XI LOK SABHA DEBATES, Session IV (Budget)

XI LOK SABHA DEBATES, Session IV (Budget) 

XI LOK SABHA DEBATES, Session IV (Budget)

Friday, March 21, 1997 / Phalguna 30, 1918 (Saka)

*t87

Type of Debate: PRIVATE MEMBERS BILLS

Title: Constitution (Amendment) Bill (Omission of Article 44 etc.) moved by
Shri Bhagwan Shankar Rawat on 6.3.1997. (Contd.- Not Concluded)
Motion for Consideration

TEXT :

CONSTITUTION (AMENDMENT) BILL - Contd.

(Omission of article 44, etc.)

MR.DEPUTY-SPEAKER: Now we shall take up item No.19 - further consideration of
the motion moved by Shri Bhagwan Shankar Rawat on the 6th March, 1997. Shri
Banatwalla is to continue his speech.

SHRI SURESH PRABHU (RAJAPUR): Sir, last time when Shri Banatwalla was
speaking, the Chair had given a ruling that immediately after him, I would be
able to speak because he had made certain remarks on which the clarification
had to be provided by me.

SHRI G.M. BANATWALLA (PONNANI): That was about Illegal Migrants. Today we
are not discussing Illegal Migrants. You forgot. Today we are discussing the
Uniform Civil Code. So, the hon. Member has forgotten and mixed up the
things.

MR. DEPUTY-SPEAKER: Anyway, you speak now.

SHRI G..M. BANATWALLA(PONNANI): Sir, It was there even before that. So, there
was no such thing.

MR. DEPUTY-SPEAKER : Shri Banatwalla, you have already spoken for 21 minutes.
Please be brief.

SHRI G.M. BANATWALLA (PONNANI): Sir, this is a very important thing. Let us
have a national debate on this.

MR. DPEUTY-SPEAKER : You have already taken 21 minutes.

SHRI G.M. BANATWALLA (PONNANI): I will cooperate.

Mr. Deputy-Speaker, Sir, I had already submitted that the concept of a
uniform civil code is based on certain fallacies. Now, unfortunately, various
extraneous matters had also been brought in during the discussion. For
example, there was a reference to polygamy among the Muslims. It is a point
extraneous to the concept of a common civil code because there may be a
uniform civil code with provision for bigamy. It is possible. Therefore, such
extraneous matters have been brought in.

For example, in Goa, the polygamy among the Hindus is protected under
certain circumstances. Therefore, I say that this question of polygamous
marriages and others were brought in which are extraneous to the concept of a
uniform civil code. They may be relevant for what they call as reform in the
personal laws of certain communities. Such reform, as far as the Muslim
personal law is concerned, is not needed. However, I may point out that the
rate of polygamy among the Muslims is the lowest as compared to the various
other sections of the people.

I may refer to the report of the Committee on the Status of Women in
India which was presented in 1974. It considered the incidence of polygamous
marriages as per a study of the census of India in the year 1961. The report
gives us the incidence of polygamous marriages among various sections of our
people and these figures also show that among the tribal communities the rate
of polygamous marriages is 15.25 per cent and it is 7.97 per cent among the
Buddhists and 6.72 per cent among the Jains and it is 5.8 per cent among the
Hindus and it is the lowest of 5.7 per cent among the Muslims.

Now, Sir, not only this - but the incidence of polygamy among the
tribals is on the increase. During the decade 1931-40 it was 9.53 per cent.
During the decade 1941-50 it rose to 17.53 per cent and during the decade
1951-60 it rose further to 17.98 per cent. All these things are already there.
But then, as I said, various extraneous matters have been unfortunately
brought in. There was a reference ..

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SHRI G.M. BANATWALLA (PONNANI):

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that is the resolution of conflict.

Therefore, the discussion here is most welcome. For example, we are told about
divorce. The Prophet, may peace be upon him, has said that divorce is the
worst thing among all the permitted things. The Prophet, may peace be upon
him, has further said that when a divorce is pronounced, heavens shake. These
traditions, these Sunnah, have their impact on Muslim society also.

Then, I must point out here what is said in Yusuf Rowther vs. Sowramma
AIR 1971, Kerala 271. At that time, Justice V.R. Krishna Iyer was a judge in
Kerala High Court. Justice V.R. Krishna Iyer said about the Islamic Law of
Divorce :

"Indeed a deeper study of the subject discloses a surprisingly
rational, realistic and modern law of divorce."

These are the various factors. As far as divorce is concerned, the United
States of America leads the entire world. I will not take the time of the
House by going into the history of divorce, by tracing the history of divorce
among Hindus. But as you know very well, there was no concept of divorce
during the Vedic period. Thereafter, during the Smriti period, the idea of
divorce was put forward by Narad and others. In the third period, we have
discovered divorce as a remedy for ill-conceived, inconvenient and
ill-honoured marriages. After the Hindu Marriage and Divorce Act, 1955 and its
major amendment in 1976, the incidence of divorce has been on increase.

