UNIFORM CIVIL CODE FOR INDIA: PROSPECTS AND CONSTRAINTS
– Arifa Sultana Choudhury,
B.A LL.B, 5th Year, National Law University and Judicial Academy,Assam
– Aditya Mishra,
B.A LL.B, 4th Year,National Law University and Judicial Academy, Assam
The Constitution of India came into force in 1950. Since then, Article 44 has been gathering dust withno government at the centre ever having anynerve and wisdom to touch it. Figuratively speaking, it has remained a dead letter. This tragic situation certainly buries the spirit of the constitution a thousand fathoms deep. Under Article 44, the state shall endeavour to enact a Uniform Civil Code (hereinafter referred to as the UCC) for citizens throughout the country.
The civil code, if enacted will deal with the personal laws of all religious communities relating to marriage, divorce, adoption, custody of children inheritance, succession to property etc. which are all secular in character of Indian state and to enhance fraternity of unity among citizens by providing them with a set of personal laws which incorporates the basic values of humanism. Much misapprehension prevails about bigamy in Islam. Ironically, Islamic countries like Syria, Tunisia, Morocco, Pakistan, Iran etc have codified the personal law where in the practice of polygamy has been either totally prohibited or severely curtailed to check the misuse and abuse of this obnoxious practice. The tragedy is that a secular country like India is lagging behind according to red carpet welcome to article 44.
Today, with a deepening of democratic processes, each caste and community is becoming more conscious of its identity and today our polity is mainly based on these identities. Politicians have been fighting elections mainly byusing the sword of caste and communities and have thus aggravated the feeling of identities. In Rajasthan, when RoopKanwar committed Sati, the Rajputs defended it as a matter of their identity. The Rajput youth stood with swords to defend the memorial created there.
Democracy in a country like India, with its pluralist tradition lasting over thousands of years cannot succeed without respecting pluralist ethos. India has a diversified culture and tradition, and each differentiated from the other. Respecting anyone’s culture doesn’t give the right to use it as a weapon to fulfil a person’s evil desire. There have been numerous examples where it has been shown that Hindu men have changed their religion to Islam just for the purpose of getting married because of the reality that Islam allows polygamy which is prohibited by Hinduism. Is it justified? The question isn’t only about what is right or what is wrong; the debate is about the prevalence of different personal law which is allowing many people to misuse the provisions for their own advantage.
HISTORYAND THE UNIFORM CIVIL CODE
The issue of introduction of the Uniform Civil Code in India has been debated upon since the time India attained independence with the Indian Parliament debating on it in as early as 1948.
It witnessed some strong opposition from the Muslim fundamentalists like Poker Saheb and members from other religions. Though it did get support from the Chairman of the Draft Committee and father of our Constitution Dr. B.R. Ambedkar along with some prominent journalists like G.S. Iyengar, K.M. Munshiji and AlladiKrishnaswamyIyer amongst others to name a few. Though the Congress had promised it would allow Muslims to practice Islamic laws, there was a fear, among Muslims, of a possible interference with the Muslim personal laws and they contended that India would not be the same again if UCC was to be introduced. As a compromise, the architects of the Constitution included the Uniform Civil Code under the head of Directive Principles of State Policy inArticle 44.1
Some distinguished members did show their dissenting opinion by pronouncing that the path towards nationhood would be hampered by the very existence of religion-based personal laws. Earlier it was favoured to guarantee the Uniform Civil Code to the Indians within five to ten years. Sixty-three years have passed and we’re still pondering over such a possibility.
THE NEED FOR A UNIFORM CIVIL CODE
The need for a Uniform civil code (hereinafter referred to as ‘UCC’) was felt as soon as the constitution came into force. Even after 54 years, this directive could not be implemented for reasons better known to allthose concerned with this directive. The UCC also aims to overcome the particularistic and often intransigent aspects ofpersonallaws ofvarious religious communities.
The objective thus is also to bring a social reform and uplifting the status of women. The UCC is eminently desirable in the interest of modernization of society and for a common system of Justice for all.
The absence of UCC gives rise to piquant, unwarranted and ugly situations. In the words of court: Marriage is the very foundation of civilized society and as is discussed in the introduction how monogamy is the rule for Hindus and the Muslim law permits as many as four wives in India, which errand Hindu husband embraces Islamto circumvent the provisions of the Hindu law and escape from penal consequences.
