Academic journal article The George Washington International Law Review

What Would Your Founding Fathers Think? What India's Constitution Says-And What Its Framers Would Say-About the Current Debate over a Uniform Civil Code

Academic journal article The George Washington International Law Review

What Would Your Founding Fathers Think? What India's Constitution Says-And What Its Framers Would Say-About the Current Debate over a Uniform Civil Code

Article excerpt

I. INTRODUCTION

It has been described in India as "three words that can make our political class quail."1 The phrase is "Uniform Civil Code," and the concept it represents sounds simple: The Indian Constitution directs the central government to work toward establishing a Uniform Civil Code that applies to all Indian citizens.2 Yet the government has not enacted a code in the nearly sixty years since India adopted its constitution, and this remains a divisive issue in Indian politics.

India's diversity is staggering, with a population of over 1.17 billion people,3 twenty-two national languages, and 844 additional dialects.4 It is a secular nation5 in which more than 80 percent of the people are Hindus;6 where if merely 2 percent of the population practices a particular religion, it means that faith has approximately 20 million adherents;7 and where Islam, the largest minority religion, is followed by 13.4 percent of the population, over 138 million people8-a group that, by itself, would be the tenth most populous country in the world.9

With so much diversity, it is difficult to achieve uniformity. Thus India continues a system in which personal law-law relating to family matters, such as marriages, divorces and inheritances-is not uniform for all, but instead may still be governed by a person's religion.10 For example, Islamic law, rather than a generally-applicable, religion-neutral statute, might determine the amount of money a husband owes his wife in maintenance when a Muslim couple divorces.

Naturally, opinions differ on this issue within India. There are those who say a Uniform Civil Code is a necessity in a secular nation, to ensure equal treatment under the law for all citizens.11 There are those-many of them members of minority religions- who fear the motives of their opponents in the majority and believe that their traditions deserve protection in a secular nation that guarantees them religious freedom.12 There are civil courts that must rule on what practices are religious and what practices are secular, with the consequences of those decisions sometimes extending far beyond the parties in the courtrooms. And there are politicians ready to take advantage of the disagreement. The consequences include communal tensions, fear, distrust, and alienation, all of which prevent India from fully realizing the vision its founders had for the nation at its inception.

This Note explores the current debate in India over the necessity of-and perhaps even the constitutional requirement of-a Uniform Civil Code to replace the existing system, in which personal law can vary based on religion. This Note focuses on Muslim personal law, the source and subject of much of the debate. It also explores what India's Constitution has to say on the issue, in an attempt to determine whether the drafters of that document-the country's founders-would have supported or opposed contemporary calls for the institution of a Uniform Civil Code.

Part II examines the development and goals of the Indian Constitution, paying particular attention to Articles 25 and 26-which pertain to religious freedom-and to the Indian conception of secularism. It also describes Article 44, which establishes a Uniform Civil Code as a directive principle of state policy. Part II closes by exploring some of the difficulties Indian courts have had in dealing with religious issues, and the consequences of their decisions, including communal tensions and growing demand among some Hindus for a Uniform Civil Code. Part III examines the text and structure of the Indian Constitution and the intent of its framers concerning a Uniform Civil Code, and explains why the state goal of a Uniform Civil Code must be subordinate to the constitution's guarantee of religious freedom.

Part III shows that the current political situation in India and the alienation many Muslims currently feel would make the imposition of a Uniform Civil Code inconsistent with the founders' vision of India, not to mention inappropriate and unwise. …

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