The one thing i’ve noticed about laws is that they keep increasing. This perhaps is the greatest problem I find inherent in the laws of any country. What I ask is ‘why must we have more laws?’ if the purpose of laws is to ensure a civilized society then should they not be reducing.
A simple example- when a baby is born there are an infinite number of rules and regulations imposed by his/her parents that keep reducing as he grows older and more mature. When finally he/she attains legal majority at 18, the parents too give some lax and greater freedoms because they believe that the child now has grown up. The child has learnt to behave, to conduct himself, to act responsibly and under no circumstances will he/she intentionally commit any such act that shall in the future be a source of embarrassment or shall lead to the generation of ill will amongst other sections of society.
If viewed in this perspective there is something fundamentally wrong with law. In this paper I shall discuss the following-
1) Purpose of law – is it being fulfilled
2) Uniform civil code
This article does not include a single case law. It does not include any judgments, commentaries or precedents. What this article includes is you. The questions lie around you the answers within. This article is but a means to evoke those questions. To force you to think.
Law started of as a public service, lawyers were not supposed to charge a fee. People put whatever they could afford in a pocket at the back of the black coat symbolic of the profession. The aim of law today however is to blind one and all. Not only is the lady in the court blinded and hoodwinked so are the clients and of course we the people. Cases are pending for years on an end. Legal provisions are used as hindrances and obstructions. The intentions of laws are maligned, misinterpreted and reinterpreted such that the entire object for which they were once created loses value. Is our legal system here to uphold the useless and often absurd never ending battles of the rich or for the dispensation of justice keeping in mind equity and good conscience. The 42nd amendment act passed during the emergencies, the changes made to the Hindu succession act during the tenure of Jawaharlal Nehru and many other such examples show how blatantly the laws have become playthings of the rich. If we also include the covert aspects of this then the number of laws which seem to be everything but that which they are unbound. There exist too many loopholes, too many intricacies and to many ways of tallying justice or of completely pulverizing it.
Martin Luther was right. We will have to repent in this generation not merely for the vitriolic words and actions of the bad people, but for the appalling silence of the good people.
I ask you now,
What is the purpose of law and what have we transformed it into.
Why has our profession today become one wherein credence is given to the most perverted analysis of law?
Why has the focus shifted from law being the source of dispensation of justice to an object in the hands of a few with purposeful loopholes and ambiguous areas open to interpretation.
Most importantly- why has law become such that a person can’t fight for his own right
Of course one realizes that in the midst of all this also if one truly wants the systems can be made to function. P.N Bhagwati is living example of that. He has taken judicial activism to a new level with his interpretational skills especially in relation to article 21- right to life and liberty. What is sad is that in the end he had to play the same game played by the rest the only difference being the mens reas (intention). The profession needs people like that to ensure its proper functioning. As the upholder of justice. As the messiah promising light as the blind lady of justice , who sees no differences between people should law be so hidden beneath layers that it requires an excavator to understand the true nature and purpose. The change is a result of our change from an age where ideas were more important than men, when people said ‘pran jaye par vachan na jaye’ to an age where the zeitgeist is ‘na baap bada na bhaiya sabse bada rupaiah’
In his book called Brahman E=mc2, James Wallace says that the reason for stagnancy s because the people in power at that point want that power to remain theirs. You see if laws are simplified and the UCC (described hereafter) is implemented the need for lawyers too shall reduce. In fact in many cases lawyers are not really required. They have made themselves feel required.
The uniform civil code
Article 44 of our constitution gives as a directive principle of state policy a uniform civil code. By far one of the most controversial articles and a very pertinent one.
The UCC aims at creating a uniform code for the dispensation of justice so that the various complications arising out of personal laws like the Hindu law or the Muslim law are nullified and people are governed not by different sets of laws as is the case today but by one common civil code. For example if a Muslim and a Hindu marry, in the case of a divorce, the courts will first decide under whose laws will the case proceed and later see what the conditions in the household were. Another interesting example. If a Hindu changes his religion and becomes a Muslim, he now has the legal ability to marry five women. similar problems arise in property disputes as well with people using the complicated and diverse laws to suit their ends We need to understand that men pick what suits them and choose to ignore the rest which is why the entire problem. The UCC on the other hand forgets your religion, your local customary laws and lays down that which is relevant. Take for example the abolition of sati by William bentick. Had he too given consideration to customary and religious laws, we might still have been witnessing our mothers and sisters burning themselves alive on funeral pyres. Despite the obvious benefits the UCC has met with a lot of opposition.
1) Political clashes- the B.J.P has been supporting the cause of the UCC but faces opposition from the other parties like the Congress and the Samajwadi parties.
2) Social clashes- our country as has been repeatedly stated y many lives not in the cities and towns but in the thousands of villages. The meaning and implication of this provision has still not been properly explained to them which is why there is a lack of support from these parts. Even amongst the intelligentsia there is a lot of conflict regarding the implementation of the UCC
3) Religious clashes- some things history is proof of and need not be reiterated.
What we need to understand is that there is more in common between a peasant Muslim and peasant Hindu then there is between a Hindu peasant and say the Ambanis.We have let barriers creep into our mind from whence they’ve proceeded to pollute the systems. Is it not time for us to rise above these petty issues and understand that our laws should be aimed at justice and justice solely.
Laws should be for the administration of justice and that’s it. We should not be fighting about whether Mitakshara School is better or dayabhaga, whether the Hanafi School is better or the ithana ashari is. Instead we should be fighting on facts of law, fighting to ensure that justice prevails and that its domain forever increases and expands. The current system provides refuge to violators of laws. It gives opportunities for people to misuse the laws and bend them according to convenience. The solution is simple-
To go back from where I began- reduce the laws and simplify the laws. The Indian constitution is referred to as a lawyer’s paradise primarily because it is the longest and most detailed. This gives more scope for, as previously explained, the prevailing practices of law i.e. Perverted re-interpretation of laws to ensure everything but justice.
We say the system is bad. Its bad because we let it go bad. We are the ones who have polluted the system and we are the ones who need to clean it up. We need not a Batman or a Superman- just ordinary people willing to uphold that which law truly stands for, people willing to take it back to the level from which it has fallen.
A uniform civil code made after proper deliberation with ideas from all over the country reflecting the true nature of things as they stand is what is imperative. It should matter not what your religion says, what should mater is what justice, equity and good conscience say… what should matter is that laws should provide justice…. Lawyers should not be a necessity for justice, rather a luxury.
Om Namah Shivay
Let there be peace.
BA.LLB Student, University Of Petroleum and Energy Studies, Dehradun
Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]