Uniform Civil Code: A Delicate Idea
Aadisha Dhaliwal*
Introduction
Article 44 of the Indian Constitution introduces the
concept of The Uniform Civil Code. It asks the State to strive for
implementation of consistent laws pertaining to personal matters like marriage,
inheritance, divorce, adoption etc. This call for uniformity comes in a nation marked
by uncountable religious beliefs, where a move of even a district to another
could greet one with a cultural shock and where a fundamental characteristic is
the cornucopia of diversity.
This essay aims at understanding the constitutional
debate regarding the application of Article 44 by studying its history,
outlining its stakeholders, discussing its pros and cons and finally makes way
to the concluding remarks.
The questions entertained in this essay are as
follows:
1. What
was the need to insert the provision of a Uniform Civil Code in the
Constitution, particularly in Part 4?
2. How
does this debate become a sub-topic to the concept of inconsistencies between
DPSPs and fundamental rights?
3. Lastly,
an important question that is also an extension of the first one is whether
this need felt by the Constituent Assembly to introduce UCC, is still relevant?
The Importance of Directive Principles of State
Policy
To begin the deconstruction of the massive UCC
debate we shall move to its place in The Indian Constitution which is, as
mentioned before, Article 44- a part of the DPSPs.
DPSPs are essentially positive rights that put an
obligation on the State to do something for the citizens.
However, it must be noted that
DPSPs are not justiciable.
Part IV of the Constitution, which consists of the
DPSPs, commences with Article 37. It states that:
“The provisions contained in this Part shall not be
enforceable by any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws.”
A rudimentary question regarding the importance of ‘unenforceable”
laws comes to the mind after reading this Article 37.
Critics of the non-justiciable Directive Principles
viewed them as either redundant or requiring greater enforceability mechanisms;
many others in the Constituent Assembly recognised the importance of Part IV as
it was proposed by the Drafting Committee. Although lacking binding force, it
was argued, the Directive Principles still represented the ‘essence of this
constitution’. Members of the assembly emphasised the educational role of the
Directives, which, they believed, gave India a guiding vision: ‘They give us
target, they place before us our aim and we shall do all that we can to have
this aim satisfied.’[1]
Through case laws, the method of interpreting DPSPs
has changed. Initially, DPSPs were considered a moribund part of the
Constitution and now they are viewed as complementary to the fundamental
rights. Landmark cases in this context, such as the Re Kerala Education Bill
case[2] introduced
the Doctrine of Harmonious Construction. According to this doctrine, fundamental
rights and DPSPs must be interpreted in a way that neither of them are either
injured or used in an extremist method which puts them on opposing sides. This
opens the hallowed ground for welfare legislation, application of the principle
of equity, natural justice, etc.
However, it is pertinent to mention the example of
the Right to Education to highlight the pliable line of distinction between the
fundamental rights and the DPSPs. The right to education moved from the
Directive Principles to the Fundamental Rights, becoming Article 21A via a
Constitutional amendment at the suggestion of the Courts. This suggests the
inherent fluidity of the distinction, and lends support to the proposition
that, ultimately, the distinction is purely contingent and historical.[3]
So, what exactly led the Constituent Assembly to
categorise some rights as justiciable and others as non-justiciable?
In an argument given by Shri M. Ananthasayanam
Ayyangar during the Constituent Assembly debates on 19th November,
1948, one of the reasons cited for declaration of DPSPs as non-justiciable is
the sheer uncertainty of being able to implement these directives.
He contended that creating fundamental rights out of
idealistic policies would lead to exorbitant burden on the nascent government
of a newly independent India as well as to an increase in violation of rights.
Instead, future governments must be given the option
to turn DPSPs into being justiciable through legislative action on their own
volition, as the country develops and prospers.
In the same context, the founding fathers of the
Irish Constituion (from which India borrowed the concept of DPSPs) state that
“They are not to be determined by the courts for this reason-that it is the
Legislature that must determine how far it can go from time to time, in the set
of circumstances, in trying to secure these ideals and aims and objectives.”
