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Can a Common Civil Code Correct Archaic Personal Laws?

personal laws are a ticking time bomb

By Raman

The constitution defines India to be a secular nation, and recognizes equality before law as one of the fundamental rights of all citizens. However, when it comes to a category of laws called personal laws, how you are treated by law will depend on which religion you are born into. The roots of this practice can be traced back to British India when, in 1772, then Governor-General Warren Hastings prescribed separate sets of laws for resolving “personal” issues of Hindus and Muslims. I would give him the benefit of doubt that he only wanted to preserve as much of the prevalent social norms instead of imposing a set of foreign (British) laws that would be unacceptable to most. However, that we have not made much progress in the realm of personal laws – especially relating to some of the so-called minority communities – even after more than 200 years since, can be attributed to divisive vote-bank politics of successive governments and not to an effort to preserve our multicultural social ethos.

The alternative to these diverse and complex personal laws is to have a single common civil code that will free individuals from the clutches of both law and religion in most personal matters, and also ensure that everyone gets the justice that they deserve. The present system of religion-specific personal laws violate both these principles of freedom and justice.

My opinion on this subject is consistent with my view that Government and laws are a necessary evil, and the lesser the interference of Government in the lives of people, the better. For anything that concerns only the person himself, the Government should have no say at all, and this is what I have emphasized while standing up for a person’s right to drive without seat belt or to even commit suicide. However, as long as they live in a society, their freedom cannot be unqualified and there may need to be restrictions based on what is acceptable to the society at large. The least that can be done is to make these restrictions equally applicable to all, irrespective of their individual beliefs.

As long as we live in a society, freedom cannot be unqualified and there may need to be restrictions based on what is acceptable to the society at large.

Thus, while it is bad enough to force people to wear helmets while riding, it is even worse to make exceptions for some based on their religious beliefs. If Sikhs can be exempted when wearing turban, everybody else should also be extended that privilege. I know of many young men who are as religious about their spiky hairstyle as Sikhs are about their turban. Unfortunately, their religion is less important because they are not numerous or organized enough to be a useful vote-bank.

One of the important areas covered by Personal Laws relates to marriage.

One of the important areas covered by Personal Laws relates to marriage. | Photo Courtesy: Passel

Once again, being part of a society means one cannot live life fully on their own terms.

In what concerns interaction between two or more individuals who are capable of taking their own decisions, it would again be ideal for them to agree on the terms of that interaction beforehand and then abide by it, thereby keeping government and anybody else out of it. One of the important areas covered in personal law relates to marriage, which would serve as an excellent example in this category. When two individuals are entering into marriage, they can agree on the terms for that arrangement. This could cover a whole range of details including how they share their income, who pays for the telephone connection, who stays at home to look after the kids, and who gets what if they decide to part ways. There may even be clauses that allow one or both of them to marry somebody else while still being in this marriage, provided the terms of that marriage are not in contravention to the terms of this. As long as they both agree to these terms, the duty of law should be limited to ensuring that each of them fulfill their obligations as per these terms.

For the sake of convenience, there could be standard templates for these terms that conform to most common religious traditions, which would save individuals the trouble of having to draft these agreements themselves, and also allow them to adhere to specific religions without having to do too much of research. There could also be a default contract, with a minimal set of terms, that would be applicable in the absence of any other contract.

Once again, being part of a society means one cannot live life fully on their own terms. So there could be laws on what can go into these contracts and what cannot, and on who can make these contracts. For example, the society might deem that those below the age of eighteen cannot marry or enter into a legally binding agreement, or that polygamy or polyandry is not allowable, or that marriage between two individuals of the same gender is illegal. Without going into the merits of each of these specifics (which can only be based on my own moral compass), I would say that such laws are okay in a democracy as long as they are achieved through consensus and are equally applicable to all.

Without even going into the merits or demerits of individual personal laws, I trust that a case has been made out that if democracy, secularism, freedom and equality are ideals worth pursuing, a minimal common civil code that leaves room for individual choice is the best path in that direction.

Avalokanam aims at presenting a worldview from the perspective of India, its culture, and spiritual heritage.

This article was originally published on Avalokanam

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