Aditya Kathare
A brief introduction:
India is renowned for its vast diversity in religion and culture, where people of different social backgrounds co-exist. This establishment of a diverse culture in India is a result of religion playing an essential role in society as well as the Indian polity. This diversity of religion gave birth to diverse lifestyles, customs, beliefs, and practices, culminating in a socially diverse civilization. To manage this diversity and prevent cross-cultural conflicts from undermining national unity and becoming an obstacle to the integrity of the nation, India has developed a system of many personal laws governing the interests of their respective communities. Examples include the Hindu Marriage Act, Sharia law, Indian Divorce Act, etc.
However, these religious personal laws have unfortunately failed to maintain social harmony in our society. This need for the upliftment of gender equality has called for enforcement of Article 44 of the Indian Constitution. ,
The implementation of the UCC would eradicate gender inequality and protect the rights of the oppressed by replacing religious personal laws with a common set of rules for all sections of society. This code shall strengthen the basic principles of equality upon which our Constitution thrives.
Constitutional Secularism and Uniform Civil Code:
The Constitution of India provides its citizens with fundamental rights under Part 3 of the Indian Constitution [1] and the proper means to enforce them. While Part 4 of the Directive Principles of State Policy [2] lays down the obligations of the state to implement laws,. One of the Directive Principles of State Policy, under Article 44. “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”.
Now, the root cause of the present controversy regarding the applicability of the UCC is the principle of secularism and the enforceable fundamental rights enshrined under Articles 25 and 26. The debate centers on whether religious personal laws fall under the ambit of practicing and propagating religion, a fundamental right, and, whether implementing a single codified law for all religions would compromise secular principles. It is crucial to note that the UCC is not against secularism, nor does it violate any of Articles 25 & 26.
It is a fact that Article 44 clarifies that there is no link between religion and governing personal laws in a secular country like India. Therefore, religious beliefs cannot and should not interfere with the principles of personal laws, except when necessary.
Regardless, the debate about introducing the UCC, with its dissension pertaining to secularism, leads to perhaps one of the most heated issues of the 21st century.
The legislature’s authority to regulate and implement purely secular activities is undisputed. However, the statute of a legislature cannot control personal beliefs of a secular nature, except where reasonable regulation is required.
Over time, India’s governments have refrained from taking any decisive steps, fearing they might offend the sentiments of the communities. This reluctance has gradually transformed into a political policy, unfortunately making it even an electoral issue.
UCC & the Stand of the Judiciary:
The Judiciary has time and again, through its various judgements, shown the urgency to implement UCC. In a first attempt, in 1985, in the case Mohammad Ahmed Khan v. Shah Bano Begum[3] , Supreme Court directed the Parliament to enact a UCC. In another instance, in the matter of Jorden Diengdeh v/s S.S.Chopra[4], Supreme Court opined that legislative intervention was necessary in the matters of marriage and divorce.
Exploiting the absence of a UCC is seen in the case of Sarla Mudgai v. Union of India [5], in which four men converted to Islam to practice polygamy, which is banned in the Hindu Marriage Act but permissible under Muslim Personal Laws.
Justice Kuldeep Singh ruled that Article 44 has to be retrieved from the cold storage in which it is kept since 1949. In recent years, the higher courts have addressed gender discriminatory practices that are in disguise of religious personal laws and practices. Heinously patriarchal and discriminatory practices like polygamy, Triple Talaq, denial of maintenance to Muslim divorced wives, and many more such practices run counter to personal and public morals.
Notably, the Supreme Court banning Triple Talaq in the Shayara Bano case [6] shows the inevitability of implementing the UCC. Justice A.M. Bhattacharya, former Chief Justice of the Bombay High Court, states that “by their very nature, personal laws are not compatible with the secular character of our laws.”. True to his words, in fact, the politicisation of UCC and majority-minority lines has led to the present deadlock. Hence, the object here must not be the elimination of differences but the integration of these differences into the unity of society.
Gender inequality and other problems:
The Indian constitution guarantees us the right to equality before the law [7] and prohibits discrimination based on religion, race, caste, sex, and place of birth [8]. The fundamental principle of the UCC is grounded in Articles 14 and 15. However, given patriarchal bias, women cannot fully realise their constitutional right to equality in religious and personal matters until the Uniform Civil Code is implied.
For example, Muslim personal law practices such as polygamy and unilateral divorce of Triple Talaq by men, discrimination on matters like succession, and no right to share in the property of a woman until a male family member survives. Denying maintenance to women after divorce is a highly inhumane and non-tolerable element.
