Introduction
Article 44 presents the idea of a Uniform Civil Code applicable within India. However, a lack of effort to produce an all-encompassing code is witnessed on part of the State. The vast diversity of the country’s demographic renders this topic precarious and extremely sensitive.
The main reason such a mammoth exercise has not yet been undertaken is perhaps due to the absence of conducive strategies which can be utilized to accomplish this statutory instrument. With this paper, the authors recommend three strategies for the implementation of the Uniform Civil Code, a necessary mechanism and one standardised in most developed countries around the world.
Supreme Court’s stand on Uniform Civil Code
The Supreme Court has repeatedly highlighted the importance of a Uniform Civil Code. Beginning from 1985, the then Chief Justice Y.V. Chandrachud in the Shah Bano Begum[1] case spoke of how a common civil code will promote national integration by “removing disparate loyalties to laws which have conflicting ideologies”. In the 1995 case of Sarla Mudgal vs Union of India[2], Justice Kuldip Singh held that securing a uniform civil code throughout India is an “unequivocal mandate” under Article 44 of the Constitution.
Advancing to 2017, Justice Kehar and the present Chief Justice of India, Justice Chandrachud rejected a PIL filed by a Catholic advocate who wanted divorce granted by Church Courts to be deemed legally valid. The Court held that despite Christian marriages being solemnised as per the ‘canon law’ or Christian Personal Law, when it came to divorce-related matters, only that which is granted by courts under the Indian Constitution and the Indian Divorce Act of 1869, is legally valid. Such personal laws have no place in the country if they interfere with the basic tenets of the Indian Constitution. Therefore, the application of an array of different personal laws for communities has been condemned by the Supreme Court.
The need for a Uniform Civil Code is realised repeatedly as the Courts spend judicial time adjudicating, essentially what is the same issue with a different face. Whether it be the right of women in joint family property or the triple talaq – all could have been dealt with fastidiously with one uniform statutory mechanism.
The Controversy Surrounding the Uniform Civil Code
The idea of the application of one common statutory mechanism for personal law throughout the country has various controversies attached to it. This is because governance under the ambit of personal laws is closely linked with the fundamental right to freedom of religion. The Constituent Assembly debates exemplify this tension. One group pressed for the ‘fundamental right to personal law’. An opposing group led by Dr B.R. Ambedkar was staunchly against it. They wanted UCC to be enshrined as a fundamental right. A consensus could not be established and for this reason, the Constituent Committee set the duty of formulating a UCC on the State. A similar incoherence exists today – more than 70 years later.
India, within it, contains much diversity, and people. Transforming laws, bearing in mind the diverse religious communities is a delicate topic to brush upon. The criticisms of the UCC are that it is detrimental to the pluralist ethos of the nation. That it is not possible to reconcile divergent laws and formulate a uniform statutory code that will be accepted by all communities. Precedence exists of various minorities having the right to govern their personal matters, as an extension of freedom to practise their religion guaranteed by Article 25 of the Indian Constitution.
An extension of the above argument is the failure of the UCC to consider the plight of Scheduled Tribes. Scheduled Tribes roughly comprise 8.6% of the total Indian Population. Tribes based in areas such as the Northeast, Jharkhand, Lakshadweep, etc follow their own customary laws.[3] These customary laws are unique so with the advent of a prospective UCC – the sentiments of communities will be further marginalised.
However, it can be asserted confidently that personal laws are not based on gender equality. Personal laws perpetuate gender discrimination and sex inequality. Yet, every time this perspective is highlighted – extreme disdain is reciprocated along with the accusation of religious discrimination or even discrimination against minorities. Practices like female genital mutilation, polygamy, and exclusion from inheritance– all squarely showcase the deep-rooted gender bias prevalent in all personal laws. Giving protection as envisaged in Narasu[4] to these laws, unequivocally limits constitutional guarantees.
Three Strategies towards a Uniform Civil Code
- Codification
Codification is the process of compiling, arranging, and systematising the laws of a given jurisdiction, or of a discrete branch of the law, into an ordered code[5]. It regulates without contradiction, exclusively and completely the whole of the law or at least a comprehensive part of it. It is meant to be lasting, comprehensive, and concluding, thereby leaving no scope in adjudication for shaping the law[6].
A dynamic strategy to implement the UCC – is simply to codify a strictly uniform statutory mechanism like any other codified law – like the Indian Penal Code. The intent behind this is to demarcate the boundaries upon which the UCC can govern and lay jurisprudence on.
A comparative study of the personal laws of different religions will show that the sheer diversity of these laws, zealously adhered to, will not allow any uniformity. It is the author’s argument that this perspective must be changed – it should not be the case that the law caters to all the sentiments of the community but rather that the practices of the community are valid by virtue of the basic code given. The Uniform Civil Code must act as a sieve allowing only those practices and customs to pass which are constitutionally viable. They must pass the scrutiny of Constitutional tenets.
We cannot expect a secular judiciary to adjudicate upon matters through the eyes of religion, given the task of codifying the vast personal laws, and their regional variances. Every citizen of India must be seen as a citizen first, who has certain rights that arise from the Constitution, and not from personal laws.
Often, when advocating for a Uniform Civil Code, the State of Goa is often referenced. After liberation from the Portuguese in 1961, Goa continued with the Portuguese Civil Code, 1867. It survives in accordance with Section 5 of the Goa, Daman and Diu (Administration) Act, 1962.
However, this parallel might not be as appropriate as within the Portuguese Code itself there exist exceptions for Catholics, and Hindus and Muslims are both covered by the Code and Shastric Hindu Laws. Even though, the case of Goa cannot be applied identically, the authors suggest it can be used as a guiding light to initiate the task of formulating a Uniform Civil Code.
