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

INTERVIEW: Tahir Mahmood
"The goal of the Constitution is purposeful reform not a purposeless uniformity"  

Professor of Law, Delhi University, and former chairman of the National Commission for Minorities is a legal authority with 30 books to his credit. He spoke to Firoz Bakht Ahmed on the controversial issue of uniform civil code. Excerpts:

Tahir MahoodYou have been writing extensively on the issues of uniform civil code and personal laws. How do you react to Justice VN Khare’s recent remarks about a uniform civil code in the John Vallamattam case ?
It was nothing extraordinary or unprecedented. What the Chief Justice of the day said has been said in several earlier cases also by some other judges of the apex court. Since 1985 at least in eight cases reference has been made to uniform civil code provision of the Constitution. Among these were also decisions in the famous Shah Bano and Sarla Mudgal cases.

In what context have court judgments made such a reference?
This was done mostly in the context of gender justice. Personal laws of all communities are being misused to deny women their lawful rights. Some people think that a new uniform law may take care of this problem. The judges also have often talked of uniform civil code in this context. 

Did the John Vallamattam case also involve the issue of gender justice ?
No. This case related to the Indian Succession Act which is a comprehensive law of intestate and testamentary succession. Enacted in 1925, it was not a new law and had only consolidated various statutory laws on the subject then in force, including the first Indian Succession Act and the Parsi Succession Act, both of 1865, the Hindu Wills Act of 1870 and a host of laws on wills and estate administration. Incorporation of such diverse laws into a single statute made it very complex in its applicability. The law of wills under this Act applies to the Hindus subject to special conditions specified in a schedule but is not applicable to the Muslims at all, and selectively governs other communities. This irritating lack of uniformity in its application may have prompted the Chief Justice to remind the government about the need for a uniform civil code. 

What was the specific issue involved?
Section 118 of the Act restricts the freedom of making a will for religious purposes -- if the maker of such a will dies within one year and is survived by close relatives, the will becomes ineffective. This provision never applied to the Hindus, Muslims, Buddhists, Jains and Sikhs, and since 1991 has been made inapplicable also to the Parsis on their demand. In the John Vallamattam case its applicability to Christians was challenged. It was struck down by the court, saying that the discrimination inherent in it was un-constitutional. As the restriction imposed by it did not emanate from any religious principle and was not part of any personal law, it had to be judged for its legality in the light of the Constitution. The court ruling in effect protected, rather than curtailed, a religious right of the Christians.

Can the personal laws be judged in the light of the Constitution?
This is a complicated and controversial matter expert opinion on which has never been uniform. The Constitution says that no ‘law’ should be inconsistent with the fundamental rights enshrined in its Part III. Whether ‘law’ in this context includes also the personal laws is a question not free from difficulties. The Supreme Court has emphatically said in the Mathura Ahir case of 1980 relating to Hindu religious law that "Part III of the Constitution does not touch upon the personal laws." A learned judge of the Delhi High Court has observed that "cold" principles of constitutional law cannot be enforced in the privacy of homes. 

What is your own opinion?
Personal laws are found in two different forms. Some of these are available in old or new legislative enactments – like the Hindu Marriage Act 1955 and the three other Hindu-law Acts of 1956, the Dissolution of Muslim Marriages Act 1939 and the Muslim Women Act 1986 , the Christian Marriage Act 1872 and the Indian (Christian) Divorce Act 1869, the Parsi Marriage and Divorce Act 1936, etc. All these are State legislations although their sources are, to varying extent, located in religious rules. On the other hand, there are the un-codified personal laws – like the Hindu laws of joint family and partition and the Muslim laws of marriage and succession. These two different categories of personal laws may not be treated on the same footing.

Are you personally in favour of a uniform civil code?
Uniformity in itself cannot be an ideal. The provision for a uniform civil code was inserted into the Constitution to pave the way for the reform of Hindu personal law through the Hindu Code Bill , then pending before the Assembly and facing stiff opposition on religious grounds. When the Constitution spoke of uniformity in civil laws it did so with a view to assuring justice and equality to women, children and men , among all sections of the people of India in the whole country. The goal was purposeful family-law reform -- on uniform lines as far as possible – and not a purposeless uniformity. The goal is indeed being gradually achieved through the medium of legislation and judicial decisions. This answers the call of the Constitution.
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