INTRODUCTION
India-one of the largest democracy has a multiparty parliamentary system, vociferous media, and vigilant NGO’s. Besides this, its traditional, cultural, religious, and linguistic edifice is based on diversity, which is cherished by all nooks and corners of India. Therefore, the above-given concepts give rise to separate identities apart from nationality, i.e. cultural identity, religious identity & regional identity, etc.
There is a very close nexus between those identities and personal laws. Compromising with the personal law may lead to an identity crisis that may not be in the interest of “Unity in Diversity”. Moreover, the Constitution of India under Part III provides for the Right to protect, propagate one’s own religion and culture which in turn means to preserve religious identity which includes practices, norms, way of life. These specifications are entirely under the ambit of Personal laws. And hence bringing into effect a Uniform Civil Code would do injustice to the provisions of the Constitution of India, and the principle of “Unity in Diversity”.
In addition to that practically implementing a single colored law for all the religions which are entirely different from each other would create a ruckus and numerous legal questions will spring out of it, as all the personal laws whether codified or uncodified, reformed or unreformed is a hindrance to the achievement of the goal of Uniform Civil Code. The problem of achieving Uniform Civil Code is not Muslim centric, rather codification of un-similar religious laws into a single mold is the real problem. There are instances of countries that have a Civil code but they also have uniformity of religion. Now India does not stand on that parameter viz., uniformity of religion.
We must change our preconceived notion that Uniform Civil Code is the solace of maintaining diversity. It is a DPSP and not a Fundamental Right for a reason, i.e. Religion is a basic Human Right under Article 18 of Universal Declaration of Human Rights, to which India is a signatory.
Now, why not make a Code, but not Uniform in nature! The purpose of Code is to consolidate laws of the same group. Why not make different Codes for different religions along with their sub-schools. In that way, we would achieve the principle of “treating likes alike” which is central to the notion of justice.
CONUNDRUM OF UNIFORM CIVIL CODE
A Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly.
They cover areas like- Marriage, Divorce, Maintenance, Inheritance, Adoption, and succession of the property. It is based on the premise that there is no connection between religion and law in modern civilization. The Supreme Court, in a judgment delivered in Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira[1], (2019) observed that no attempt has been made yet to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations by it.
Justice Deepak Gupta, speaking for the bench, also remarked that Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights.
The bench, also comprising of Justice Aniruddha Bose made these observations in Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira while holding that it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.
In the judgment, Justice Gupta said:
“It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano and Sarla Mudgal & Ors. vs. Union of India & Ors.”
CURIOUS CASE OF GOA
Explaining the salient features of the Portuguese Civil Code, the bench further said:
“However, Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. It would also not be out of place to mention that with effect from 22.12.2016 certain portions of the Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code. The salient features with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage or acquired after marriage by each spouse. Therefore, in the case of divorce, each spouse is entitled to a half share of the assets. The law, however, permits pre-nuptial agreements which may have a different system of division of assets. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam, there is no provision for verbal divorce.”
SC’S EXHORTATION FOR A UNIFORM CIVIL CODE
Mohd. Ahmed Khan vs Shah Bano Begum[2] (1985)
The then Chief Justice of India YV Chandrachud, speaking for the Constitution bench which delivered the landmark judgment had made these observations:
It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.
Sarla Mudgal vs Union of India[3] (1995)
This judgment authored by Justice Kuldip Singh began with this note:
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said: “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% 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 “uniform civil code” for all citizens in the territory of India.
John Vallamattom vs Union of India[4] (2003)
In this judgment, the then Chief Justice of India VN Khare had observed:
“Before I part with the case, I would like to state that Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is suspect legislation. Although it is doubtful whether the American doctrine of suspect legislation is followed in this country…
…It is a matter of regret 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. For the reasons aforementioned, this writ petition is allowed and Section 118 of the Indian Succession Act is declared unconstitutional being violative of Article 14 of the Constitution of India.”
Law Commission of India’s view:
The formulation of a UCC is neither necessary nor desirable at this stage.
