Introduction Principles of equal respect for persons equality

Introduction: • Principles of equal respect for persons, equality before law and equal civil and political rights of citizens are central to liberalism and in different degree part of all liberal democratic States. • But the existence of cultural and religious diversity in contemporary societies raise problems of how these principles are to be interpreted and applied. • Almost every modern society includes groups whose way of life are different from other and wish to preserve this, but some group norms clash with basic features of liberal democracy.

State’s Dilemma • The State is confronted with questions of how to accommodate different groups without losing its social cohesion, how to reconcile the demands of equality and recognition of cultural and religious difference. • These important questions were faced by India when the nation started its journey after independence. The most important question for Indian democracy was how to define the rights of citizens. • The conflicting pulls between the rights of minorities to cultural and religious identity and the concern for an integrated nation were to become major debating issues regarding individual and group rights. • Various communities having different traditions and cultural values would like to preserve them and thus the personal laws of each community are direct extension of these cultural and traditional values.

Personal Laws Vs Constitutional Laws • But liberal democracy has a responsibility towards all their citizens to uphold their fundamental rights. Some of the family and property laws are not in line with liberal democracy norms of sexual equality. Should they be systematically overridden, why should personal law system continue in the secular democratic republic that India is. • As stated earlier there is the existence of different personal laws for Hindus, Muslims, Christians and Parsis in the realm of marriage, divorce, adoption, maintenance and succession.

Women’s Demand for Comprehensive Code • With the participation of women leaders in the National Movement demand for comprehensive code was raised by Kamladevi Chattopadhyay, Sarojini Naidu, Muthu Laxmi Reddy, Begum Shah Nawaj and other prominent members of the All India Women’s Conference (AIWC). • Indian National Congress also ratified the demand but could not initiate it effectively. The division of personal law once established could not be revoked.

Personal laws in Independent India • In the Independent India the issue of personal law was debated in the Constituent Assembly in the context of maintaining balance between rights of individual and demands of recognition of various communities. • It became necessary in plural society that India is to assure the minorities of their right to cultural identity and the continuance of the personal law was a marker of this assurance. • However this was opposed by liberals like M. R. Masani, Hansa Mehta, Raj Kumari Amrit Kaur, K. M. Munshi, Alladi Krishnaswami Ayyer etc. • The Constitution recognizes the right of different religious communities to have their personal law as flowing from the freedom of religion.

Debate on Universal Civil Code (UCC) • The diverse sources of Personal Laws, the uneven development within different communities, politicisation of women’s rights during colonial rule and the aggressive majoritarianism of recent times provide the backdrop for the debate on UCC. • UCC means that there should be common law in the country to regulate the issues like marriage, divorce, maintenance, adoption, inheritance, will and endowment of all the citizens in India irrespective of their religion. • It is a matter of debate whether a UCC will ensure national integration and communal harmony. • One of the judges of the Supreme Court Justice Kuldip Singh, noted in a case that UCC would strengthen national integration and that the minorities should give up their commitment to the two nation theory and agree to a UCC.