UNIFORM CIVIL CODE IN INDIA’S ENLIGHTENED CONSTITUTION
In a democratic, constitutionalist and enlightened constitution like ours, the state is obliged to treat its citizens equally, irrespective of religion, race, caste, sex etc., in order to ensure that all citizens get uniform rights, however, whether such a uniformity is to be provided in personal matters, has been a matter of debate. It is pertinent that a diverse and plural socio-cultural set up certainly requires personal laws for different groups and communities so that the cross-cultural barriers do not become impediments to national integration.
When Article 1 of the Constitution of India writes, ‘India, that is, Bharat shall be a Union of States’, in fact, it refers to two different connotations. While ‘India’ reflects politic-diplomatic unity, ‘Bharat’ signifies India’s diverse but composite culture which is based on the core value of tolerance. To be more appropriate, it may be said that it is the Union which shall be responsible for not only organising the states but also for taking decisions in the context of foreign affairs. On the other hand, as a Union of States it signifies that despite sates have their own specific cultures, it is ultimately the culture of India. Hence, Article 1 itself lays the foundation of unity and integrity in the Constitution. Moreover, India’s political design also signifies a decentralised form of governance in which the Union shall serve as the allocator of resources whereas the states shall be the distributors. Thus, a participatory and democratic approach has also been constitutionally provided. The core value of tolerance may be secured and sustained only when every group or, community is able to protect its own specific cultural identity. This becomes highly important considering the Census 2011 data that there are over 2000 ethnic groups residing in India. The protection of culture is possible only when personal laws for every community get recognition. This may also serve as the bedrock of national integration. Probably this has been one of the major bottlenecks for the state to implement the provision of a Uniform Civil Code(UCC) even after six decades of independence. However, it is also a fact that that diversity in personal laws have proved to be anti-
thesis to uniformity.
Personal laws do play very critical role in making the communities participate in the politico-socio-cultural milieu, but they must be in conformity with the Constitution
Personal laws do play very critical role in making the communities participate in the politico-socio- cultural milieu, but they must be in conformity with the Constitution. Recent debates on personal laws with reference to the issue of ‘triple talaq’ and gender justice have become a matter of serious concern and once again have prompted us to revisit the concept of UCC in the context of constitutionalist and enlightened constitutional system of India. The question is whether constitutional protection given to religious practices as prescribed in personal laws, should extend even to those that are not in compliance with fundamental rights. The idea that personal laws of religions should be beyond the scope of judicial review, and that they are not subject to the Constitution, is inherently abhorrent. Though rights have been granted under personal laws and also in the Constitution, especially the right to freedom of religion under article 25, shall not be absolute. Therefore, a constitutionalist approach shall be adopted to regulate them. There shall be a balance between the liberty of the citizens and authority of the state, which has been the foundational principle of a constitutionalist and enlightened constitution. At the same time, rights and duties shall coalesce to make a unified structure so that the check and balance system succeeds and sustained.
I kept on trying to use so many media and ideas in my work because our horizon is so vast and Indian culture is so rich that I think what we are today, culturally, we have a unique position and I don’t think one lifetime is enough to encompass it.
CONSTITUTIONALISM IN INDIA
Being a unitary or parliamentary federation, India practices both the principles of ‘fusion of powers’ (The phrase ‘fusion of powers’ is believed to have been used for the first time by Walter Bagehot. In Indian Constitution, it finds its expression in article 75(3) in the form of collective responsibility of the Council of Ministers to the Lok Sabha.) between the Executive and Legislature and also ‘separation of powers’ with two different approaches. First, the non- interventional approach to the powers to be exercised by the legislature, executive and judiciary; and, second, the distributional approach to divide the law-making powers between the Union and states . However, it follows a check and balance model to effectively institutionalise it to ensure independent centres of decision making. This necessitates the installation of a philosophical concept of constitutionalism for the protection of fundamental rights as enshrined in Part III of the Constitution of India and also for limiting the state to check any possible arbitrary exercise of powers. In this backdrop, it is evident that to preserve the basic freedoms of the individual and to maintain his dignity, the constitution should be permeated with constitutionalism. The Supreme Court in I. R. Coelho v. Union of India AIR 2007, SC 861has opined that the principle of constitutionalism is now a legal principle which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based. In this sense, constitutionalism is a natural corollary to governance in India and has been established through the rule of law.
Goa is the only state in India which has a uniform civil code The Goa Family Law, is the set of civil laws, originally the Portuguese Civil Code, continued to be implemented after its annexation in 1961 However, the same article also guarantees the right of members of the Sikh faith to bear a Kirpan.
