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|May 21, 2002||
Where's the Uniform Civil Code?
This commentary today is largely a record of dispassionate and patriotic pronouncements in black and white which, judged by what it delivered, were shockingly ignored by the National Commission to Review the Working of the Constitution.
The NCRWC submitted its recommendations to the government early last month without advocating the dire urgency to implement the Constitutional provision of a uniform civil code for the country that is increasingly witnessing a dangerously widening schism between the majority Hindus and the minority communities, mostly Muslims -- a schism that, moreover, is being continuously created and exploited by vote-bank politicians.
Following are the opinions which no responsible citizen India would have ignored while assessing the way our Constitution has worked -- or not worked -- since its commencement in 1950. They are the opinions which NCRWC seems to have disdainfully dumped despite being assigned a serious, almost sacred, assignment.
It's not only distinguished Indians who have urged the enactment of a uniform civil code for the country. Even the United Nations has exhorted us to do that. That was made clear in a report in The India Express of January 28, 2000 on an Indian delegation's presentation to the international body's Convention on Elimination of All Discrimination against Women. In that report, the newspaper's senior correspondent told us that the following were dinned into us by CEDAW:
It is measure of the nation's appeasement [fear?] of Muslim sentiments that none from Nehru down to I K Gujral have had the spine to even try and do what the fathers of our Constitution had directed them to do. The pity is that the BJP has the spine but not the Parliamentary majority to effect what its election manifesto promised. And remember, that manifesto believed that if a uniform code entailed the end of the benefits under Undivided Hindu Family rules, so be it. However, bowing to coalition governance, the NDA government's law minister [a BJP man] reacted mutely to CEDAW's rap on the knuckles, and ended with the remark that a uniform civil code would come when the minority communities agree to it.
This last is old hat. In the Shah Bano case cited here earlier, Chief Justice Chandrachud had stated as follows:
'A belief seems to have gained ground that it is for the Muslims to take a lead in the matter of reforms of their personal law. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the state which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning.'
Despite such frequent and fervent support for a uniform civil code, our apex court has not shown the kind of activism in that area as it has in some other matters in recent months. It has, for instance, not only directed the government about the date from which diesel-run transport buses in Delhi must be replaced by those using CNG but refused to compromise on the date; the latest of such judicial activism happened on May 12, 2002 when the Supreme Court directed the Centre not to release any funds under the Sampoorna Rozgar Yojana to any state till the utilisation certificate for the previous allocation was furnished by it.
These two examples represent executive orders, not a matter of law. But with regard to the uniform civil code, the Supreme Court has tended not to do so. Thus, in Maharshi vs Union of India (1994), it dismissed a petition seeking a writ of mandamus against the Government of India to introduce a common civil code. The court took the view that it was a matter for the legislature. 'The courts cannot legislate in these matters.' Note that the petitioner had wanted a directive from milords, not a law. [The Constitution of India, P M Bakshi, Universal Law Publishing Co Pvt Ltd, 2000, pg 93.]
Even in the Mudgal case, the apex court did not tread the last step despite its severe stricture on Nehru and his successors for being 'wholly remiss in their duty of implementing the constitutional mandate under Article 44.' All that the Supreme Court did then was i. 'request the Government of India through the Prime Minister of the country to have a fresh look at Article 44' and ii. 'direct the Government of India to file an affidavit of a responsible officer in this Court in August 1996 indicating therein the steps taken and efforts made by the Government of India towards securing a uniform civil code for the citizens of India.'
Since little is known of what actually transpired in the matter of that affidavit, the NCRWC had the golden opportunity to revive the crucial issue as an outstanding example of how the Constitution's working has been balked by the blind, vote-seeking eye of the rulers. That did not happen; the NCRWC itself chose to wear blinkers.
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