XI LOK SABHA DEBATES, Session V (Monsoon)

XI LOK SABHA DEBATES, Session V (Monsoon) 
XI LOK SABHA DEBATES, Session V (Monsoon) Friday, July 25, 1997/Sravana 3, 1919 (Saka)

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Type of Debate: PRIVATE MEMBERS BILLS
Title: Further discussion on the Constitution (Amendment) Bill, 1996 moved by Shri Bhagwan Shankar Rawat on the 6th March, 1997.(Omission of Article 44,etc.) (Contd.- Withdrawn) Motion for Consideration TEXT : 15.52 hrs

SHRI I.D. SWAMI (KARNAL): Last time we were discussing about the Common Civil Code. A lot of debate has already taken place on this in the Press and both inside and outside the House. The very important point is, why in these 50 years we have not been able to carry out the directive given by the wisdom of the framers of the Constitution. This year when we are celebrating the Golden Jubilee of our Independence, for the unity and integrity of the country, we have to think whether Common Civil Code should be enforced or not. A Bill is before the House seeking to enforce a Common Civil Code in this country.

The Common Civil Code was given as a direction, a path, shown by the framers of the Constitution. No doubt it is not justiciable, but the Directive Principles are as fundamental for the governance of the country, as the fundamental rights are. If we go through the debate of the Constituent Assembly on this question, we would find that the stalwarts like K.M. Munshi, Ananthasayanam Ayyangar and others had again and again assured the Constituent Assembly at that time, that the point before them was whether they were going to consolidate, unify their personal laws in such a manner that the way of life of the whole country in course of time, be unified and secular. We always talk of secularism but the basic thing is that we want to divorce religion from personal laws, from what may be called as `social relations' or from the rights of parties, as regards inheritance, succession, marriage, etc. What have these got to do with religion? But by and large the bogey always raised is that enforcement of a Common Civil Code or framing of a Common Civil Code shall interferes with the religious sentiments of the people, it will interfere with the habits of a particular community.

The social relations may need reformation of certain customary laws, if there is any scope for reformation in them. There is no religion which is involved in it. Take for example the Hindu Law itself. If we look at Manu, Yajnavalkya and the rest of them, most of the provisions of the Hindu Law, which had already been made, will run counter to the injunctions but still the Hindu Law was framed. Hindu Marriage Act was passed. Hindu Adoption and Maintenance Act was passed. Hindu Succession Act was passed. This bogey was never raised that we must consult the persons or the community concerned or whether the country is ready for it or not. But now whenever the question of Common Civil Code is raised, you always ask us to consult, wait or go slow. In these 50 years we have gone so slow that we have almost forgotten about the injunctions provided in the Constitution by the Directive Principles of this country. After all, we are an advancing society. We are at a stage when we must unify and consolidate the nation by every means without interfering with religious practices.

Common Civil Code does not interfere with any religious practice. It does not come in conflict with the religious freedom enshrined in the Constitution at any stage. In the fiftieth year of our freedom and after 47 years of adoption of our Constitution, when a directive was given and a path was shown to us, let us put our foot down and say that the matters of social relationship, matters of marriage, matters of inheritance and matters of accession are not matters of religion at all. They are matters where reformation is needed, where some improvements are needed.

In this connection what we need is a secular legislation. We always boast about secularism and say that we always stand by secularism. But so far as a secular legislation in connection with these matters is concerned, we always say, `No, we should go slow, we should consult the people, we should not make hurry about it.' The importance of this was emphasised by Article 44 of the Constitution. Let us not waste any more time. We have already wasted about 50 years. The isolationist view, the isolationist outlook of bringing in religion or religious practices in any progressive and reformatory legislation, we must all give up. The sooner we do it the better would it be for the country not only because the Directive Principles enjoin upon us to do it but even the highest court of this land, the Supreme Court, has said again and again, from earlier than Shah Bano case and even later, that if we want to honour the integrity of this country, if we want to save the unity of this country, if we want to save the the country as a whole, we must have a common civil code that was enjoined upon us by Article 44 of the Constitution.

This attitude was perpetrated under the British rule that personal law is a part of religion. This particular isolationist outlook had been fostered by the Britishers and the British courts. Now is the time when we must forget about what Britishers have been telling us, what the British courts have been upholding.

In fact, if we go back into the history, even the history stands witness to it that Allauddin Khilji made several changes which went against the Shariat. Though he was the first to establish the muslim sultanate in this country, he had the boldness and courage to make certain changes for the sake of the unity of the country, for the sake of the reformation, and for the sake of the rights of women and others. At that time, the Quazi of Delhi had objected to some of those references. The reply of Allauddin Khilji to the Quazi of Delhi was:

"I am an ignorant man. I am ruling this country in its best interest. I am sure, looking at my ignorance and my good intentions the Almighty will forgive me when He finds that I have not acted according to Shariat."

If Allauddin Khilji in those good old days could say so, how is it possible now that this country, while entering the fiftieth year of its freedom, cannot at all make up its mind to have a common civil code only on the false plea that it interferes with any religion or any religious practice which in fact it does not? We have to shed this attitude, the isolationist attitude, which was perpetrated, which was fostered by the Britishers and the British courts.

I will give a few examples of what has been happening in many other ucountries where there are no Directive Principles and where the Constitution does not say so. Even then while debating the particular provision in the Constituent Assembly, the late K.M. Munshi had assured the House at that time that the provision had been debated and discussed in many forums, many Committees and also that the House had accepted the principle.

16.00 hrs.

What was that principle which had been accepted by the then Constituent Assembly? It was that if a religious practice followed so far comes in the way of a secular activity or falls within the field of social reformation or social welfare, it will be open to Parliament to make laws about it and without infringing, of course, the fundamental rights of any minority.

Sir, nowhere in advanced Muslim countries, the personal laws of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Now, take for example, Turkey, Italy and Egypt. No minority in these countries is permitted to have any such rights. What happened when Shariat Act was passed? It is before us. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the khojas and cutchi memons were highly dissatisfied but they had to submit to it most unwillingly, of course. This is what has been happening in this very country when the Shariat laws were amended.

In Europe, in America, in Italy, in Germany and in France or wherever we may go, in those countries they have a Civil Code. There are Hindus, there are Muslims, there are Catholics, there are Christians and there are Jews also but different personal laws are not perpetrated, perpetuated there and there are no personal laws. In those countries - which has a Civil Code everyone, whoever goes there, whether he goes from Pakistan, whether he goes from India, or whether he goes from any part of the world, every minority has to submit to the Civil Code. But this is a very strange phenomena in this country only, where we swear by secularism every day and every morning and every evening. We do that without enforcing a Common Civil Code despite the Directive Principles having provided for a Common Civil Code. In 50 years' time we have not been able to have a Common Civil Code and on one pretext or the other and for one reason or the other, we have been postponing this important Legislation and we have always been abrogating rather disobeying the directions, the path shown by the Constitution makers. In their wisdom, they have seen and shown to us, that if the unity and integrity of the country can be maintained, we must fall in line and we must have a Common Civil Code all through the country. If in other countries, all religious people living there can obey their one Civil Code and have an application of Common Civil Code; can have their Civil Code; and can accept the Civil Code; why can not we, in our country, accept a Common Civil Code?

The point, however, is whether we are going to consolidate, unify the personal law in such a manner that the way of life becomes in course of time unified and secular. That is the only position. After all, we are an advancing society and we must at some stage or the other consolidate these laws.

I would only submit that the Bill which has come up before this House, should be wholeheartedly supported. I stand here to support this Bill.

SHRI GIRDHARI LAL BHARGAVA (JAIPUR):