TRACING THE PAST AND PRESENT
Historical Bakground- The Colonial Rule
Since the advent of their rule, the colonials maintained a policy of non-interference in the religious affairs of the subject, carrying on the methods of Mughals and other Islamic rulers. They gauged the discontent and rebellious tendencies that might ensue over interference in the domain of personal laws, and therefore evaded it. The laws over the religious matters that cropped up later during the regime was only at the initiative of the Hindu leaders, e.g., Raja Ram Mohan Roy led the movement for abolition of Sati in 1829. Ishwar Chand Vidyasagar succeeded in his campaign for Widow Remarriage, and also led to the Age of Consent Act 1891, a step against child marriage.
The British however refrained from interfering in the domain of Muslim personal laws, which remains uncodified till date, and is the focal point of the discussions on a Uniform Civil Code (“UCC”) today. The same is not unanticipated given the divide-and-rule policy that the British had adopted to sustain their rule in India. Thus, the British rather complicated the already diverse and cosmopolitan cultural situation in India.
Historical Bakground- The Constituent Assembly
The gift of independence bestowed the Constituent Assembly (“CA”) with a heaven-sent opportunity to formulate a comprehensive UCC once and for all. But an unintended repercussion manifested in the form of partition. Despite the carving out of Pakistan as a Muslim state, India retained its secular identity and embraced the Muslims choosing to remain in India. Though in minority, Muslims found a voice in the Indian CA. This led to a vociferous opposition of the UCC by the Muslim leaders.
Naziruddin Ahmed asked for an “approval by community” proviso for any change that would affect the personal laws. B. Pocker wanted to make UCC optional, and inapplicable in case one chooses to stick to the personal laws. However, a few like Hussain Imam took a balanced stance and vouched for UCC while pointing out the obstacles, which made it unfavorable at that time. While K.M. Munshi vehemently argued against unwarranted interference of religion in the form of personal laws and Alladi Krishnaswamy Ayyar contended it as enforcing amity, and not destroying it. Ultimately, the middle ground was reached, through Ambedkar, to incorporate the UCC in the form of a Directive Principle of State Policy (“DPSP”), making it non-justiciable, the same being chided by K.T Shah as ‘a cheque drawn on a bank payable, when able’.
The CA hence, refrained from formulating the UCC, and the reason for this is best attributable to the separationist tendencies which were fanning around, owing to the partition horrors. The fragile state of affairs, made it imperative not to fuel religious sentiments and demolish the bedrock of a novel nation in the making.
Contemporary Background– Political Developments
The UCC was never so deeply engulfed in the political muddle as it is now. Bhartiya Janata Party (“BJP”) took the issue out of its dormant state and pitched it up to rekindle the controversy over it. The BJP-led Uttarakhand government has taken the first step in pushing for the UCC as the preparations for a Code of its own is underway. Now that the 2024 elections are nearing the corner, the voices behind UCC are rising. Even the stance of the Law Commission has changed; where it earlier said that UCC is ‘neither necessary, nor desirable’(21st Law Commission’s Reform of Family Law) , it has now solicited views of the various stakeholders (public and religious organizations) on UCC.
However, the politicization of the UCC has only worsened the situation, than the one before the CA, in 1947. The primary factors contemporarily fueling the situation further are as follows:
1. Misleading Propaganda— The campaign around UCC is developing in an undesirable manner. The champions of UCC, majorly the BJP faction, are wrongly targeting the minorities, hell-bent on projecting their personal laws as faulty, defective and needing reform. This would only further the apprehensions of minorities and depict the UCC as a means for imposition of the Hindu personal laws. Thus, the façade of the majority against minority agenda needs to be countered in order to come up with a successful UCC. For e.g., the faulty maintenance and adoption structure of Hindus; the divorce provisions in Sikhs and Muslims; and the adoption system for Parsis are major issues in the current system. The personal laws of all the religions would have to be overhauled, and tweaked drastically in order to attain uniformity.
2. Perceived Discrepancy of law— The debates are placing the demands of UCC as antithetical and competing with the right to religion of the people. It is being perceived as a clash of between Article 44 and Article 25 of the Indian Constitution. Implementation of UCC is being touted as an infringement of the right to religion, as the personal laws are being bypassed. Moreover, people are weighing the two as a choice between DPSPs and Fundamental Rights, and say that the former cannot suppress the latter. However, such an interpretation is mistaken on two accounts—
3. Article 25(1) begins with ‘Subject to public order, morality and health and to the other provisions of this Part’. Right to equality is one of such other provision, which the personal laws are primarily alleged to violated, especially against women. Article 15(3) specifically directs state to make special provisions for women. Article 25 cannot thus, be used as a sanctuary to give shelter to such personal laws which contravene other fundamental rights.
