The debate around Uniform Civil Code (UCC) has polarised political discourse in India. The belligerent groups have transformed comment on the issue into a conflagration, the only uniformity being the rigidity in the respective points of view and a consequential lack of rationality in the comments with a code of silence exercised by the executive neutralising the recited constitutional mandate.
The supporters of UCC are accused of having a majoritarian agenda. An impending threat of tyranny of the majority is assumed to be implicit in the claim of the supporters with the detractors contesting the right to take decisions affecting the society as a whole without leaving space for pluralism in the society. The critics of UCC, on the other hand, are derided by the supporters of UCC as regressive reactionaries opposed both to secularisation and modernisation and disloyal to what is seen by the supporters of UCC as a fundamental constitutional norm.
There is, however, no truth in either of the views expressed on both sides of the issue and the cleavage in the respective opinions is a tragic outcome of prejudice towards and distrust of each other. It is indeed ironical that a provision intended to unify the country should leave it so battle scarred. It does no credit to participative democracy that genuine discussion on the topic is avoided by ad hominem comments by the disputants.
A written constitution is itself a Code and is the fundamental organising principle of a political state containing a broad understanding about the way in which the people have decided they will be governed. And our constitution unequivocally stipulates that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. To denounce, therefore, advocacy of a UCC as majoritarianism is to insult the body of doctrines which constitute our Constitution. At the same time, as the constitution does not in itself contain a model code and talks of "endeavour to secure" a uniform civil code, an earnest attempt to achieve the objective must meet all contrary points of view and that obligation cannot be met by simply disparaging and mocking the discordant and conflicting points of view.
A bare look at the Constituent Assembly debates shows that the Assembly did not contemplate that acquiescence of the affected communities was a condition precedent to the formulation of the UCC. Various amendments were suggested to the draft Article 35, corresponding to Article 44 of the Constitution. Mohd Ismail Saheb suggested that "any group, section or community of people will not be obliged to give up its own Personal Law in case it has such law". Naziruddin Ahmad proposed that "the Personal Law will not be changed except with the previous approval of the community ascertained in such manner as the Union legislature may determine". And Mahmboob Ali Beg urged that "nothing in this article will affect the Personal Law of the citizen" (Mahboob Ali Beg Saheb Bahadur). None of the said amendments were incorporated into the Article. The framing of UCC, therefore, does not require consent or approval of any community.
In fact prior to the enactment of Shariat Act, 1937 Muslim Personal Law was neither immutable nor uniform. This fact was taken into consideration while enacting Article 44 into the Constitution. Thus the Khojas and Cutchi Memons followed certain Hindu customs, Muslims in North Malabar followed Marumakkathayam Law - a Matriarchal form of law common to both Hindus and Muslims- and the Shariat Act itself was not extended to North West Frontier Province initially and has, since, not been extended to Goa. Both K.M. Mumshi and B.R. Ambedkar dealt with this circumstance while opposing the aforementioned amendments to the Article. In other words as Personal Law was not so inflexible or fixed as could not be said to be unmodifiable through Uniform Civil Code. The Shariat Act was but an application of the policy of divide and rule crafted by the British and hardly a justification against UCC.
A reference to different provisions of the Constitution also re-enforce the view that Personal Laws were never seen as being protected or immune from interference or change. Provisions of Part III are instructive and permit intervention by the State into practices considered inconsistent with constitutional principles. Thus Article 17 abolishes untouchability violating as it did the principle of equality recognised in Article 14. Similarly Article 25(2) declared that the right to freedom of religion will not "prevent the State from making any law for social welfare and reform", the right itself being subject under Article 25(1) to "public order and morality". Personal Laws are in fact included in LIST III to the Seventh Schedule of the Constitution and hence can be the subject matter of a law made by Parliament under Article 246(2) of the Constitution. Needless to mention that law made by Parliament will prevail over that made by the State Legislature in the event of there being any repugnance between the two. Thus even without Article 44 being in the Constitution the Parliament would be competent to codify the law relating to marriage, divorce and succession and such law would be intra-vires the Constitution. In yet enacting Article 44 the Constituent Assembly transformed what would otherwise be a permitted act into one which was obligatory as being “fundamental in the governance of the country” it being “the duty of the State to apply these principles in the making of the laws” as stated in Article 37 of the Constitution.
It will be important to disabuse here a popular misconception. UCC will affect the Hindus as a community as much as any of the other communities, perhaps more. Notwithstanding the formulation of Hindu Code law is still not uniform for the Hindus. Thus under the Hindu Marriage Act, 1955 "customary rights and ceremonies" continue to be recognised by Section 7 thereof. Similarly Section 10 of The Hindu Adoption and Maintenance Act, 1956 also recognises "customs and usages" in deciding upon the capability of a person of being taken in adoption. And Section 17 of the Hindu Succession Act, 1956 provides that rules of succession and distribution of property contained in Act would not apply to Marumakkattayam and Aliyasantana laws. The Code will render Mitakshara and Dayabhag, Manu and Yagnavalkya irrelevant, eliminate the differences in legal regimes in existence in places like Goa, Pondicherry, Jammu and Kashmir and affect also the concept of coparcenary and joint family. Hindus too therefore have a lot to lose with the enactment of a Unform Civil Code. In fact the Code will change the whole basis of personal relations presently in place in the community. Differences are not there amongst Muslims only there being significant differences existing amongst the Hindus too. There cannot be anything remotely majoritarian about the move.