As Justice Tulzapurkar opined, “Peculiar features of Muslim personal laws are unjust, derogatory, humiliating, and discriminatory against women on grounds of sex, which directly infringes their fundamental right to equality and equal protection against discrimination under Articles 14 and 15.”.
Similarly, other communities, the Christians, Parsi, and Jews, also have discriminatory provisions, like conversion is a ground for divorce under Christianity under the Converts Marriage Dissolution Act of 1866; the Parsi Marriage and Dissolution Act of 1936 provides that for a non-convert spouse, the conversion of the other spouse is itself a ground for divorce; a Christian husband can divorce his wife on the grounds of adultery, but the wife has to prove more grounds in addition to the husband’s adultery.
Negating arguments against UCC:
Some argue that implementing UCC infringes on minority communities’ right to practice and propagate their religion.
However, their right to practice, profess, and propagate their religion is completely untouched. How can the practice of triple Talaq, polygamy, and serious gender discrimination possibly be derived under the ambit of the definition of their fundamental right, justified when they are inherently unjustified and biased against women?
The courts have consistently shown that the concepts of marriage, succession, and personal and common matters are of a completely secular nature and cannot be brought under Articles 25, 26 and 29 of the Constitution.
Another rational argument is that Article 44’s ambiguous framing makes its implementation void and unfruitful. The answer to that is that this ambiguity was a thoughtful decision by our constitutional framers, considering the communal violence between Hindus and Muslims immediately after independence.
One might argue here that the call for implementing the UCC need not be solely imposed by the government but can come from the communities themselves. The irony is that the call for its implementation has not come yet, even after 74 years of enactment of Article 44. Were the Hindus ready when the Hindu Shastric laws were drastically changed in 1955–56? If the recourse of ‘The Will of the People’ is taken, then the laws dealing with child labour, sati, widow remarriage, infanticide, child marriage, etc. would never have been ratified at all.
The most debated question here is whether there are other common laws already in force except in cases of religious and personal matters like the IPC, CRPC, Contracts Act, The Indian Evidence Act, Transfer of Property Act, etc. The argument is that if national solidarity is not yet achieved even after applying common laws as mentioned above, then, just by simply adding the religious and personal laws that are common to all, would that do the trick? Can it lead India towards a homogenous nation? The answer to that is again: India was never a homogenous nation and never would be one. UCC doesn’t seek to eliminate the differences among the existing religious and personal matters, but it seeks to implement the reception of the differences through a harmonious, mutually co-existing heterogeneity. Heterogeneity is something that we have inherited, and that too has immense scope for harmony.
The Urgency of UCC:
Any further division based on religion and gender exploitation threatens to impede the existing democratic framework in India. The constitutional framers were aware of the repercussions of enacting the UCC immediately after independence. due to extreme communal violence after the events of partition. This stance did not mean non-interference for eternity. The UCC is inevitable; it must be implemented at some point in time.
Furthermore, Article 13 states that pre-constitutional laws cannot be considered valid if they violate basic dignity, social equality, fundamental rights, and the core principles on which our constitution and parliamentary laws are established.
It shall always be a recourse to institute checks and balances within the constitutional framework, as prescribed by due process of law, in response to any illegality or irregularity of any kind that infringes upon fundamental rights through the implementation of the UCC. Mere hesitation regarding potential irregularities cannot serve as the sole basis for rejecting the enactment of unified personal law legislation.
The Journey Covered and Way Forward:
While constitutional and statutory reforms and judicial pronouncements have not sufficiently established a completely egalitarian society, there is hope for achieving it, primarily by demarcating the boundary between religious and secular activities.
There is a severe lack of awareness and social collective consensus among the masses, especially the minority, in regard to the true extent of the UCC. The belief in them is that if UCC gets enacted, they will be oppressed through the laws of the majority and will lose their identity.
Increasing awareness and educating the masses, particularly minority communities, about the scope and purpose of the UCC are crucial first steps.
Careful and meticulous drafting and codification of the UCC is to be done so as to ensure peace and harmony among all religions and communities. Continuous checks and balances should be in place to regulate and govern through the UCC, with appropriate impartial mechanisms instituted at all stages. The time has come to transform legal equality into real equality. The state of Goa has aptly shown the way, and there is practically no reason for any further delay.
[1] Articles 25 and 26 of the Indian Constitution
[2] Part 4, DPSP, Article 44 of the Indian Constitution
[3] Mohammad Ahmad Khan v. Shah Bano Begum, AIR 1985, SC 945
[4] Jorden Diegdeh v/s S.S.Chopra
[5] Sarla Mudgal v/s U.O.I.
[6] Shayara Bano v. U.O.I. & others, Writ Petition
[7] Article 14 of the Indian Constitution
[8] Article 15 of the Indian Constitution