India is a democratic and secular country and the followers of all religions have been given religious, educational, social and a range of other constitutional freedoms. Hence followers of all religions have been conferred the right to follow their own personal laws according to their own religion. At the same time, there are certain articles in the constitution (e.g. section 44) in which the constitution has encouraged the government to endeavor to secure for the citizens a uniform civil code throughout the territory of India, declaring the above fundamental rights as transitional.
Obviously this is a constitutional flaw, or in other words, is a sheathed sword against the fundamental rights of minorities, which is always hanging on the necks of minorities, because it is tantamount to giving the minorities their rights with one hand and taking them away with the other hand. The current BJP government is trying to introduce a bill in the Parliament taking advantage of this constitutional flaw and introduce a bill of uniform civil code.
For implementation of uniform civil code, the government and its allied institution rely on the slogans of national unity and national integrity. They reiterate that through its implementation they will end the gender discrimination based on religion. While even some secular circles have warned the government against unilateral and forced implementation of uniform civil code and opined that this action instead of serving the purpose of national unity and integrity will prove the vice versa.
In This regard, the views of Justice K. Kannan, a former judge of the Punjab and Haryana High Court, are very important. In one of his articles on the subject published in the daily newspaper The Hindu on July 13, he urged the government to refrain from any such action and to maintain the multi-religious and multi-cultural image of the country. The arguments put forward by Justice Kannan in this regard are also of great significance.
The first reason put forward by him was that a number of personal laws (Hindu, Muslim, Christian, Parsi) are in force in India. According to him no personal law is complete and just in itself. The Uniform Civil Code, if brought in now, will be perceived as an apology for hegemony of the Hindu laws over the personal laws applicable to Muslims and Christians. Whereas the Hindu law itself is passing through the stage of reformation.
The second point raised by Justice Kannan was that though he criticized the Muslim Personal Law too in some minor issues, nevertheless he has acknowledged the superiority of Muslim personal law in number of matters of principle and fundamental importance over the other personal laws.
For example comparing the Hindu, Muslim and Christian personal laws with regard to the inheritance of father and mother, he has proved the sheer superiority of Muslim personal law and said that in Hindu and Christian laws father and mother inherit only with certain conditions whereas in Muslim law both of them are considered as primary heirs.
With regard to the women’s right to property, he was of the view that the grant of absolute right to property by succession to a female was not accepted for Hindus till 1956 when Section 14 assured such a right. Muslim law recognised full right of property to a woman since the days of Prophet Muhammad. What is more interesting in this regard is that only several centuries before the whole of the modern West accorded to a woman property rights.
With regard to the testamentary succession, Justice Kanaan was of the view that many of the litigations in courts are fallouts of heartburn over disinheritance of widows or preference of sons over daughters. It is the unrestricted power of disposition through will that causes many a contest to the dispositions. The approval or non-approval of legal heirs is not taken into consideration at all in this matter. Justice Kannan regarded the Muslim law as rational in which it does not allow a bequest to more than a one-third outside-the-line succession without the concurrence of natural heirs and up to a two-thirds share with the consent of natural heirs. He also said that a law similar to the Muslim law has been introduced in Pudicherry and Goa limiting the unlimited power of disposition and reserving a compulsorily share to legal heirs. Justice Kanaan also supported a law in India similar to the Muslim law of testamentary succession to contain the litigations regarding testamentary succession.
Justice Kannan regarded marriage as a contract under Muslim law as more secular than retention of the concept of the marital bond as a sacrament in the Hindu and Christian communities. He also said that the provisions for divorce by mutual consent that have been introduced in the Hindu Marriage Act in 1956 or under the Divorce Act applicable to Christians in 1869 are actually a movement towards the Muslim understanding of marriages. Justice Kanaan hitting back at those who oppose polygamy, questioned them shall they in the same breath make illegal even consensual adult relationships outside marriage or concubinage as cognisable offences?
It should be borne in mind that Justice Kanaan has presented only a few examples of the superiority of the Muslim personal law in his above article. Otherwise if we undertake an in-depth study of Islamic laws in light of modern scientific discoveries and available social data along with a comparative study of laws of other religions, the wisdom, rationality and objectivity of all Islamic laws will appear before us. So today we are in need to prepare such kind of literature, which will bring forward these aspects of Islamic law objectively and factually before the countrymen. This will serve two purposes: One it will refute the objections raised against the Muslim personal law, and second it will prove the authenticity and veracity of the Holy Quran and Hadith. This work is also important from the point of view that it is our faith and belief that the stipulated rulings al-ahkam al-mansoosa of the Holy Qur’an and Hadith are immutable and irreversible. They remained unchanged for 14 centuries and will remain so till the Day of Judgment, because they are revealed from the Almighty.
A major historical and miraculous evidence towards these personal and family laws of Islam being from the Almighty God which remained unchanged fundamentally and principally for fourteen hundred years and today’s civilized world, despite its enormous scientific advancements, and its immense intellectual magnitudes and capabilities is forced to adapt them, how is it possible that they could have been devised by an illiterate person of Arabian desert some 14 centuries!
Anyhow, Justice Kanaan’s views regarding the implementation of Uniform Civil Code in India are very significant. We believe that the issue of implementation of the Uniform Civil Code in India instead of being made a political problem should be made an academic issue and the followers of all religions in addition to being provided freedom to follow their own personal laws should also be provided the opportunity to freely and unforcefully reform their personal laws at their will.
Well, in India there is already an optional civil code in the form of the Special Marriages Act, 1954, which contains laws on marriage, divorce, maintenance, succession and other matter of personal laws for those who wish to be outside the religious laws.
