Will such a code in a multi-religious, multi-cultural society like India infringe on freedom of religion? No, it will not interfere in the way of worship of any religion.
By Justice Narendra Chapalgaonker
Recently, the Union government requested the Law Commission to examine the enforceability of a common civil code. At least, prima facie, it appears to be only a tracer shot and not a firm proposal. This move from the central government is a sort of declaration that it is alive to the reminders from the Supreme Court about Article 44 of the constitution of India. It is also an assurance to the voters that the ruling party is still wedded to some of its old promises.
Whatever may be the reason behind this step by the government, it is bound to trigger fresh debate, where old arguments will be repeated. The main objection of those who oppose the idea of a common civil code is that in a multi-religious and multi-cultural society like India, it would infringe on freedom of religion guaranteed by the constitution.
Misconceptions about the scope of religious freedom give rise to most of such objections. A common civil code, in whatever form it is enacted, will not interfere in the way of worship and ethical values cherished by any particular religion. If, in the absence of a modern state, religion has started governing some of the secular aspects of family and social life of an individual, someday jurisdiction will have to be transferred to a secular state when it has come into existence. Old rules governing these secular aspects of life will have to be replaced by rules which would respect human rights and a modern concept of individual liberty.
CHURCH VS STATE
To what extent should a secular state interfere in the personal law of a citizen with intent to reform? The demarcating line between the jurisdiction of church and state has been a contentious issue for centuries. A common civil code, to some extent, would be an attempt at social reform, using the law as an instrument. All social reforms are always opposed by religious orthodoxy. The framers of the constitution considered a proposal to make a common civil code compulsorily applicable for all citizens. Unfortunately, a sub-committee considering the question of a common civil code rejected it by majority and voted in favor of putting it in the directive principles. We presumed that the spread of education would make people aware of human rights and make them more liberal. The experience is otherwise.
In the 1950s, an attempt to bring certain reforms in Hindu law by enacting a Hindu Code Bill was frustrated, not by any political party in opposition but by a strong group within the Congress which had accepted secularism and equality as its creed. The conflict resulted in the resignation of Dr BR Ambedkar and the provisions were enacted in fragments after the atmosphere had cooled down. If the government is serious about changes in the civil law governing families, it should resort to the same method by which Hindu Law was amended in 1955-56. Why not think about bringing in a comprehensive bill on maintenance applicable to all citizens which would undo the mischief which was lawfully done by Muslim Women [Protection of Rights after Divorce] Act? It is not necessary that all the provisions common to all should be contained in a single statute.
Another option can also be considered. An act protecting rights like maintenance, property and adoption should be enacted but made optional. Whosoever opts for that at the time of marriage by a specified procedure should be protected by it irrespective of any religious mandate to the contrary. All disabilities opposed to the provisions of this act should be declared inapplicable to that couple.
Therefore, a debate is welcome. The only rider is that it should not go round and round the same arguments which are hardly relevant and are likely to be political in nature.