However, all these things, as I said, are extraneous to the concept of
the Uniform Civil Code. The Uniform Civil Code is advocated on the ironic
belief that it will promote unity. As I have already submitted earlier and in
good detail, it will divide the nation.

Mr. Deputy-Speaker, Sir, last time we were told about the Muslim
countries. Here, I must clarify the misunderstanding that is there. Let it be
known that no legislation has been introduced to change the traditional
Islamic law in countries like Saudi Arabia, Libya, Yemen, Bahrain, Afghanistan
and others.

I am not taking the whole list. In the case of Syria, Iraq, Pakistan
and certain other countries, the few changes brought about are only in the
nature of replacing any particular principle of one school of Islamic
jurisprudence by another school of Islamic jurisprudence. So, it is clear that
the entire work is within the framework of the Islamic jurisprudence. In the
case of two countries, perhaps, there is a break from the Shariat, but there
also, there is a strong movement to go back to the Islamic Law. Nevertheless,
as I said earlier, we look not to the Muslim countries, but to the Quran and
the Sunnah for our guidance.

Now, the hon. Member has referred to the judgement in Sarla Mudgal's
Singh had said that all these questions of marriages, divorce, etc. have
nothing to do with religion and therefore, the articles 25, 26 and 27 are not
attracted. But then I must point out here that in the same case, we had
Justice R.M. Sahai. He gave a separate note and in the separate note Justice
R.M. Sahai said:

"Marriage, inheritance, divorce, conversion are as much
religious in nature and content as any other belief or faith."

This is from paragraph 44 that I have quoted. The hon. mover of the
present Bill totally omitted to bring this particular fact and extract before
this House. I must, therefore, say that on this question, the two judges have
differed and since there were only two judges, there is no majority ruling
also. Justice Kuldip Singh could add such an opinion in his judgement. It is,
therefore, strange and it is contrary even to article 145 (5) which says:

"... no such opinion shall be delivered by the Supreme Court
save with the concurrence of a majority of the Judges present
at the hearing of the case, ..."

But here there were only two judges with two different opinions on this
particular aspect.

Mr. Deputy-Speaker, Sir, I have already submitted that the concept of
a Uniform Civil Code is, in essence, a negation of our cherished objective of
`Unity in Diversity'. The concept is destructive of all the plural nature of
our society. It will be the end of secular democracy in our country. I must
reiterate that the Uniform Civil Code will prove a disintegrating force. The
various communities, the tribals and even the Hindus, all have their own
personal laws. Look at article 371A (i) (g). These articles specifically
protect the customary laws and social practices of the Nagas and the Mizos.

The Constitution was amended and people of Nagaland and the people of
Mizoram were given this particular guarantee to bring them in the national
mainstream and to put an end to the secessionist activities that were there.
Therefore, I say that let us not run after mere mirages and concepts that will
divide the entire country. Even Hindus, as you know, follow different schools
of thought or jurisprudence whatever you may like to say. Any forcible
imposition of any Uniform Civil Code upon all is bound to create a lot of
tension in our country.

As far as the Muslim Law is concerned, it is a divine and revealed
law. It has its roots in the Quran and in the Sunnah, that is to say the
traditions of the Prophet (peace be upon him). The Muslim Personal Law
represents the religious obligation of a Muslim as a Muslim. Therefore, I must
say that the rules contained therein are not optional. They are the boundaries
which cannot be crossed.

1602 hours (Shrimati Rita Verma in the Chair)

The Quran says:

"These are the limits ordained by Allah. Do not go beyond them
and if anyone exceeds these limits, he is the transgressor."

This is Surrah 2 Ayat 229.

Sir, I must make it extremely clear that a Muslim as a Muslim cannot
and will not surrender to any abrogation or interference with the `Shariat'.
The `Shariat' is dearer to a Muslim than his own life. I must, therefore,
impress upon this House that it is a fallacy to consider that Uniform Civil
Code will promote unity. No. On the contrary, as I said, it will bring about
lots of dissensions. I have also pointed out that in the United States of
America the laws differ from State to State and nobody says that these
differences in the laws are a threat to the unity and the solidarity of the
United States of America.

Here the personal laws of any community have never been an obstruction
on the path to unity and integration whether at times of peace or whether at
times of war. Therefore, these are fallacious things and insistence on this
concept merely brings nothing but dissensions and tensions. I must refer to
what Dr.Ambedkar said in the Constituent Assembly when this Article 44 about
Uniform Civil Code was under discussion. He said:

"No Government can exercise its power in such a manner as to
provoke the Muslim community to rise in rebellion. I think that
it would be a mad Government if it did so."

The tribals all over our country and several communities have their
own laws. These laws have never obstructed and come in the way of our national
unity and integrity. I am happy that, at least, the present Government cannot
be called mad according to the dictum of Dr. Ambedkar. I must thank the Prime
Minister and let it go on record that we are grateful to the Prime Minister
and the United Front Government that they had the courage to file very
recently an affidavit in the Supreme Court saying that it is not possible for
the Government to impose any Uniform Civil Code forcibly.

