UCC Prevents Citizens From Being Forced To Follow Own Religion, Compelled Diversity Should Be Ended: Harish Salve
Senior Advocate Harish Salve has said that the Uniform Civil Code prevents the Indian citizen from being forced to follow his own religion and that UCC is not against diversity but is against compelled diversity. He said that diversity should spring from the heart.
"The Uniform Civil Code doesn't prevent you from following your own religion, The Uniform Civil Code prevents the Indian citizen from being forced to follow his own religion", Salve said.
He cited as an example, a pending case in which he is appearing, where the question is whether a philanthropic Muslim can create a Trust. The Bombay Waqf Board argued that he cannot. If you are a Muslim, it has to be a Waqf, it cannot be a Trust, the Board argued as per Salve. "If tomorrow the law allows Muslims to create a Trust, does it mean that a devout Muslim cannot create a Waqf? Of course, he can", he said in an interview given to Times Now.
He also said that in most countries, the law of inheritance is the civil law of inheritance, which is based on General Equity. He said that in the United Kingdom there there are Solicitors who advertise on their websites that they can make a Sharia compliant Will for Muslims. "..which means you have a freedom to dispose of your property as you like, but if you are a devout Muslim and want to confirm to the Sharia, we will write your Will in a way that it follows the Muslim Law. Will the Uniform Civil Code allow that? Of course, you can write any Will you like", Salve said.
Responding to a question about why people like Salman Khurshid and Kapil Sibil say that the UCC is against the principles enshrined in the Constitution, Salve said, "The Constitution says that the government must recognize a person's right to live in accordance with his own religion. But it also recognizes freedom of conscience. Does the UCC take it away? No, it doesn't. If you are a Catholic and you are steeped in the belief that Catholics do not divorce and you are in a bad marriage, the law allows you to divorce, you will not divorce. You will go to the Church and the Priest will say, don't divorce. Do you want to follow the priest and say I will not divorce? Don't divorce. If you say I am not going to be under the yoke of my customary law, I want to reach out and divorce, you will do it".
Salve said that he knows some very eminent Muslims who got their marriage registered, although they had a nikah years ago. He said that they had their marriage registered to bring it out of the Muslim customary law and bring it under civil law. He said that the UCC will do away with the need to do that and individuals will have the freedom to follow either the religious law or the civil law.
Harish Salve said that Gandhiji and Ambedkar wanted uniform civil laws because it is freedom. He said that historically, religions have disempowered women and that UCC will empower women. "This is empowering those who do not want to be told what to do by the heads of their religion", he said. He said that UCC does not take away anyone's right to follow their religion.
He also said that the draft UCC may probably plainly say that the Special Marriage Act and the Indian Succession Act will apply to every Indian.
Dealing with the argument that Hindus will lose the privilege of HUF, he said that the "first blow" or "first rescue" came to the Hindu Undivided Family when the English brought the Married Woman's Right To Property Act, which meant that women got a life interest and the second in 1956 which said that when a Hindu dies and he has a daughter, his properties go by succession and not by survivorship. "That was the end of the HUF", he said. He said that HUF only gave benefits for tax purposes, which is not a legitimate concern of people who worry about Constitutional law.
He said that Hindu Customs have been as oppressive as any other and that they have undergone major reform. "There were Hindus who seriously believed in Sati. Reformed that, because we said in modern society this thing has no place.... and when the Sati law was enforced, you saw the rumpus which happened. It's not that the Hindu Customs have not been reformed. The amendments made about a decade ago to the Hindu Succession Act almost put an end to the HUF", he said.
"As a Lawyer, I am telling you, this is the biggest myth which is being perpetrated that the Hindus have given themselves some benefit that the Muslims haven't", he said in the context of the HUF.
On the allegation that UCC is anti-minority, Salve said, "I am a minority community. I am Christian. Why is it against me? If I want to follow the Christian rules of marriage and divorce and inheritance can I? Of course, I can. I don't want to".
He said that even even in Islam the issue of Polygamy is a troublesome issue. He said that he is not a scholar of the Quran, but it doesn't give a blanket charter to have four wives. "If you put that to one side, what prevents you from following the Quran? The Quran says don't do certain things or the Quran says do certain things, you can do all that because what the Uniform Civil Code gives you is the freedom to follow that", he said. He said that if you accept that Muslim women have a right to divorce under Khula, then UCC only recognises the right and it cannot be anti-minority.
He said that despite UCC, people can have matriarchal succession by Will. "What prevents me from saying everything I own will go to my wife and I will leave it to my wife to make a Will of how she wants to distribute the property. Then that becomes matriarchal. So that's matriarchal, but that is by my choice. Not because I am born somewhere and I hate it, but I have no choice", Harish Salve said.
On the argument that UCC will end "diversity", the former Solicitor General said, "Compelled diversity should be ended. Diversity should spring from the heart. The strength of our diversity lies in all of us wanting to do our own thing and yet living together and having fun. No law compels us to celebrate Diwali if you are a Christian or celebrate Christmas if you are a Hindu, and yet we do it with great gusto. That is our diversity".
Salve said that when somebody starts telling you what you should do and what you should not do, that is the end of freedom of conscience.