Secondly, the reason for not declaring DPSPs as
enforceable is possibility of stringent judicial measures in face of
legislative actions. Chinnappa notes that the nonjusticiability of DPSP do not
preclude courts to consider them in their interpretation of the Constitution
and laws but limits their power to “issue directions to the parliament and the
legislature of the states to make laws”.
If the DPSPs were justiciable, it would lead to the
breakdown of legislative mechanisms.
These two factors can validly explain the placement
of the UCC provision in the Indian Constitution.
Despite extensive debate, the framers of our
Constitution were unable to reach a consensus regarding the UCC provision.
Originally intended to be a part of fundamental rights, the pioneering
lawmakers ultimately compromised, leading to the placement of the UCC under
Part IV.
The period of time surrounding independence had
elements of communal volatility. The country had witnessed a partition based on
religion, which also led TO violence based on the same. At that time, the
Muslim League had already made claims that the Congress intended to turn India
into a “Hindu nation’ disregarding minorities.
In such a situation, the Assembly deemed fit the
placement of the UCC under Part IV, hoping that in the future, when the fire of
hatred between the religious communities had extinguished, such uniformity
could be achieved.
They placed the UCC provision under DPSPs in hopes
that it will address social inequality.
The Stakeholders
Each and every issue that can be discussed between
members of civil society has certain stakeholders. Each and every event
sparking disagreement does so because it affects humanity and its values.
In this debate, the nation, in its entirety, is a
stakeholder. The UCC, by bringing under its ambit personal laws, affects
religions, cultures, values, traditions- all of which have helped in pulling
man out of primitive ages and into civility, giving each man a unique identity
and a sense of belonging.
The fact remains that India is far from a homogenous
nation. Diversity oozes out of its gullies and manifests itself in beautiful
acts of unity and not-so-beautiful events of communal controversies.
The debate boils down to secularism versus civil
code.
It becomes a sub-topic of the larger issue of
inconsistencies between DPSPs and fundamental rights as it contends rights
enshrined under Article 25 and 26, namely Freedom of conscience and free
profession, practice and propagation of religion, and Freedom to manage
religious affairs against the goal mentioned under Article 44.
Now let us examine both the sides.
The proponents of the Uniform Civil Code
In the present times, the UCC debate has garnered
attention owing to BJP’s pitch demandING for it at a Bhopal rally ahead of the
2024 polls. This pitch finds support in recent judgements by the Supreme Court
in favour of the UCC. In the 1985 case of Mohammad Ahmed Khan
v. Shah Bano Begum regarding the right of Muslim women to
claim maintenance, the then Chief Justice of India Y.V. Chandrachud observed
that a common civil code will help the cause of national integration by
removing disparate loyalties to law which have conflicting ideologies.
The second time the SC supported the UCC was in the
case of Sarla Mudgal v. Union of India where the question of
whether a man married under Hindu Law could solemnise a second marriage by
embracing Islam. Here, Justice Kuldip Singh opined that “Where more than 80 percent
of the citizens have already been brought under the codified personal law there
is no justification whatsoever to keep in abeyance, any more, the introduction
of the 'uniform civil code' for all the citizens in the territory of India.”
Lastly, in John Vallamattom v. Union of India
involving the Indian Succession Act, Chief Justice Khare stated that “We would
like to State that Article 44 provides that the State shall endeavour to secure
for all citizens a uniform civil code throughout the territory of India It is a
matter of great regrets that Article 44 of the Constitution has not been given
effect to. Parliament is still to step in for framing a common civil code in
the country. A common civil code will help the cause of national integration by
removing the contradictions based on ideologies.”
These arguments promoting the notion of ‘one nation,
one law’ basically state that by removing disparities or conflicting between
various laws the UCC will not only make administration of justice easier but
also promote national integration as being governed by a single codified law
will help people feel more united.
Secondly, it is contended that the UCC will do away
with gender discriminatory laws hidden in personal laws of different religions.
