After implementing its agenda of abrogating Article 370 and construction of Ram Temple successfully, the Union government is working to bring a Uniform Civil Code on the statute book on the theme of One Nation-One Law. But it is treading cautiously by trying to build a broad consensus to pre-empt any controversy.
Personal laws are primarily concerned with marriage, divorce, custody of child, maintenance for divorced women, guardianship, adoption, succession and inheritance. Obviously, such issues have hardly any reflection on religion even though different religious communities practice different personal laws. Religion can be professed and propagated irrespective of uniformity in personal law.
Religion talks about immortality, devotion to God, pursuits of spiritual goals and salvation, while personal law has its domain in mundane worldly affairs. Faith of a person in religion is not fettered by personal law. We have uniform criminal laws and there is no reason why we cannot have uniform civil laws.
Different personal laws in fact conflict with the Right to equality and to secure gender justice. The Uniform Civil Code is a reformative move and is strengthened by the example of its successful implementation in Goa. The Supreme Court too has repeatedly asserted for implementing Uniform Civil Code as contained in Article 44 of the Directives Principles of State Policy of the Constitution.
Protagonists of Uniform Civil Code assert that personal laws must be reformed to make them resilient with the changing dynamic social system.
Yet, the path of implementing the uniform civil code at the national level is fraught with serious Constitutional and political ramifications. Though demand for Uniform Civil Code has its genesis in the Constituent Assembly debates and judgments of Supreme Court, Government would not like to see a flare-up as witnessed during the agitation on CAA.
Considering complexities, framers of the Constitution chose not to keep Personal law in the Union List for the time being and left the States legislatures with powers to enact laws in such matters subject to the substantial law passed by Parliament. However, an opposite stand was taken for Hindus when a comprehensive Hindu Code Bill was drafted.
Prior to 1955, Hindus who constitute a majority were also governed by their personal law based on customs, traditions and principles. Sardar Patel, Pattabhi Sitaramaiah, Anantsayanam Ayyangar, K.N. Katju, Dr. Rajendra Prasad and others strongly opposed the Hindu Code Bill. Dr. Rajendra Prsad went to the extent of declaring that even if the code was enacted, he would strike down the same as President.
Pandit Jawahar Lal Nehru, being an agnostic, was however adamant and pursued the enactment of Hindu Code Bill relentlessly. Questions were raised as to why only Hindus should be subjected to such controls leaving all other religious communities to continue with their parochial laws. However, despite resistance from all quarters, Hindu Code was enacted in the form of Hindu Marriage Act, Hindu Succession Act and Hindu Adoption and Maintenance Act. Special Marriages Act too was enacted which makes provisions irrespective of any religion. Perhaps that was the appropriate time for a uniform civil law to have been enacted and that would have gone down well with the country. It was necessary because there has not been uniformity even within Muslim personal law, with one for Shias and another for Sunnis. Enacting a law for one religious community to the exclusion of other communities was itself a discriminatory move. Historic blunders are difficult to correct and same is applicable in this case also.
Now Law Commission has suggested that emphasis should be laid on reforms in personal laws. It suggests that diversities in personal law may continue and reformative steps could be introduced gradually. It suggests achieving the task step by step. Any hasty action would enable fanatics to hijack the real issue to inflame passion and declare it as an onslaught on religion. It made no concrete suggestions to achieve the priorities like equal protection of law for women and gender justice. We have the example of Shah Bano case when entire Muslim community stood as one to oppose Supreme Court judgment on grant of maintenance to Shah Bano under Section 125 of Cr.P.C. So far as Constitutional provisions are concerned, it is necessary to refer to Article 44 of the Constitution which says the State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India. This article is however not justiciable as it is merely a directive. Article 15 of the Constitution lays down that the state shall not discriminate against any citizen on grounds only of race, religion, caste, sex, and place of birth. Article 25 of the Constitution lays down that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health. Article 26 says that all denominations can manage their own affairs in matters of religion. With such freedom of religion being guaranteed by the Constitution and enforceable as fundamental rights, Article 44 is a mere directive or guideline declaring the philosophy and objective of the Constitution. Now the question arises whether matters relating to personal laws are a matter of religion.
Religion is not concerned with personal law although it is practiced within religious communities. Looking at the tenets of any religion and basics of personal law of any religious community, religion has its ingredients rooted in spirituality, mode of worship, conducting prayers and rituals relating to religious practices. But personal law has nothing to do with such objects as its domain includes marriage, divorce, adoption, succession and inheritance. But political parties, with their agenda, have resisted a uniform civil code on the ground of interference in religious affairs.
Critics of a Uniform Civil Code argue that it is not possible in view of Articles 15, 25 and 26 of the Constitution. An analytical study of these articles with interpretations pronounced thereon by Supreme Court from time to time, would make it clear that these are not in confrontation with the objective of Article 44. Religion and personal law are different avenues. That is why the Supreme Court suggested that a uniform civil code must be framed to bring equality and put curbs on discrimination in matters of dispensation of justice.Some political parties oppose a uniform civil code on the ground that it is against democracy. This argument has no legs to stand on because in that case uniformity in criminal laws would have also been against democracy. On the contrary, uniform civil code will enable men and women to be aware of their right to equality and about the sweeping changes in the realm of their affairs with regard to marriage, succession and inheritance. At this juncture when major reforms have been introduced in almost all the theocratic countries with liberal outlook, there is no reason why a major part of our population should remained deprived of the reforms. The Portuguese Civil Code of 1867 which continues to be implemented after India annexed Goa in 1961, applies to all Goans, irrespective of their religious or ethnic community. Surprisingly, there is no problem in Goa. It is only when a common code for India is talked about that all problems crop up. To ensure that religious communities do not remain deprived of the fruits of a liberal outlook, equal treatment of laws in matters of personal life, it is for them to come forward and ask to be governed by the same law. In any case, uniform civil code cannot be imposed as it requires broad consensus. Unfortunately, in our country, everything is seen from a political perspective and that may not help in evolving a national consensus. Law Commission is perhaps right when it suggests going slowly.
The writer is Advocate, Delhi High Court.