2. De-codification
In 1781, regulations prescribed that both the Hindu and Muslim communities will be governed by their ‘personal’ law in matters relating to inheritance, marriage, religious usage and institutions. The colonial government was not equipped to consider the orally transmitted customary law of villages, castes, and religions. Instead, it relied on classic textual law and its commentaries interpreted by local priests. These priests were not aware of each region’s local practices as every community had its customary laws which were followed by all members regardless of creed.
When personal law Acts were formulated, such as The Hindu Marriage Act and the Divorce Act or the Sharia Act, what occurred was the codification of religious laws. Customary laws were neglected. Even within Hinduism, there are different kinds of customary personal laws specific to groups like Mitakshara, Dayabhaga, Marumakkathayam etc. Therefore, what we witness is the imposition of religious laws of one view over the entirety of members of the religion, in complete disregard of their own customs. These imposed laws are completely alien to people and infringe on their right to practise their long-held customs. Therefore, personal laws are not in consonance with the sentiments and age-old practices of communities as this discrepancy still exists.
After the adoption of the Constitution, secular judges continued to resolve questions relating to the family by relying on religious doctrines. The 1951 landmark judgment of the Bombay High Court, The State of Bombay vs Narasu Appa Mali[7] lays down the extent to which personal laws can be subjected to fundamental rights. The ratio decidendi of this judgment was that personal laws are not subject to fundamental rights as personal laws are not ‘laws in force’ under the meaning of Article 13(1) of the Indian Constitution. Hence, personal laws cannot be struck down as being violative of fundamental rights.
A subtle critique of the rationale in Narasu can be seen in the judgment of Sabrimala Temple case[8] wherein Justice Chandrachud under the heading of ‘The Ghost of Narasu’ addressed this issue and its limitation. This limitation is the condition to “public order, morality and health”. It is our view that Narasu Appa Mali needs to be re-looked at and the protection afforded by Narasu to personal law from fundamental rights should be discarded.
Even in the Constitutional text, Article 25(2) empowers the State to make laws to regulate or restrict any “economic, financial or secular activity” associated with religion. Considering this, the authors suggest removing the protection extended by Narasu to personal laws and a gradual de-codification of them.
3. Common Charter of Rights/Obligations
The Supreme Court has taken a cautious approach to decide cases of religious contention. There is a ‘case-by-case’ approach instead of a universal stance. On 22nd August 2017, the Supreme Court passed landmark judgment[9] holding Talaq-e-Biddat, or triple talaq, as unconstitutional. Triple talaq has been contentious since the Shah Bano case, involving a woman who was divorced using this practice. In this case, the Supreme Court held that the Criminal Procedure Code was a non-religious law and hence applied to all religions. By virtue of this ratio decidendi, the divorced 62-year-old woman was granted maintenance. This case displays the power the Supreme Court has to nullify the laws which are in violation of fundamental rights guarantees under Part III of the Indian Constitution.
It is the authors’ argument that instead of a case-to-case approach, the legislature can simply formulate a ‘Charter of Rights and Obligations’ in Personal Law, not far from the Fundamental Rights, which are set in stone and cannot be changed, as a prequel to then formulating and applying the UCC.
In place of a perfect all-encompassing UCC, a start can be made with the less contentious issue of a charter empowering women and obliterating discrimination against them. A slow gradual change in policies will not cause upheaval and will be easier for the various communities to accept.
Conclusion
The constitutional imperative of equality applies to all citizens, irrespective of their status or gender. Therefore, the Uniform Civil Code is a key tool in the national integration of the country with which equality can truly be attained in form of gender justice, and security when it comes to marital issues, inheritance and so forth. The authors suggest any of the three aforementioned strategies may be used to attain the goal of a uniform statutory mechanism governing personal laws, however, they acknowledge that Strategies I and II may seem controversial presently. Therefore, they recommend Strategy III i.e. promulgating a ‘Charter of Rights/Obligations’. It is a pragmatic method which avoids the controversy of assailing customs and instead protects them. Therefore, it can be used efficaciously to bridge the gap between constitutional mandates of equality and equity in the current societal-religious and traditional structure of India.
Author Brief Bio: 𝗠𝗿. 𝗩𝗶𝗸𝗿𝗮𝗺𝗷𝗶𝘁 𝗕𝗮𝗻𝗲𝗿𝗷𝗲𝗲 is a 𝗦𝗲𝗻𝗶𝗼𝗿 𝗔𝗱𝘃𝗼𝗰𝗮𝘁𝗲, 𝗦𝘂𝗽𝗿𝗲𝗺𝗲 𝗖𝗼𝘂𝗿𝘁 𝗼𝗳 𝗜𝗻𝗱𝗶𝗮 and Additional Solicitor General of India and Janhvi Prakash is an Advocate.
References:
[1] [(1985) 2 SCC 556 : 1985 SCC (Cri) 245 : AIR 1985 SC 945]
[2] [1995] 3 SCC 635
[3] As clamour for UCC rises, here’s what you need to know about uniform civil code, India Today (2022), https://www.indiatoday.in/india/story/uniform-civil-code-in-india-ucc-bjp-muslim-hindu-personal-law-marriage-act-1942830-2022-04-28 (last visited Dec 2, 2022).
[4] The State of Bombay vs Narasu Appa Mali- AIR 1952 Bom 84
[5] BLACK’S LAW DICTIONARY 252 (7th ed. 1999)
[6] FRIEDRICH KOBLER UBER DIE PRAKTISCHEN AUFGABEN ZEITGEMABER PRIVATRECHTSTHEORIE31 (1975). 47. KARST
[7] AIR 1952 Bom 84
[8] Indian Young Lawyers Assn v. State of Kerala, (2019) 11 SCC 1
[9] Shayara Bano v. Union of India, (2017) 9 SCC 1