4. Article 25(2) exempts this article from restricting the operation of ‘any existing law or prevent the State from making any law…other secular activity which may be associated with religious practice.’ Thus, any law on a UCC, is automatically exempted through this clause.
5. Misunderstood Secularism—The attack on UCC also comes through claimants of secularism. They contend that it will violate the “secular” nature of India. Here, again, the notion of secularism is wrongly interpreted. Secularism entails neutrality, and not passivity.[i] It is a positive concept of treating all religions equally and non-preferentially, and not necessarily of non-interference.[ii] Though not defined anywhere, such an interpretation of secularism, has been acknowledged in the CA. Ananthasayanam Ayyangar said “being secular is not losing faith in all religions”. It was readily approved by Kamath and Ambedkar. Tajamul Hussain went to the extent of saying that there were no minorities in a secular state. Going by this notion, the UCC, rather than going against, bolsters the aims of a secular state. Hence, it aims towards achieving a sense of equality among all religions through a positive action and a manifestation of secularism.
Contemporary Background- Judicial Developments
While studying the UCC, the judicial terrain has been relatively easier to traverse. When confronted with the question on personal laws for the first time, the judiciary astonishingly placed them on a different pedestal from and unaffected by the Constitution, in what was later addressed as the ‘Ghost of Narsu Appa Mali’, by Justice D.Y. Chandrachud in Sabarimala Case. An attempt was made to deviate from this unconstitutional stance in the Shah Bano Case, and the requirement of UCC was voiced by the court. But being allured by the vote-bank politics, the government nullified the effect of the judgement.
The Court again, took the activist stance in Sarla Mudgal Case, where it instructed the Executive in unambiguous terms to frame a UCC for the country, but succumbing to the political pressure, conceded that it was merely obiter and non-binding. Formulation of a DPSP, thus, can only be initiated at the behest of the Executive, since it is a policy action, moreover it is non-justiciable, else the courts would have enforced it long ago. The adamant stance of judiciary has found reiteration in a catena of cases such as Pannalal Bansilal Pitti Case, Lily Thomas Case, John Vallmattom Case and Shayara Bano Case.
The judicial environ is readily in support of implementing UCC, however the political environ needs to be decluttered, as discussed above, before UCC can be a fulfilled dream.
ARGUING FOR THE NECESSITY OF AN UCC
An alternative is unquestionably foreclosed
The primary rebuttal of UCC is that the follies of the personal laws can be rectified with adequate amendment and they need not be abolished. On a practical analysis, such an argument falls flat on its face. A consensus is yet to be arrived at for codification of the entirety of Muslim Personal Law, let alone agreeing upon the rectifications required in the law. Moreover, the schools of Islam have sectarian and conflicting interpretations and principles. Each school of thought has a different ijmas (community consensus of scholar), which have decided upon the laws differently. Ijmas have gained more significance since the Quran and Hadith (higher in hierarchy) have failed to deal with contemporary issues adequately. Therefore, ambiguous and divisive nature of ijmas give a bleak prospect of an all-engrossing code on Islamic law. Similarly, Parsis and Sikhs have a law on marriage, though outdated and lacking but they are also governed by a scattered group of laws, in terms of divorce, succession and other matters. Therefore, picking and selecting the amendments required in personal laws, which are so scattered and uncodified is not feasible, and the UCC is holistic solution.
It would also reduce the struggle for judiciary in resolution of disputes through a reference to a common law at place. As far as the question on diversity in concerned, the UCC won’t eradicate the cultural diversity of the country, rather it will target the discriminatory practices. To put simply, it cannot be permitted for the personal laws to sing the choir of diversity on the dais of discrimination.
Death-knell to Discrimination
Personal laws are problematic, not only for being ambiguous or uncodified, but also for being misogynistic. All the customs are majorly biased towards men, based on the ancient notions of society. Societies have transformed and so did the notions, but the customs have remained. Women are the sufferers, across all religions. The clarion call is thus arising from the champions of women’s rights too. To quote B.R. Ambedkar—“I measure the progress of a community by the degree of progress which the women have achieved”. Modern India should pay heed to the call of the Father of the Constitution.
