not cohesion moving towards rejection of the compact itself. A mosaic of people can be as cohesive as a melting-pot and a vibrant pluralism of a multi-cultural society  will enhance the resilience of unity not diminish it. In any event we have uniform penal laws. Matters concerning contract, securities, banking, labour, electricity, acquisition, intellectual property, environment, consumers and transfer of property are also uniform. The procedural laws are uniform too. Almost every aspect of inter-personal relationship in the country is governed by uniform laws. In fact there is an option for uniform law even for marriage, divorce and maintenance under the Special Marriage Act, 1954. The use of this Act can be popularised and the recommendation of the Law Commission that “Special” be deleted from its title to read “Marriage Act” and all inter-religious marriages be mandatorily performed under the said Act will facilitate national integration even without a Uniform Civil Code. We definitely do not need Uniform Civil Code for our unity.

But unity is not the only objective of Uniform Civil Code. It deals also with liberty and with equality. I am surprised objection is being taken to the enactment of Uniform Civil Code as there is already much uniformity in the enforcement of laws across all religious communities. Dowry, a social evil and prevalent across communities, is punishable under a statute which applies to all. The Supreme Court has granted maintenance even to a divorced Muslim woman under Section 125 of the Criminal Procedure Code. Domestic violence, a problem across all religious communities, is again governed by a statute which makes no distinction on the basis of religion. And recently the Gujarat High Court applied the Child Marriage Restraint Act to a Muslim. Building on the consensus around that which prevails we can move incrementally in this direction by supplementing them on subjects of pressing importance like adoption and succession. The Adoption Bill was opposed by Muslims but adoption is a voluntary act of the parents and as child can only be benefited from the care and affection any law facilitating the same cannot be condemned by any reasonable individual recognising as it does freedom of choice and compassion for life. Similarly succession to property is more a means of gender empowerment than a mere religious edict. Once consensus is built on such issues the laws can be consolidated into a Code.

It will be prudent to keep in mind what Karl Popper said was “the difference between a method which can be applied at any moment, and a method whose advocacy may easily become a means of continually postponing action until a later date.” We have to ensure that insistence on Uniform Civil Code does not lead to the abandonment of such a Code altogether.

AZADI!!!!! Really???

Should those clamouring for “Azadi” become free I will not be able to comment. But I am free today to conjecture the consequences…
Freedom to disfigure the country- Azadi for Kashmir
Freedom to disable the law – Azadi from Sedition
Freedom to distort the facts – “Murder” of Rohith
Freedom to disparage the critics – “Persecution” of Nivedita Menon
Freedom to debase the opponents – “Half Pants”, “Hit Jobs” & “Reactionaries”
Freedom from discipline – “Curbs” on Universities
Freedom to disenfranchise difference – Its “fascism”
Freedom to dominate, dissimulating enslavement – Invoking “minorities” & “dalits”
Freedom to deliver the last word – we “think” you “hate”
Freedom to dismantle while pretending defense – In the name of Constitution
Freedom to Doublethink freedom
Freedom to end all freedom itself!

 

AZADI AZADI AZADI….

 

KASHMIR & MYTH OF “OCCUPATION”

“After Independence, the accession of Kashmir was done following the India-Pakistan war on the pretext that a plebiscite will be conducted when the situation gets back to normal and since then it (janmat sangrah) has not happened.” Thus spoke one Nivedita Menon who is a JNU Professor. She also said that India, an “imperialist” country is “illegally occupying Kashmir”.

Mark Twain famously remarked, “Get your facts first then you can distort them as you please.” In the instant case distortion is being paraded as facts.

The India Independence Act, 1947 created a sovereign Dominion of India which came into existence on August, 15, 1947. Under the said Act the suzerainty of the British Crown over the Indian States (including Jammu &Kashmir) also lapsed and they consequently regained there sovereignty. In exercise of this sovereignty the Indian States were competent to succeed to either of the two Dominions.

On October 26, 1947 The Maharaja signed Instrument of Accession with India thus recognising the fact that his State was part of the Dominion of IndiaThe Instrument of Accession was in the same form as was executed by Rulers of other states which had acceded to India and the legal consequences cannot be any different. The requirement of a plebiscite was not part of the Instrument of Accession. The acceptance of the Instrument of Accession was unconditional.

This position was reflected in the Constitution of India when it was made in 1949 and declared Jammu & Kashmir as part of the territory of India in Article 1. Article 370 itself states that Article 1 applies to the State.

The Constituent Assembly of Jammu &Kashmir ratified the accession to India in February 1954 and the President of India issued Constitution (Application to Jammu & Kashmir) Order, 1954 which added all Union subjects under the Constitution of India (not the three subjects of Defence, Foreign Affairs and Communications).

The Constitution of Jammu & Kashmir adopted on November 17, 1957 with effect from January 26, 1957 declares the State of Jammu & Kashmir to be “an integral part of the Union of India”. The choice of January 26th as the date from which the constitution was to take effect is significant as it was on this day that the Declaration of Indian Independence (Purna Swaraj) was proclaimed by the Indian National Congress as opposed to the Dominion status offered by the British Regime and it was chosen as the day when the Constitution of India came into force.

Where then is the “pretext of a plebiscite”? A sovereign Princely State acceded to the Dominion of India which accession  was unconditionally accepted by it and the same was incorporated in the Constitution framed declaring India to be a Republic to be ratified subsequently by the Constituent Assembly of the State and eventually acknowledged in the Constitution of Jammu & Kashmir itself. 

The UNCIP resolution talked of a plebiscite but even that mandated the withdrawal of Pakistani troops and tribals which never took place. And Mountbatten’s letter, apart from being a unilateral and ultra-vires act without the approval of the Council of Ministers could not only not alter a completed accession but at best was statement of intent which was fulfilled by subsequent developments.

Admittedly, elections to the Constituent Assembly were held in August-September, 1951 and all 75 seats were won by the National Conference. This itself is popular affirmation of the State’s accession to India.

Significantly the first official act which the Constituent Assembly of Jammu & Kashmir did was to end the princely rule of the Maharaja. His son was elected by the Constituent assembly itself. If what the Maharaja did was unacceptable would the Constituent assembly have elected his son as Sadar-i-Riyasat of Jammu & Kashmir?

Elections were held to the Jammu and Kashmir Legislative Assembly after the Constituent assembly was dissolved in 1957 and again in 1962 wherein 65% of the voters cast their ballot. Is this not vindication of the integration of the State into India? In fact in later elections in excess of 75% of the voters cast their votes! Presuming that any assurance of taking “people’s will” into account was given, this “will” has been repeatedly expressed by the people.

Jammu & Kashmir is India’s and will remain so and not because India is an imperialist country forcibly occupying it. Kashmir has not been colonised but has been constitutionally integrated into India. It was not for expanding investment, nor for acquiring material resources nor even to look for man-power that India sought to “occupy” Kashmir. The integration followed a legal process and in the very making of special provisions for it there is an absence of both dominance as also an enforced inequality in the relationship. There has been an engagement not conquest. And force is being used not to extend territory but only to preserve that which is its own.

India’s breakup is the agenda not the so called “occupation”.