Sunday, May 19, 2024

The Unwritten Code

If secularism is part of the basic structure of Indian constitution and our democracy, then the question arises why has the enactment and implementation of the Uniform Civil Code taken a back seat till now? If secularism is to be acceptable by all, so should be the Uniform Civil Code.

By Satya Muley

In June 2023, the subject came up before the Law Commission of India which has invited views and ideas of the public at large and recognized religious institutions on the Uniform Civil Code (UCC). The subject has led to various kinds of opinions and debates from several quarters of the nation and has sparked an apprehension that the Union government may want to push the concept of UCC further, at least bring the subject to the centre stage, if not implement it nationwide, before the next assembly elections.

At present, India has various personal laws for citizens belonging to various religions. UCC refers to a potential common set of laws governing personal matters such as marriage, divorce, inheritance and adoption, among other subjects, for all Indian citizens, irrespective of their religion. This means that there will be one civil law for all Indian citizens. Such a concept is in line with Article 14 (equality) enshrined in the Constitution of India.

After the enactment of the UCC, it is expected that the nation shall move ahead based on one law for all people resulting in more streamlined legal procedures in personal subjects such as marriage, adoption, divorce, etc. Subjects such as justice delivery, equality shall become more robust in our nation, which in turn shall result into a more developed nation with lesser subjects of disparities between citizens hailing from various communities and religions.

Customs and traditions of various religions such as Hinduism, Islam, Christianity, Parsis, etc., form a source of their personal laws. Adopting a UCC will mean giving up most of such personal laws originating from religious customs and traditions. Our nation has recently seen the amount of resistance and national debate on the subject of “Triple Talaq”. Issues such as dressing styles such as “Hijab” have also been hotly debated as being part of “Essential Religious practices”. However, India has also seen the age-old religion-based practice of “Sati” being abolished as long ago as in 1829. “Polygamy”, which involves having multiple wives, has been made illegal for all the citizens with the enactment of various personal laws during the decade of 1950s. In fact, polygamy is also made a crime under Indian Penal Code (Section 494). Polygamy is not just an anti-social practice, but also contributes heavily towards population explosion resulting in a burden on government machinery and unstable societies.

Indian citizens, under Article 25 of the Constitution are equally entitled to freely profess, practise and propagate religion—subject to public order, morality and health. There is going to be a very strong opposition to the implementation of UCC on the ground of personal rights linked with religious freedom guaranteed under the Constitution of India. Some people also subscribe to the idea that religion is more important than the nation, and such an ideology is a big hurdle for the UCC.

But then, there also is a huge section of Indian society who believe that One Nation-One Law shall take India to newer heights and pave the way for a safe, secure and equality-based society.

Thus, how to strike a balance between Article 14, the provisions related to UCC in the Constitution of India, and various religious customs and practices is going to be a complex subject to deal with for the lawmakers.

The UCC was first proposed in colonial India in 1835 when the British government attempted to implement uniformity in the codification of Indian laws. Britishers enacted certain laws that aimed to bring about a uniform legal system in India. However, these attempts were met with resistance from various religious communities even at that time, who felt that their personal laws were being undermined.

Later post-Independence, framers of the Constitution of India were of the view that the implementation of UCC was essential for achieving social justice and equality in India. The intention behind this was to create a common set of laws that would apply to all citizens regardless of their religion, gender or caste. The concept of UCC was strongly supported by Dr Babasaheb Ambedkar, and he was of the view that having different personal laws based on religious beliefs created inequality between different communities and reinforced discrimination against women and marginalized groups. He argued that implementing a UCC would promote national integration, end discriminatory practices and provide equal rights to all citizens under the law. Therefore Article 44 was included in the Constitution of India under the chapter of Directive Principles of State Policy. Article 44 states: “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

The Indian judiciary in various landmark judgments have clearly expressed that the Indian government should move towards enacting the UCC. While dealing with the subjects of bigamy and personal laws, the Supreme Court in the matter of Sarala Mudgal – 1995, stressed on the need of a UCC. In ABC vs State of Delhi in 2015, the Supreme Court noted that Christian women are “not recognised as natural guardians” of their own children under the Christian law, even though Hindu unmarried women are the “natural guardians” of their child. Due to such inequalities, the Supreme Court had observed that the UCC “remains an unaddressed constitutional expectation”. Such and in numerous other judgments, the judiciary has expressed its views in support of a UCC for our nation as envisaged in the Constitution of India.

The UCC would include the establishment of a common set of laws for marriage, divorce, adoption and inheritance that would be applicable to all citizens. The UCC will empower women and promote gender equality. Personal laws that discriminate against women and perpetuate patriarchal norms will be done away with the help of a uniform legal framework. The UCC will eliminate the disparities and inconsistencies that currently exist in personal laws. The existence of multiple personal laws makes legal processes complicated and time-consuming, especially in cases involving inter-caste marriages or divorce proceedings. A UCC would simplify these processes by providing one set of uniform laws applicable to all citizens. The implications of implementing the UCC would be far-reaching. It would lead to a significant transformation in the legal landscape of India, ensuring equal rights and opportunities for all citizens.

The concept of UCC is not unique to India. Countries like France, Turkey, Brazil and Tunisia have adopted their own UCCs. Indonesia, Algeria, Morocco and many others are already advanced towards implementing UCC. Even though the subject may be controversial, the UCC holds immense significance for India in terms of promoting equality, social justice and national integration. The way to proceed ahead shall require the Indian lawmakers to strike a balance between various delicate issues and garner a very broad social consensus, making political stakeholders leave aside their differences and putting the national interests in the forefront. 

A healthy debate is the need of the hour. Instead of only asking why now, the stakeholder should also ask why not now? 

—The writer is an advocate, Bombay High Court and the Supreme Court, and founder of law firm Satya Muley & Co

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