The extra-judicial divorce in Islam is purely a discretion of men.[iii] Judicial divorce is the only recourse of women, that too on specific grounds.[iv] A divorced wife can claim no maintenance except for the iddat period.[v] Under Muslim law, a daughter can inherit only half of what the son gets. The concept of maintenance for a divorced woman under Hindu law is still a lengthy and disputed process, unresolvable without judicial recourse. The question on ‘karta’ still remains moot. The adoption (especially of daughters) is not recognized at all by any other law except Hindu Law. The additions to such a list can be endless, it has reached the tipping point already and the government should act under the sanction of Article 15(3).
Accommodating novelty, while preserving unity
The UCC serves as an opportune moment to give scope for the inclusion of the LGBTQIA+ community within the ambit of civil laws, if at all a consensus is reached later and the issue is driven out of political mire. Also, the UCC can be inclusive of the inter-faith marriages and remove the ambiguity around the status of live-in relationships. While at the same time it bolsters the integration of the nation, by framing a secular code for all irrespective of religion, caste, class, race and sex, UCC also makes the judicial recourse easier, with help of a single law, instead of scattered or uncodified personal laws. It will eradicate the dirty vote-bank politics of religious appeal and enhance political literacy too. The unity can be kept intact while formulating a successful UCC for the nation.
WHY WOULD THE UCC NOT FAIL?
The state indeed has to be meticulous in drafting a UCC. The culture which has been built over thousands of years as the legacy of this nation needs to be preserved but at the same time the redundant biased practices need removal too. If done tacitly, UCC will be indubitably beaccepted. A plethora of secular and uniform acts have been passed overriding personal laws such as Dowry Prohibition Act 1961, Prohibition of Child Marriage Act 2006, Special Marriage Act 1954, Juvenile Justice Act 2000, and Medical Termination of Pregnancy Act 1975 etc. and have been readily accepted by the Indian masses. There is no reason why UCC would be treated separately, if the propaganda stops misleading the masses. Moreover, amendments are part and parcel of any statute, likewise any follies in UCC can be resolved as and when it arises.
Examples may be taken from foreign jurisdictions as well. The UCC in the European countries was spearheaded by the formulation of the Napoleon Code in France in 1804. In operation since then, the code has holistically dealt with marriage, adoption & guardianship, property, usufruct, easement, succession and wills etc. But even prior to Napolean, the Roman Empire established the roots of a civil code dating back to Justinian rule, and ultimately spread it across the Europe. It was only through the European nexus that a UCC also manifested in India, albeit on a small scale, in the Portuguese colonized Goa & Daman. Enacted in 1867 and extended to Goa in 1869, it still stands valid as the only UCC in an Indian state. But the Goan UCC needs an overhaul too, on account of persisting inequalities in the code, despite standing firm for more than a century. The Islamic countries, following Sharia, have also turned to a UCC, such as Saudi Arabia, Turkey, Pakistan, Egypt, Malaysia, Nigeria, Bangladesh etc.
CONCLUSION
The UCC has remained a ‘dead letter’ since independence, as rightly observed in Shah Bano. UCC and secularism are not antithetical and neither does UCC kill diversity. Despite being politically charged, the UCC needs to be implemented at this point before the discourse exacerbates the political situation further. The cultural diversity of India built over years of civilization has seen commendable resilience throughout invasions, indeed, ‘kuch baat hai ki hasti mitati nahi hamari’ (there’s something about our Indian identity that it never fades away). The UCC has the onus on ensuring the balance of preserving this Indian identity, while ensuring that the cultural diversity doesn’t fade away.
Endnotes:
[i] Jain, M.P. 2008. Indian Constitutional Law, Butterworth, Nagpur, p.1201
[ii] Pylee, M.V. 2007. India’s Constitution, S. Chand Publication, Delhi, p.14
[iii]Abed Awad; Hany Mawla (2013). “Divorce. Legal Foundations”. The Oxford Encyclopaedia of Islam and Women. Oxford: Oxford University Press
[iv] Maaike Voorhoeve (2013). “Divorce. Historical Practice”. The Oxford Encyclopedia of Islam and Women. Oxford: Oxford University Press
[v] Id.
The Author is a second-year law student at National Law University Jodhpur.
This article was the Runners Up in the 1st CLS-NLUO Essay Writing Competition 2023-24.
Image Credits: IANS
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