Last month, the Ministry of Law and Justice sent a communication to the Law Commission requesting it to examine and report on all issues pertaining to a >Uniform Civil Code . Since then, the move is being hotly debated in the print and electronic media. Both the supporters and opponents of the action are invoking the Constitution in their favour. However, players on both sides of the tug of war are arguing their case without doing the necessary homework.
Media stories — some of them supposedly quoting past and present Law Commission heads — are floating misinformation of all sorts. One such story stated that the 18th Law Commission had submitted two reports in 2008 recommending a >Uniform Civil Code but the “United Progressive Alliance (UPA) government sat” on them. A few days later, another story talked of two “hurdles” which the present Law Commission has “run into” in connection with its official assignment relating to a Code. Both were, to say the least, based on half-baked knowledge and misunderstood facts.
Story of two reports The two reports of the 18th Law Commission cited in the first of these stories were written by me as its only full-time member and adopted by it in toto . One of them recommended certain amendments to the Special Marriage Act of 1954 to rid it of its discriminatory provisions. The other called for a central law for compulsory registration of all marriages in compliance with the Supreme Court directions in this regard. Neither of these examined, or reported on, a Uniform Civil Code. On the contrary, the Commission had refused to adopt a third report written by me that urged a revision of the extremely messy Muslim Personal Law (Shariat) Application Act, 1937 which determines the scope of Muslim law. The reason for its rejection was an outcry by some Muslim religious leaders who saw in it an attempt to pave the way for a Uniform Civil Code.
According to the second media story, the two “hurdles” in the way of the present Commission in examining the feasibility of a Uniform Civil Code are: The Shariat Act of 1937 and a Bombay High Court judgment, given by the late M.C. Chagla, that gave the Muslims “freedom to opt for the 1937 Act”.
The Bombay High Court ruling — pronounced in a case on the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 — had nothing to do with the Shariat Act.
Never in the history of the Law Commission has either the issue of Muslim law reform or a Uniform Civil Code been referred to it by any government. In the Sarla Mudgal case of 1995 dealing with the issue of bigamy by non-Muslims after a “conversion” to Islam, a Supreme Court judge had advised the government to request the Law Commission to prepare, in consultation with the National Commission for Minorities, a comprehensive report on these matters. However, the advice remained confined to the pages of law reports.
The step taken by the present government in this direction is surely unprecedented. Whatever may be the alleged motive, there is no legal ground for objecting to it. Indeed, the Law Commission exists for the purpose of conducting studies on controversial legal issues, and fixing its terms of reference is the government’s prerogative. In the present case, the Commission has to “examine and report on” the issue of a Uniform Civil Code and not to draft it — drafting of laws in any case is not the Commission’s job. Law Minister Ravi Shankar Prasad has rightly clarified that “whatever report the Commission gives is its discretion”.
In the spirit of the Constitution As per Article 44 of the Constitution, the state shall “endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”. The direction, notably, is not for Parliament to enact such a code straight away but for all organs of the state to make efforts to “secure” uniformity in civil laws.
The apex court of the country has repeatedly reminded the government of this policy directive but has always respected its non-justiciable nature and refrained from issuing any direction. Hopefully, the Law Commission too will keep in mind the true nature and implications of Article 44 while answering the present government’s request.
The note of caution in the apex court’s Sarla Mudgal judgment — “the desirability of uniform civil code can be hardly doubted but it can concretise only when social climate is properly built by the elite of the society and the statesmen, instead of gaining personal mileage, rise above and awaken the masses to accept the change” — merits serious thinking by all stakeholders.
Tahir Mahmood is a former member of the Law Commission and ex-Chairman, National Commission for Minorities.