In its consultation paper on ‘Reform of Family Law’, the Law Commission had highlighted the importance of recognition of difference that exists in Indian society and opined that the formulation of a Uniform Civil Code is neither necessary nor desirable at this stage.
While the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be dis-privileged in the process. The resolution of this conflict does not mean the abolition of difference. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination but is indicative of a robust democracy.
A CODE BUT NOT UNIFORM
The question is why all of a sudden Government became so much interested in implementing Uniform Civil Code which is DPSP, whereas we may say abundant murder of fundamental rights. To achieve a welfare state DPSP is sine qua non but not at the cost of Fundamental Rights. Supreme Court has time and again reflected in its judgments that Fundamental Right and DPSP are not competitors in which credence should be given to one over other, but they are dependent on each other and therefore a harmonious construction must always be adhered to in times of question.
Instead of making a Uniform Civil Code in regard to the distinctive Indian scenario, why not we make Codes for each religion. Indeed, Article 25 of the Constitution of India provides us the freedom of religion, and that is also extended to customary practices which are not opposed to public health, morality, and safety. Instead of bringing the entire sphere of all the religions governed under Personal laws to the same pedestal, why not take a different stand for different religions. Code means consolidation of laws of some kind, the idea of a Civil Code for all the religions followed is at fault, because evidently every religion as a different set of practices and they are not of the same nature or kind.
A Code for religion would lead to multiplicity of Personal laws and would be a humongous task to carry out. But then India has the worlds largest Constitution, because it has taken into account of every different aspect at each stratum of society by which the country is made of, and imbibed all ethos within it. The idea of code for religion might sound impossible but is not.
The benefit of a different Code for different religion will be to safeguard the sphere of the Personal laws which provides a person with a distinct identity to live with from Legislative infringement. This segregation will limit the scope of interpretation by Courts in the application of Personal laws. Thereby the 5 aspects which are governed by Personal laws will be saved within the religious realm.
An important question arises here is, what about Atheist! India is a secular country and such is reflected within its law. The legislature has formulated secular laws for those who by choice would renounce their personal laws and wanted to be governed by the secular laws. Examples for such are the Indian Succession Act 1925, The Transfer of Property Act 1882, the Special Marriage Act 1954, the Child Marriage Restraint Act 1929 and so on. Any person who renounces the domain of religion would be governed by secular laws, and also the persons who do not want to be governed under religious laws.
Uniform Civil Code provides for consolidating all personal laws in the same and uniform pedestal, which means we can verily say it tries to equate Meher and Stridhan, which are two entirely different concepts. Many more examples might be possible but the outcome would be the same. In the heterogeneity of religion, culture, customs, rituals, rite, and practices followed in India Uniform Civil Code will only amount to disharmony and chaos.
In the pretext of the foregoing discussion above, I would, therefore, like to say Uniform Civil Code is a Sisyphean approach. Rather different Code for different religion is more Realist idea. The Supreme Court as Sentinel Qua Vie must protect the fundamental rights of a person, which includes freedom of religion. Supreme Court must act consciously if Legislature intends to implement Uniform Civil Code, and scale it on the demographics, heterogeneity, fundamental freedom of citizens of India. Supreme Court should not go for the literal interpretation of Article 44 rather should take up a harmonious interpretation.
[1]Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira and Ors. (13.09.2019 – SC) : MANU/SC/1257/2019.
[2] Mohd. Ahmed Khan vs. Shah Bano Begum and others (A.I.R. 1985 S.C. 945).
[3] Sarla Mudgal and Ors. vs. Union of India (UOI) and Ors. (10.05.1995 – SC) : MANU/SC/0290/1995.
[4] John Vallamattom v. Union of India, AIR 2003 SC 2902.
This article is authored by MD. ALI IBRAHIM, Student of LLM IInd Year Faculty of Law, Aligarh Muslim University.
Also, Read Uniform Civil Code under article 44 of the Indian Constitution
