Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse

Email

Whatsapp

Facebook

Pinterest

Twitter

Copy link

THIS STUDY OF THE Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse is based on the 2009 M.K. Nambyar Memorial Lectures which we delivered together in two separate, yet related, lectures.

We are grateful to Mr K.K. Venugopal, Senior Advocate of the Supreme Court of India and trustee of the M.K. Nambyar Memorial Trust, for inviting us to deliver these lectures and for the kind hospitality during our visit to this great and wonderful country of India.

The first iteration of the 2009 M.K. Nambyar Memorial Lectures was delivered in New Delhi on October 7, 2009. We are very grateful to the former Chief Justice of India, Justice K.G. Balakrishnan, for finding time in his challenging and heavy schedule to preside over the session, and we were deeply honoured to speak under his chairmanship that evening. We wish to thank our colleague and friend, the former Attorney General of India, Mr Soli Sorabjee, for his very kind introduction.

ARTICLE 44 OF THE CONSTITUTION of India provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Even though over 60 years have passed, this has not been implemented. In the 2009 M.K. Nambyar Memorial Lectures, I attempted together with my colleague, Hiram E. Chodosh, President of Claremont Mekenna College and former Hugh B. Brown Presidential Professor of Law of the University of Utah, S.1. Quinney College of Law, who was a partner in this comparative study, to provide a blueprint for a possible course of action for securing of a uniform civil code for India in a comparative context.

Together with President Chodosh, I approached this study with great care and high sensitivity. This sensitivity I acquired in research and in practice. I have conducted research and offered courses on comparative law, culture, and religion in many leading universities in Europe, North America, and Israel. I have held public offices in Israel including cabinet minister of religious affairs and senior deputy mayor of Jerusalem.

Over the years, I have done extensive research on issues of law, culture, and religion. My experience includes serving as minister of religious affairs in the Israeli government, a country with a pre- dominant Jewish population and a large Arab minority consisting of Muslims, Christians, as well as a significant Druze community. Furthermore, I have served as Senior Deputy Mayor of Jerusalem, a city with a pluralistic religious population, of central importance to Judaism, Christianity, and Islam. The issues, and sometimes disputes, during my term in both offices had to be handled with a high degree of sensitivity.

ARTICLE 44 OF THE CONSTITUTION of India provides: 'Ethe State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Even though over sixty years have passed, such a code has not been implemented.

In the 2009 M.K. Nambyar Memorial Lecture, I attempted together with my colleague, Hiram E. Chodosh, the then Dean and Hugh B. Brown Presidential Professor of the University of Utah, SJ. Quinney College of Law, and now President of Claremont McKenna College, to provide a blueprint of a possible model for securing a uniform civil code for India in a comparative context." Our study involved learning, based on the experience of other nations, how to resolve the challenge of introducing the civil code while keeping continued respect for community laws and social customs, as well as how to formulate the relationship between religion and state.

We studied the reforms introduced in Turkey-a Muslim country which shifted from rule based on Muslim law to a secular republic with a modern civil code in the broader sense of the term, including in personal law. This took place in the 1920s under the initiative and vision of Atatürk. Furthermore, we paid special attention to the study of the Civil Code in Goa, which came under the rule of India in 1961. Likewise, we studied in detail the shift of Nepal from a religious Hindu monarchy to a secular democracy in the dramatic changes of 2006 to 2008.

Based on the comparative study and a detailed analysis of the local context of the Indian Constitution and the social and legal environment, we arrived at a number of conclusions as to the possible recommended course of action to further the constitutional mandate to implement a uniform civil code for India. In order to facilitate securing a uniform civil code, we propose four guidelines that we think will make the application of such a code as easily acceptable as possible for all the citizens and communities of India. This set of proposals should alleviate the suspicion of the Muslim community or the Hindu majority community that a uniform civil code will altogether remove their traditions. On the other hand, it should also ensure that certain central values are maintained by all law, whether civil law or the parallel religious law, particularly in order to prevent discrimination and unfair practices against women in a democratic country.