Part III ofthe constitution that is,Article 12 to Article 35 provides for fundamental rights, which are enforceable by the High Courts of the various states and the Supreme Court of India. Part IV of the constitution provides for socio-economic rights styled as Directive Principles of state policy and are not enforceable by any court of law. However, Article 37 clarifies that such directive principles “are nevertheless fundamental in the governance of the country and it shall be the duty of the state to Uniform Civil Code (Article 44 of the Constitution) apply these principles in making laws.”2
Under Part IV of the Constitution, Article 44, states that “the state shall endeavour to enact a Uniform Civil Code for citizens throughout the country”. On the other hand, under Part III of the Constitution, Article 25 provides” Freedom of conscience and free profession, practice and propagation of religion.” The tussle is mainly between these two articles. In one hand, the state is trying to enact a uniform civil code for all the communities in India but when the state gives its citizen the fundamental right of religion, it itself is letting the UCC to take a backseat.
The Supreme Court since two decades has started a trend (which is now considered to be a well settled law) that the Directive Principles and Fundamental Rights ought to be harmoniously constituted, and whenever possible fundamental Rights should be adjusted in their ambit so as to give effect to the trend can manifestly be evinced in ABK Singh v.Union of India3, followed by Woman Rao v. Union of India4 and GrihaKalyan Kendra Worker’s Union v. Union of India5. It is the state, which is charged with the duty of securing a UCC for the citizens of the country and unquestionably, it has the legislative competence to do so.
SECULARISM AND UCC : COMPLEMENTARY OR CONTRADICTORY?
In India, personal laws are the main cause of communal conflict among people. One of the basic problems with the absence of a Uniform Civil Code applicable throughout India is that it goes against the concept of equality which is one of the basic tenets of our Constitution. Since we have different personal laws for different religions we are, in a sense undermining the credibility of the secular ethos of India.
The backbone of controversy revolving around UCC has been secularism and the freedom of religion which is enumerated in the Constitution of India. The preamble of the Constitution states that India is a “secular democratic republic” which means that there is no State religion. Asecular State shall never discriminate against anyone on the ground of religion. AState shall only be concerned with the relation between man and man. It is not concerned with the relation of man with God.6 By this, it doesn’t mean that it shall prevent from practicing any religion, what it implies is that religion should not interfere with the mundane life of an individual.
In S.R. Bommai v. Union of India7, as per Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law.
Articles 25 and 26 guarantee right to freedom of religion. UCC is not opposed to secularism or is not violative ofArticles 25 and 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No religion permits deliberate distortion. The UCC will never be established on the interference of one’s religious beliefs relating, mainly to maintenance, succession and inheritance. This means that under the UCC a Hindu will not be compelled to perform a nikah or a Muslim be forced to carry out saptapadi. It just wants to achieve common law in the area of inheritance, right to property, maintenance and succession so that Justice in its true manifestation is reached to all. UCC will also make the separation of the State from the religion more complete and meaningful.8
The whole debate can be summed up by the judgement given by Justice R.M. Sahai. He said, “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity.”9
UNIFORM CIVIL CODE :
A TOOL FOR PROMULGATINGGENDER JUSTICE
It is a known fact that in the personal laws of all the communities’ gender injustice is inbuilt. This is supposed to be the result of the socio-economic conditions under which they evolved.10 That is the reason why a need was felt to reform the personal laws or bring about a uniform civil code to ensure that not onlydoes equality between men and women exist in its true sense instead of words but also to bring about gender justice.
Women undergo many difficulties and experience severe trauma in matters concerning their marriage, divorce and inheritance. Polygamy, desertion, triple divorces are just a few examples to show the possibilities of harassing women due to the prevalence of different personal laws which are exercise wrongfully by people. Though Indian women are formally granted equality in political rights through the Indian Constitution but due to the prevalence of different personal laws, women experience inequality, deprivation and violence. Within the family, their position is pitiable. The question of women’s rights as human beings is completelyignored. The personal laws are designed to keep themforever under the control of men. Even though the Constitution of India gives equality to women in certain areas – legal and social, they are not effective to ensure real equality11. The Supreme Court in a few judgments has opined that legislation for a common civil code as envisaged byArticle 44 of India’s Constitution should be enacted. It said so in Shah Bano’s Case in 1985, in SarlaMudgal Case in 1995 and in Vallamattam case in 2003.
Muslim women suffer ignominies as a result of the horrendous practice of triple talaqh. Though the All India Muslim Personal Law Board accepts it as a social evil, but the board president said that triple talaq is irrevocable as it comes from the divine inspiration which is the Shariat. A need is felt for the enactment of the UCC so that it can do away with such discrimination, to break the customary practices that are harmful as well as derogatory to women. In Shah Bano case12, the Supreme Court held that Section 125 of the Code of Criminal Procedure (CrPC), being a secular provision was applicable to all and therefore in accordance with it the husband was bound to maintain his wife so long as she does not remarry. The Court lamented that the legislature had turned a blind eye towards Article 4413 .
