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Published in the 16-29 Feb 2004 print edition of MG; send me the print edition

LAW WATCH
Talking sense on Uniform Civil Code

By Tahir Mahmood

Tahir MahoodOn the evening of 30th January this year in a jam-packed hall of India Habitat Centre a gathering of the National capital’s top law brains heard in pin-drop silence a very sensible and meaningful discourse on the controversial issue of uniform civil code. Few among the listeners would have realized then that talking sense on this important matter -- by talking nonsense about which people of all sorts have been polarizing the society on communal lines -- was indeed a befitting tribute to the Father of the Nation the 56th anniversary of whose martyrdom the Nation was also observing on that day. 

The occasion was a centenary celebration for the late SV Gupte, a leading law-man of the recent past and a former Attorney General of the country, to mark which a lecture had been arranged by a National Organizing Committee comprising a galaxy of eminent lawyers. The speaker was Justice MN Venkatachaliah who has headed one after the other the country’s apex court, the National Human Rights Commission and the National Commission for Review of Working of the Constitution. And, noticeably, chairing the event was the sitting Chief Justice of India, VN Khare, who just about seven months earlier had touched the hornet’s nest by volunteering some obiter dicta about uniform civil code. 

It was in John Valamattam’s case decided in July 2003 by a three-judge Bench of the Supreme Court, in which Chief Justice Khare had chosen to conclude his separate judgment with the words that "Before I part with the case, I would like to state that Article 44 provides (for) a uniform civil code… the provision is based on the premise that there is no necessary connection between religion and personal law in a civilized society…. (such a) code will help the cause of national integration by removing the contradictions based on religious ideologies." The central idea and the phraseology of these observations had been borrowed from Justice Kuldip Singh’s judgment in Sarla Mudgal’s case decided in May 1995 to which the Chief Justice made a pointed reference.
The cases of Sarla Mudgal and John Vallamattam had nothing common in them – the former raised a serious instance of inter-personal conflict of laws whereas the latter did not even remotely arise out of the diversity of personal laws in the country. It related to the legality of Section 118 of the Indian Succession Act 1925. Applicable to Christians only this provision, banning the making of a will for religious purposes in certain situations in the last moments of one’s life -- was challenged in the court by a Christian religious functionary. With due deference to the learned Chief Justice, there obviously was no occasion for talking of uniform civil code – much less for repeating the Sarla Mudgal observations about it that had been criticized for their inaccuracies by a number of impartial critics, and the true nature of which had later been adequately clarified by the Supreme Court itself in the two leading cases during 1997-2000. 

Chairing Justice Venkatachaliah’s lecture on the subject, the learned Chief Justice said nothing about uniform civil code in his introductory remarks, leaving it to the distinguished speaker alone to dwell upon it. The distinguished jurist began with highly philosophical formulations, went into lessons of history, and bit by bit built an impressive thesis on the true nature of the Constitutional provision relating to uniform civil code in its correct perspective. An eye-opener as the extremely well-reasoned lecture was, I am sure all those present there would have realized the fallacy of popular but often unpalatable arguments given by all and sundry in favour of an immediate implementation of the uniform civil code directive under the Constitution. The learned speaker had sighted me among his audience and after the lecture said to the lawyer-journalist Krishan Mahajan "I was mindful of his intimidating presence", narrating how I had challenged even Justice Krishna Iyer’s statement that Goa was governed by a common civil code. His remark did show that in formulating his views he had been cautious enough to read and take note of all relevant literature. My 1995 book Uniform Civil Code: Fictions and Facts, mainly a critique of Justice Kuldip Singh’s views expressed in the context of uniform civil code in the Sarla Mudgal case of that year, does demolish the story of the application of a common civil code under the erstwhile Luso-Indian territories –giving in English translation full text of the Hindu Usages Protection Decree of 1887 still in force there. Uniform Civil Code: Fictions and Facts By Prof. Tahir Mahmood

In fifty-four years of the post-Constitution era all sorts of people have indeed said all sorts of things about a uniform civil code – true and false, self-contradictory, imaginary and based on misconception or misinformation. The judicial stand in the matter too has not been uniform. In the 1994 case of Maharshi Awadesh a plea for a writ directing the government to enact a uniform civil code had been dismissed by the Supreme Court. Next year in the Sarla Mudgal case itself the second judge on the Bench, RM Sahai, warned that "the desirability of uniform civil code can be hardly doubted. But it can concretize only when social climate is properly built by the elite of the society, statesmen among leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change." He must have been anguished by how self-serving politicians, pretending to be champions of social reform, misuse some judicial opinions on uniform civil code to push the Nation into unhealthy polemics. And in the Pannalal case of 1996 a great humanist judge, K Ramaswami, had said that "a uniform law is highly desirable but enactment thereof in one go may be counter-productive to the unity and integrity of the nation." 

Unprincipled protagonists of UCC unscrupulously trying to draw support from chosen judicial observations do not mean social reform; they only want to see personal laws of the minorities scrapped by one legislative stroke. This is evident from the fact that those who are never tired of overplaying the apex court’s occasional remarks on uniform civil code care least to read the same its verdicts counselling abundant caution in this regard; what interests them are only some judges’ personal remarks on uniform civil code made merely as gratis dicta. Justice Venkatachaliah’s very thought-provoking lecture on the subject -- delivered incidentally on the martyrdom-anniversary of, to quote the apex court’s observations in the St. Xavier’s case of 1987, "the greatest son of India who laid down his life for the sake of justice to the minorities" -- must be pondered over by all concerned. Read with the attention it deserves, it may set many records straight and remove many misconceptions and misgivings.
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