In fact the Constitution, itself, guards against any majoritarian tendency where it wants to insulate communities from change. Illustratively Article 371A clearly stipulates that "notwithstanding anything in this Constitution no Act of Parliament in respect of religious and social practices of Nagas, Naga customary law or procedure and administration of civil and criminal justice involving decisions according to Naga customary law shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by resolution so decides." The application of Article 44 is therefore specifically excluded in relation to Nagaland. The Constitution itself having provided exceptions to Article 44, there cannot be any exclusion outside the Special Provisions contained the Constitution.
The judgment of Bombay High Court in Narasu Appa is sometimes cited to contend that Personal Laws are not included in laws defined in Article 13 of the Constitution of India and cannot be tested for inconsistency with PartIII of the Constitution. The judgment however is irrelevant to the issue. It dealt, amongst other issues, with an argument that with the enactment of the Constitution "Muslim Personal Law had become void" and in that context the court examined whether Personal Laws will come within meaning of Article 13. What is nevertheless significant is that court approved the American decision Davis vs Beason. The said judgment held that views of one’s relations with one's Creator are qualitatively different from forms of worship and held that while laws cannot interfere with religious beliefs and opinions they can definitely interfere with religious practices. It went on to say that society being built upon marriage out of which social relationships spring "the government is necessarily required to deal with the same." The Bombay High Court relying upon the said judgment held that "marriage is a social institution in which the State is vitally interested" and that the "State is empowered to legislate" on it notwithstanding it amounting to interference with freedom of religion. This view is consistent with a plethora of Supreme Court judgments on Article 25 and clearly shows that Personal Laws can be interfered with.
When Section 125 crpc was extended to divorced women, Muslims contended that it should not be app;lied to them as it was contracry to shariat but superme court turned down this contention
If the State is competent to legislate on all Personal Laws it cannot but be competent to also formulate a Code of such laws. A defining feature of civil law jurisdictions, codification is now present in common law jurisdictions too. Codes are meant to be the sole source of law and reference to any other source is rendered unnecessary upon formulation of Codes. Such codes already exist in the fields of civil and crimal procedure, transfer of property and contract. The extension of such codes on into the realm of personal relations concerning marriage and succession will be nothing other than continuation of the same “endeavour” imbued with the same quality and permitted by the same principle.
Nevertheless the problem arises with some of the other reasons which are usually given to justify the enactment of UCC. In this context it would be pertinent to refer to some of the judgments of the Supreme Court exhorting enactment of a UCC. The observations in Sarla Mudgil need special mention in this regard. It are such observatons which create hurdles in the enactment of UCC. It should first be clarified that the observations in Sarla Mudgil were clearly obiter (and the Supreme Court has itself clarified this in its subsequent pronouncements). In an act of gross impropriety the Supreme Court in the said judgment distinguished Hindus, Buddhists and Jains from “other communities” in their ability to recognise the importance of “national integration”. And here lies the problem. The patriotic credentials of no community is suspect and want of opposition of some (Hindus, Buddhists and Jains) may be more due to want of awareness of what is in store for them under a UCC than their perceived ‘patriotic” willingness to forego what they are used to. As explained above, UCC will affect the Hindus as much as it will affect the Muslims and in the absence of any model code their willingness to subscribe to it cannot be known in advance. It is for this reason wrong to demonise anyone opposing the proposed Code as the extent of opposition across communities is not yet knowable. Mere competence to enact a UCC, therefore, cannot necessarily make the Code a viable option.
In fact the Constitution itself guards against any majoritarian tendency where it wants to insulate communities from change. the constitution itself provided exception to article 44
In any event as the Law Commission has recorded “difference does not mean discrimination” and is instead a sign of “robust democracy.” The emphasis on “equality within communities” rather than eqality “between” communities can bring about the same result as UCC. The enforcement of “equality within the community” is evidenced by steps taken to prohibit triple talaq and in making separate religious practices conform to the constitutional mandate of equality a uniformity may also be achieved amongst different personal laws. However the simultaneous opposition to both UCC and remedial and reformative steps like those taken against certain pernicious religious practices is clearly unjustified using as it does the bogey of being besieged to stall social reform and perpetuate discrimination. And it would definitely be better to implement Article 44 because with the growth of modernisation and globalisation the traditional codes, evidenced in Personal Laws, with different provisions concerning validty of marriages, consequences of conversion, right to adoption and rules of succession may not accommodate the emerging multicultural realities and aspirations. There is, as B.G.Verghese in an article of remarkable prescience noted, growing migration and economic and social mobility and consequently an increasing inter-caste, inter-regional and inter-religious mingling and marriages. A UCC will be better suited for the realities of contemporary social life, consistent with the values and principles of the Constitution, take individuals out of their silos and integrate them into a truly pluralistic society. It has already been established there is no legal infirmity whatsoever in the formulation of a UCC and the option to abide by the said Code can be left to an individual’s choice. This would also be in consonance with the “assurance” B.R.Ambedkar gave to the Constituent Assembly. Emphasising the word “endeavour” Ambedkar clarified that the Article did not mandate that after the same is framed the State shall enforce it on all its citizens. “At the initial stage the application may be purely voluntary.” A combative confrontational environment can then be substituted by a complaisant conciliatory one and both the values of the Constitution and worth of participatory democracy realised.
(The writer is senior Advocate, Supreme Court, Addl. Solicitor General of India)