Hindu women are entitled to equal share of property but Muslim women shall get
half the property as compared to their male counterparts. Until the Shah Bano
case, Muslim women did not have the right to maintenance. The proponents of UCC
ask how the removal of such gender injustice and subjugation of women harms the
culture of a community. They argue that introduction of the UCC does not mean
the advent of a state religion as it does not impose any beliefs on the people,
rather simply tries to remove practices that clearly violate Article 14 and 21
of the Indian Constitution. The UCC does not govern whether a marriage shall be
a sacrament coming into existence after completion of seven vows or whether it
should be treated as a contract. However, it springs into action when discriminatory
practices are justified in the name of religion. It simply makes sure that the
civilised treatment of individuals is not marred in the name of God. The UCC
does not interfere with core values of a religion but simply does away with
such extensions of religious belief that harm basic human rights.
An example of this is the abolishment of
untouchability. In the orthodox Hindu society, caste system was an inherent
characteristic governing everything from what profession a person can practice
to what clothes they shall wear. The removal of this heinous practice
definitely did not harm the culture of the Hindus, rather provided a chance for
upliftment of the downtrodden classes.
In the same context, B.R. Ambedkar stated during the
Constituent Assembly Debates-
"I
personally do not understand why religion should be given this vast, expansive
jurisdiction, so as to cover the whole of life and to prevent the legislature
from encroaching upon that field. After all, what are we having this liberty
for? We are having this liberty in order to reform our social system, which is
so full of inequities, discriminations and other things, which conflict with
our fundamental rights.”
Thus, the UCC becomes a path to gender justice and social equality in the society.
The opposition to the UCC
The primary contention of those opposing the UCC is
that it interferes with Articles 25 and 26 of the Indian Constituion. It can be
said that they view religious practices as an absolute right. According to
them, the UCC will lead to corrosion of unique culture of various religions. The
Muslim Law Board cited the example of the ban on wearing hijab to emphasise the
point that interference of State (or judiciary) in the realm of religion could
lead to accepted religious norms being harmed.
The second question is whether the UCC could lead to
mass application of the Hindu Personal Laws. This is more of a political issue
than a legal question and is only mentioned as a factual description of the
debate surrounding the UCC provision.
The third argument is related to Scheduled tribes,
especially of Nagaland. Neiphiu Rio, the CM of Nagaland moved a resolution
citing Article 371(A), which protects laws of the state to be changed by the
Central Legislative Assembly, unless the State Assembly assents. The
implementation of the UCC will go against Article 371 (A).
Conclusion
Both sides of this debate use a different
interpretation of the UCC provision. The proponents pull a balancing act to
support the UCC. They believe that cultures can and should be modified to fit
basic human rights. On the other hand, the opposition operated from a place of
fear is subjugation of minorities in case a uniform law regarding personal
matters is implemented.
It is true that the need that the Constituent
Assembly felt, during the early days of independence, is still very much
relevant. Gender issues and hindrances to social equality are still prevalent
in society.
The fight is between equality and right to practice
religion. People participating in this debate come from different ideological
backgrounds. Some believe that the word of god supersedes human rights and
others believe the opposite. Balance and compromise are the laws of nature.
Proponents believe that the implementation of the
UCC through which different people can freely practice and profess the core
values of their religion all the while recognising equality is the ideal
implementation of the law.
This would require a fundamental change in the
perception of various people and more importantly, a trust in the government to
delicately deliver this provision into ground realities.
This interpretation allows for co-existence of
Article 25 and 26 with Article 14.
If the ideal society is to be achieved the genuine
fears of the opposition need to be assuaged.
Partly, the solution lies in clearly demarking the
reaches of the UCC so as to not indulge with provisions such as Article 371
(A), otherwise, it could lead to chaos.
The idea is not awry but too delicate for such a
diverse society.
[1]
The Indian Founding: A Comparative Perspective. / Lerner, Hanna.
The Oxford Handbook of the Indian Constitution.
ed. / Sujit Choudhry; Madhav Khosla; Pratap Bhanu Mehta. Oxford University
Press, 2016.
Research
output: Chapter in Book/Report/Conference
proceeding › Chapter › peer-review
[2] 1959 1 SCR 995
[3]
Directive Principles of State Policy: An
analytical approach, Gautam Bhatia, Indian Constitutional Law and
Philosophy
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