Under tremendous political pressure the then Prime Minister Rajiv Gandhi, tried to get around the Supreme Court judgment in the Shah Bano case by enacting Muslim Women Protection of Rights) Act, 1986, whose constitutionality came under challenge in Daniel Latifi case.14
The Supreme Court applied the doctrine of harmonious construction and construed the enactment very much in line with its Shah Bano judgment.15 The position, therefore, is that a Muslim woman is entitled to fair and reasonable maintenance under Section 125 of the CrPC so long as she remains unmarried after the divorce.
Despite the desirability of a uniform code, the Supreme Court cautioned in PannalalBansilalPatil v. State of Andhra Pradesh16, that the enactment of uniform law for all persons “in one go may be counterproductive to the unity of the nation.17
The Shah Bano case taught the country that personal laws can become political battlegrounds because religions influence personal law. In cases that challenge personal laws, it becomes nearly impossible to delineate the historical, personal and political elements from each other as they are all seamlessly woven into one entity. The Supreme Court was petitioned on many occasions regarding Uniform Civil Code, but it has refused to interfere in the domain of the legislature through judicial verdicts. However, it has, time and again, reminded Parliament and the government of the existence of Article 44 and the constitutional obligations of the State towards the provision, the last being in the Sarla Mudgal case.
Hindu men time and again in many cases in order to hoard themselves from the penal consequences of bigamy, convert their religion to Islam as it sanctions polygamy. The outcome of conversion has ill effect on the earlier wife who is still a Hindu because neither she prosecute her husband for bigamy, nor she can invalidate the second marriage, nor there is any relief being provided to her except that she can use it as a ground for proclaiming divorce from her husband under S. 13 of Hindu Marriage Act,1955 due to conversion.
A uniform civil code will not take away the right to perform religious ceremonies and rituals; but would any woman object to a code that gives her equal property rights, protection from polygamy and arbitrary divorce, and the right to adopt and the right to inheritance even if her father or husband converts to another religion?
One of the advantages of a uniform civil code will be a proper notice period and registration of the marriage. The ceremonies will become optional. But parties can have ceremonies of their choice as a ritual, i.e., Hindu-Saptapadi; Muslim- Nikah; Christian-Church blessing, etc. But the proof of the marriage will be the registration and compliance with what is required of notice, etc., as set out in the uniform civil code. Monogamy will be mandatory and the laws of divorce will be the same for men and women and this will lead to cohesion and non-fragmentation of society. Men and women must be entitled to equal property rights which can be enforced by law. This will be real empowerment for the woman. If this is not done it is women and children who are the losers. For men have managed to manipulate what laws are made by virtue of their position in society and/or religion to ensure their supremacy. And even right-thinking men do not often voice their dissent as they are indirect beneficiaries of this manipulation.18
The Indian constitution envisages a secular state by guaranteeing religious freedom to all under the umbrella of a religion free state. This is apparent from an examination of articles 25 to 30. The religious freedom is however subject to certain limitations.
The founding fathers placed article 44 in the directive principles of state policy which shall be taken into consideration in the governance of the country but it was not made obligatory to the government to follow it or else coercive measure shall be taken. Everyrationalbeing committed to secular principles accepts this view, as it is the duty of the state to achieve national harmony through the implementation of the directive enshrined under Part IV of the constitution.
Despite the progressive judicial pronouncements and juristic opinions in favour of carrying out the directive under article 44 of the constitution, parliament has not done anything concrete to achieve success in this noble ideal.
However, everything depends upon the government’s urge to implement it. If the government makes it compulsory that everybody will have to wear helmet while driving, then will it ask Sikhs to take off their turbans? Or if the government legalizes the abortion to control population growth, will the Christians accept it? Or if the government legalizes killing of cows, will it not hurt Hindus? So, it has to be dealt with carefully. Religion is a sentimental and sacred issue in India. Government should listen to everybody before doing anything. It is high time that the Government takes some tangible measures in order to implement the Uniform Civil Code rather than dilly-dallying around the issue for the sake of short-term politicalgains. But nothing can be done overnight. A slow, steady and a persuasive approach are necessary because justice delayed is justice denied but if justice is hurried, justice may be buried. No matter, how arduous and long stand the task be; the legislature should leave no stone unturned in achieving this constitutionalideal. But bringing uniformlegislation should not jeopardize the harmony of distribution of legislative powers envisaged in VII schedule of the constitution.