Any debate on the ‘uniform civil code’ must inevitably be within the constitutional framework of secularism and freedom of religion and culture on which this country was founded and exists as one nation. There were three diverse sets of opinions on secularism in the Constituent Assembly: first; noconcern theory of secularism, which parted state and religion, second; no link theory between the state and religion which prevented the demeaning of religion and third; the equal-respect theory of ‘secularism’ which cherished all religions alike and granted religious freedom to all.

Post-constitutional developments endorse three constituents of Indian secularism: first; the principle of religious freedom which expansively protects all aspects of a religion including its beliefs, rituals, practices, thoughts, ideas and philosophies, and injuncts discrimination on grounds of religion, race, caste, place of birth or gender; second; the principle of de-politicization and celebratory neutrality which prevents the state from being taken over by any one community but permits it to assist all faiths in their endeavors and celebrate their existence as part of the pageantry of India; and third; the principle of social welfare and reform which requires religions to yield to a regulatory and reformative regime and cleanse their in-egalitarian, gender-unjust, and other constitutionally unacceptable prescriptions.

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Article 25(2) and Article 246 read with Entry 5 of the Concurrent List make it abundantly clear that the State is competent to bring social reform even if it goes against some religious and cultural beliefs. But, vote-seeking governments seldom venture reforms in personal laws. Article 44 of the Constitution conceded the distinctive personal laws in India and gave a directive that the state shall achieve a Uniform Civil Code applicable to all its citizens irrespective of race or religion. What does uniform civil code mean?

We already had a uniform criminal code ~ one that applied to all in the territory of India. We also had a number of civil laws which were uniform, like the Contract Act, the Transfer of Property Act, the Civil Procedure Code, etc. So, this uniform civil code essentially referred to personal laws dealing with marriage, divorce, maintenance, adoption, guardianship and succession-related matters.

The Muslim members of the Constituent Assembly who spoke on the uniform civil code were all men and except Tajmul Hussain from Bihar, all of them wrestled relentlessly to exclude the Muslim community from this Article. But the three exponents of social change and equality for women namely Minoo Masani, Raj Kumari Amrit Kaur, and Hansa Mehta, wanted it to be part of fundamental rights. In fact, Dr B R Ambedkar was also in favour of a uniform civil code and he was of the view that personal laws based on religion were unacceptably discriminatory in nature where women were given little to no rights.

Neither of the perspectives was accepted and it was placed under directive principles of state policy, deferring the problem to be fixed by the future governments. Hindu personal laws were profoundly reformed in 1955-56 despite the violent opposition of an orthodox President and Hindu religious leaders. However, Muslim personal law was allowed to be obsolete. Government took no steps to modernize the law of marriage and divorce pertaining to the Christians in spite of several requests from that community.

The Law Commission in its 80th Report, 1980 along with the Supreme Court and several High Courts voiced concern on this governmental procrastination. The government therefore cannot be absolved of the charge of having neglected the welfare of the minority communities especially Muslims. What was shoddier was that whenever reformatory efforts were taken by the courts as it happened in the Shah Bano case, the vote-seeking government made all efforts to annul the judgment and appease the orthodox community.

Arguments were advanced that one community might be prepared to accept social reform; another may not be. The State may rightly decide to bring about social reform in stages and the stages may be territorywise or community-wise. But the larger question remains as it is. When will minority communities be ready? Is seventy-five years not sufficient?

Was the Hindu community ready when the Shastric Hindu laws were radically transformed? Ever since the inception of the Constitution, the higher judiciary in India has faced the dilemma of dealing with compatibility of personal laws via-a-vis fundamental rights. This dilemma was started by a 1951 judgment of the Bombay High Court i.e. Narasu Appa Mali (AIR 1952 Bom. 84) which inappropriately held that personal laws until codified cannot be subjected to fundamental rights.

A judgment given in defence of gender justice became the biggest impediment to reform personal laws crammed with archaic and discriminatory practices. Narasu Appa Mali was dutifully followed until recently by the Supreme Court. However, recent progressive judicial trends in the Sharaya Bano and Sabrimala cases epitomizes the breakage of tradition from the ambiguous past and acceptance of the illuminating present. Therefore, when we have started discourse on uniform civil code (UCC), the word ‘uniform’ must be given a wider meaning. Let all communities be governed by uniform principles of constitutional and gender justice.

Each personal law therefore needs to be critiqued and filtered from the perspective of social and gender justice so as to weed out gender injustice and outmoded traditions or practices. Thus, Article 44 of’ the Constitution must be interpreted in combination with article 14 of the Constitution which guarantees equality before the law and equal protection of the law but permits reasonable classification.

We must also celebrate the salad bowl theory of multiculturalism where all cultures, religions and practices which are in tune with the Constitution and gender justice are given due respect. Such uniformity can sustain the diversity of the laws. Having distinct identities is not against national integration and they do not necessarily lead to separatism. Different ethnic, religious and linguistic groups have different traditions and cultures and these should not be obliterated just for the sake of uniformity.

Preserving one’s tradition and culture is an integral part of the right to life enshrined in Article 21 of the Constitution (Samatha v. State of Andhra Pradesh AIR 1997 SC 3297). Hindu, Christian and Parsi communities have moved ahead and accepted the first stage of reforms. Let the Muslim community come forward and accept the first stage of reforms which have been embraced by other Islamic countries long ago. In this context, the constitutional promise of a Uniform Civil Code could be conceived around the principles of equality, liberty and fraternity committed to constitutional and gender justice without upsetting cultural sensibilities associated with religion and culture.

(The writer is Professor of Law and Vice-Chancellor, National Law University of Tripura. The views are personal)