SHRI MOHAN RAWALE (MUMBAI SOUTH - CENTRAL):

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SHRI G.M. BANATWALLA (PONNANI): You may even accuse Dr. Ambedkar that he has
done it for Muslim votes, but I think that shows the closed mind that is
there.

I will not take more time of the House. Before I forget, I was also
told that there are criminal laws of Islam and why do we not insist upon them.
That is another fallacy. You know that in the Independence movement, we had a
very large presence of the Muslim Ulemas and the religious personalities. An
important reason among various reasons for the large presence of the Muslim
Ulemas and the religious personalities was the interference of the Britishers
in the Muslim law. The Britishers went on abolishing various aspects of the
Muslim law which had created this particular situation. There was a thinking
that with independent India, Muslims will have the run of these laws as usual.
Today also, in the same spirit, let the Sharia Courts be established as an
integral part of our judiciary and then let the criminal laws of Islam also be
imposed. It will be in the interest of the nation to do so.

Madam Chairperson, I appeal to the Mover of the Bill asking for a
Compulsory Uniform Civil Code not to create dissensions, not to generate
tensions and not to divide the nation. I appeal to the Mover of the Bill that
in the interest of unity of the country not to talk about such disintegrative
and disruptive idea as the Uniform Civil Code and to withdraw his Bill. Of
course, I am sure, the Government will also make such an appeal. But I am
trying to take the precedence. It is good enough that we have had such a
discussion and since a long time, I have been speaking on the various aspects
and the fallacies that are there among them.

I appreciate the concern for gender justice and I assure him that as
far as we are concerned and our system is concerned, it is most concerned
about the gender justice. If there are other communities who want any changes
in their own personal laws, it is a matter for them to decide. Of course, I do
not want to take up the time of the House by going into the question of the
gender justice, and by now putting before you all the various provisions which
say that Islam has given gender justice to the maximum and in the most
happiest form. It is more than what you find in any other prevalent system, I
claim. Of course, we are open for a discussion on that. The present
discussion, it may serve or may not serve any purpose, was limited only to
Uniform Civil Code.

There is a parrot-like repetition to have it and to keep tension and
pressure in the country. I hope that with all this discussion, the Bill will
now be withdrawn and that we will continue to march forward hand-in-hand to
solve the various problems of the development concerning the nation.

(ends)

1610 hours

SHRI CHITTA BASU (BARASAT): The Bill has been brought under the provision of
the Directive Principle of the Constitution. It is very necessary to
understand what constitutes Part IV of the Constitution says. From Article 39
to Article 51, there is a long list of wishes and statements made by the
Constitution signifying that the State will make endeavours to frame the
State's policy on the basis of that principle. Let me read out Article 44 from
the Constitution itself so that there may not be any misunderstanding as to
what I like to say in order to make my position clear on the subject. Article
44 states as follows: -

"The State shall endeavour to secure for the citizens a uniform
civil code throughout the territory of India."

Let us begin from Article 39: -

"The State shall, in particular, direct its policy towards
securing --

(a) that the citizens, men and women equally, have the right to
an adequate means to livelihood;

(b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the common
good;

(c) that the operation of the economic system does not result
in the concentration of wealth and means of production to the
common detriment;

(d) that there is equal pay for equal work for both men and
women;

I say that there are a large number of items which the Constitution proposes
on which the Government should frame its policies so that that objective can
be gradually achieved.

MR. CHAIRMAN (PROF. RITA VERMA): I request the hon. Members not to make
running commentaries.

SHRI SURESH PRABHU (RAJAPUR): It is an empty House.

SHRI CHITTA BASU (BARASAT): It is not a question of emptiness. It is a
question of principle. I also want to be on record on this Bill by expressing
what my Party has given me as the Party's view.

SHRI SURESH PRABHU (RAJAPUR): This is the time for Private Members Bills. Can
we also have Party issues to be added in this?

SHRI CHITTA BASU (BARASAT): It is not that I am a depoliticised animal. I am a
political animal. I do not believe in the theory of de-idealisation. I do
believe in ideology. We are here to represent ideology. We are here not to be
yesmen or good men.

These are the many aspects of the fundamental objective of the
Government. May I put a simple question to you as the Chairperson, have the
Government been able to implement all those Directive Principles?

No. It has not been done. If you allow me to say, I would say that
within the present system, it will never be able to implement all those
objectives unless a new social order is created. The new social order can be
created only by a social change. In what way that social change will take
place is a matter of debate and Parliament will become the instrument of the
social revolution or some other methods are necessary. It is a great
ideological battle. We shall have to continue that battle inside and outside
the House. I would say that all these things have not been implemented. I
further want to say that the Government will not be able to implement these
things unless the old social order is changed by a new political system.

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