UNDERSTANDING UNIFORM CIVIL CODE
Article 44 of the Constitution of India writes,’The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ A civil code refers to laws that deal with civil matters like marriage, divorce, adoption, succession and inheritance.Presently such matters are generally governed by personal laws in India which has multiplicity of such laws (Some of the important personal laws practised in India include, the Hindu Marriage Act, 1955, Indian Divorce Act, 1869, Christian Marriage Act, 1872, Indian Succession Act, 1925, Parsi Marriage and Divorce Act, 1936 etc.).The issue of uniform civil code had become debatable in the Constituent Assembly itself and amendments were moved to protect personal law of any group, community or section of the people. There was an objection that such a code would infringe the right to freedom of religion as enshrined in article 25 of the Constitution. Further, it might amount to tyranny to the Minorities.
The basic idea of proposing a Uniform Civil Code was to separate religion from personal laws and also from social relations or, from rights of parties as regards inheritance or succession.
The basic idea of proposing a Uniform Civil Code was to separate religion from personal laws and also from social relations or, from rights of parties as regards inheritance or succession. Thus, the proposed code believes in unifying and consolidating the nation by every means without interfering with religious practices. Moreover, a common code will help the cause of national integration by removing the contradictions based on ideologies.
So far as the right to religious freedom under article 25 is concerned, it clearly mentions that such a right is available to all persons equally and is based on the principle of religious tolerance which is also the foundation of secularism in India (Barry Kosmin classifies Secularism into two categories, Hard i.e. complete separation of religion and state, and Soft, i.e. religious tolerance. Indian Constitution incorporates Soft secularism). It is also a fact that religion should be confined to regulate personal lives only and should not interfere one’s public life. There lies the importance of a duty-bound approach or a post- democratic approach to practice and to understand one’s own religion.
Many historian’s argue that the Rajiv Gandhi government lost the 1985 elections after it endorsed the Supreme Court’s decision supporting Bano
JUDICIAL APPROACH TO UNIFORM CIVIL CODE
Uniform Civil Code and secularism are not antagonistic, rather they are complementary to each other. The Supreme Court in S. R. Bommai v. Union of India AIR 1994 SC 1918has held that religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the state by law. The provision in Article 25 (2) is worth mentioning here which writes,’ Nothing in this article shall affect the operation of any existing any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practices.’ Thus, marriage, adoption, etc. are secular activities and hence are not opposed to Uniform Civil Code.
The Apex Court had directed the Parliament to frame a uniform civil code in Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 case. According to the Court, a Muslim woman have a right to maintenance from her husband after she is divorced under section 125 of Code of Criminal Procedure, 1973. There were serious debates on the decision and allegations were made that the judicial decision interfered the personal laws of the Muslim c o m m u n i t y . Finally, the decision was overturned by the Government of India by making a law, the Muslim Women (Right to Protection on Divorce) Act, 1986. Further, in Mary Roy v. State of KeralaAIR 1986 SC 1011the question raised before the Supreme Court was that certain provisions of the Travancore Christian Succession Act, 1916 were unconstitutional under Article 14. The Court ruled that the Travancore Act had been superseded by the Indian Succession Act, 1925. The decision gave a boost to the concept of gender justice. In Sarla Mudgal v. Union of India AIR 1995 SC1531 the Court opined that no community could claim to remain a separate entity on the basis of religion. The Court also held that the Uniform Civil Code shall be made in a phased manner along with the rationalisation of religions.
The issue of uniform civil code has emerged into India’s political discourse mainly due to the recent debates of triple talaq and polygamy claiming that such practices violate rights of women and it’s a kind of discrimination. Hence, the supporters of the Code claim that a common legal code would ensure strengthening of principles of equality and liberty in India. However, the All India Muslim Personal Law Board denies such a notion saying that the Judiciary or any other agency does not have any right to interfere in their religious affairs or, religion. India needs a uniform civil code primarily for two reasons. First, India is a secular democratic republic hence, it gives right to freedom of religion to all persons without discrimination. Further, religious and secular activities have been segregated from each other, a common code will ensure deepening of the core value of secularism in India.
The second reason is the to ensure gender justice by protecting the rights of women especially among the minorities. In the last two and half decades there has been dramatic changes in the attitudes and views in the society which have been essentially guided by the market forces and liberal tendencies. This era of liberalism demands equal participation of all sections of the society in the process of development. This goal could be achieved only when rights of the women are well protected. However, as the Indian socio-cultural fabric is still religious and conservative the process of secularization needs to be speeded up so that modernisation of the society takes place and the religions are rationalised. A trust building approach needs to be followed by the state and at the same time, the state also needs to take steps to make people more and more aware of their duties owards national integration. It should also be taken care of that constitutional law must override religious laws for the purpose of sustaining the principles of democracy and secularism as well.