Monday, February 18, 2008

My State, My People

We all have a strange way of asserting our identities. Living within a heterogeneous group of communities, we will see ourselves as belonging to a particular caste or religion; within our country residing outside State, we will feel our State identity emerging to the fore; when we travel in a foreign country, we will constantly realize how different we are as Indians in so many ways; and don’t you remember what Sunita Williams said about how she felt seeing our globe from the Space, - one single world without boundaries?! Only by transcending to a higher plane of living at every turn literally, can you forget your narrow identity and see yourself as a part of larger milieu.

The chauvinistic and inflammatory rant of the Maharashtra Navnirman Sena chief, Raj Thackeray, against North Indians living in Mumbai, targeting in particular the Bollywood icon, Amitabh Bachchan, for establishing a college in a village in U.P. and making a wayside diatribe against Lallu Prasad alleging that Biharis were being favoured in employment in the railways have cast a spell of violence in Mumbai. In Mumbai, they not only stop a railway recruitment exam, they even vandalise a railway office. In Assam , they prevent Biharis from taking a railway recruitment exam. In Bihar , they retaliate by beating up Assamese students in trains. Back in Assam again, they retaliate for this retaliation by killing Biharis. Bal Thackeray went to Goa and urged audiences to keep non-Goans out of Goa by implementing a permit system. If the Cauvery Tribunal passes an award about the sharing of waters between Karnataka and Tamil Nadu, the farmers of Karnataka go on a rampage burning buses from Tamil Nadu. It is a recurrent theme. Here again, lift yourself to a higher plane and see what is happening around the world. We are not alone in our parochial ways.

The politics of the smallest state in the Australian Federation, Tasmania, provides a clear example of parochialism, both at the state level, with the north/south divide while also strongly influencing the interaction of Tasmanian leaders with their mainland counterparts. Canadian foreign policy is said to be constrained by the parochial economic and material interests of the provincial governments. The emergence of regionally based political parties at the federal level, such as the Bloc Québécois and the former Reform Party, has also helped promote parochial regional interests within Parliament. The nature of the electoral system in Ireland and the weak powers of Local government reinforce parochial voting patterns and politics. The US Supreme Court has dealt with issues ranging from justification of applicability of a particular State law to transactions covering inter state commerce (Phillips Petroleum co v Shutts et al (472 U.S. 797; 105 S. Ct. 2965)) to favouring domicile in a particular region for employments within a particular State ( United Building & Construction Trades Council of Amden Country and Vicinity v Mayor and Council of the City of Camden (465 U.S. 208; 104 S. Ct. 1020)) to further issues of differential State taxes for entities established outside State (Metropolitan Life Insurance Co et al v Ward et al; Board of Education of Oklahoma City v. National Gay Task Force; Fugate v New Mexico (470 U.S. 869; 105 S. Ct. 1676)) to still further issues of complaints of conspiracy of not allowing a legal practitioner of one State to pass the bar examination in another State (Hoover et al v Ronwin et al (466 U.S. 558; 104 S. Ct. 1989)). In everyone of the cases, the US Supreme Court has stood over parochial tendencies and reiterated a pan-US identity.

Among nationalist ideologies fascist ideologues taught that national identity was the foundation of individual identity and should not be corrupted by foreign influences, especially if they were left-wing. Nazism condemned Marxist and liberal internationalisms as threats to German national unity. Fascists in general wanted to replace internationalist class solidarity with nationalist class collaboration. The Italian, French, and Spanish notion of integral nationalism was hostile to individualism and political pluralism. Unlike democratic conservatives, fascists accused their political opponents of being less patriotic than they, sometimes even labeling them traitors. Portuguese fascists spoke of ‘internal foreigners’ who were ‘anti-nation’. The point is, if you look for differences, they exist everywhere. In the way we talk; in the way we dress; in the languages that we speak; in the temperaments that we have; in the colour of the skin that we are born with; in the intellectual capabilities that we are endowed with; in the financial resources that we possess and what have you. Uniform laws cannot bring uniformity here. At every stage, we shall pull ourselves above the narrow ring that we are drawing around us. It could come through spiritual practice; it could come through constant training of the mind seeing these differences as going to make such a lovely mosaic of infinite variety, the same way as variegated flowers of different hues and fragrances making the garden a true delight to behold. Beyond Article 14 is what your attitude is!

Wednesday, February 13, 2008

Uniform Cvil Code

Constitutional objective of Uniform Civil Code through succession law?

The law commission of India has placed its recent report to the government making suggestions for change in the Hindu Succession Act. All communities, except the Muslims, are governed by statutory laws relating to succession. Joint Family system and the laws governing them may be rooted in customary law but in the matter of succession, the Hindu Succession Act has displaced the efficacy of the customary law. The Hindu Succession Act itself states through a provision that in the matter of properties held by joint family members, the property will go by survivorship recognized under the Mitakashara customary law and not by succession. The provision carves out an important exception of operating succession law in the presence of a female member. This section also underwent a further change when through the 2005 Amending Act, a daughter was a deemed coparcener and therefore if a Hindu male in a joint family died leaving only father, sons and daughters, the Hindu Succession Act would have still applied and rule of survivorship would not apply. A share in the property would not go to the surviving father, even if he was a member of the coparcenary with his children.

The Succession law for Hindus provided for a share to a widow, son, daughter and mother equal shares. The father had no share. The Law Commission now recommends that the father should be treated as a co-heir with the mother and together they would take one share. The change advocated does not reduce the share of either the widow or the children of the deceased. It takes a slice of the share only from the mother. If in the same situation, the parties had been Muslims, the primary heirs would have been father and mother taking for themselves one sixth share each. The sons and daughters would have taken the residuary share in such a way that the sons would have taken twice as much as the daughters. If the family had been Christians, under the Indian Succession Act, one-third share would have been taken by the widow and the remaining two-third would have been equally by the sons and daughters. Neither the father nor the mother would have taken any share.

When our social living is more or less similar and the division of the society through various religions is merely a matter of chance, there could be no fairness for providing such varying chances as regards heritability and the quantum of share depending on which religion the parties belong to. Inter-religious marriages, which could be solemnized under the Special Marriage Act without surrendering the religious identities of the spouses, provide for the adoption of heirship and shares to be worked through the Indian Succession Act. It was thought at that time that it is the first step towards the uniform civil code. Nothing like that happened. You may not be able to afford to touch the Muslim personal law , without offending the sensibilities of Muslims and they will be just apprehensions that if a uniform civil code were to be brought, it might be forcing the Muslims to accept what a majority community of Hindus wanted. Now was a chance of bringing an amendment to law for Hindus which recognize father and mother as primary heirs, the same way as the Muslims law lays down. There is so much to borrow from the Muslim law of succession for Hindus and Christians. Although Muslim law grants a share to the son twice as much to a daughter, it is still fair because the daughter invariably walks out of the family at the time of marriage with a gift from her father and brothers which is even entered in the marriage register (Daphthar). The wife after all goes into a family of the husband and it is only equitable that a daughter’s share is less than the son’s share, given the social reality of marriage gifts and her displacement from her own parental home and a shift to her husband’s home who, as a son in his family, takes a larger share.

The Hindu Succession Act has been a fertile ground of litigations in courts. The understanding of law by inter-play of customary law and the statutory law of succession has only yielded to several confusing results. A limited interest given to a woman in recognition of her right of maintenance and the issue whether such an interest would enlarge or not is debated in ever so many cases relating to the property held by a Hindu female. The disqualification provisions and the special rules for dwelling houses and pre-emption have also contributed to the large sum of case laws. The Muslim law, on the contrary, is so certain in its terms that there is very little litigation on the heritability or the quantum of share in any court. This is particularly significant that the certainty has been achieved in spite of the fact that there is no codified Muslim law on succession and the law derives its inspiration from the Quran and Hadis. It is also a matter of interest that the Muslim granted a share to the female and recognized her as a full owner ever since Islam was founded. The progressive West did not accord to a woman absolute ownership on succession till the beginning of the 20th century. The Hindu Succession Act itself made the important change of recognizing a female as a full owner only through 1956 enactment.

Courts have never been able to push for the agenda for realization of a uniform civil court. In the wake of Shah Banu’s case (1985) providing for a right of maintenance beyond the period of Iddat, the court expressed that there was a need for the state to take the initiative to secure a uniform code. The community took to streets in protest; the Maulvis sirened from the high minarets of mosques. All this gave rise to a change of law giving the primacy of decision to Muslim Personal Law Board and the option to the litigants to contest the case in court or seek for decision of the Board. Some thought it to be restoration of sanity; some doubted it as a measure of appeasement. In Sarala Mudgal(1995), the Supreme Court underscored the need for a uniform civil code in the light of Article 44 of the Constitution. In Pannalal Bansilal (1996), while adverting to regulating the administration of Hindu religious institutions and endowments, the Supreme Court treaded the issue with certain trepidation and said that though the uniform code was desirable, it could go counter-productive to the unity of the nation. In Ahmedabad Women Action Group (1997), in light of challenge to provisions in the Hindu Succession Act providing for full powers of disposition by will his undivided share in the joint family property, it sounded even more hesitant about common civil code, but with Lily Thomas (2000), in the context of Hindu wife complaining against her husband’s conversion to Islam and his prospect of taking another wife, the Supreme Court had come a full circle when it went on to clarify that it had never issued any direction for codification of a uniform personal law. Well then, this is the reality; It will not be possible to realize a common code through a court initiative and it could well be argued that a homogenous set of laws are not even necessary to secure a homogenous Indian identity.

However, it is necessary to recognize the strength of the law of any particular community when an amendment is brought for the law of another community. Shall we now state that the Hindu Succession Act undergoes a change recognizing the father as a primary heir, the same way as Muslim law has already done and that we are borrowing the concept of treating the parents as primary heirs from the Muslim personal law? Is the occasion again propitious that we re-examine the provision of Indian Succession Act and provide for a similar amendment applicable to Christians also?