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                                         Uniform Civil Code: A Delicate Idea

                                                                                               Aadisha Dhaliwal*

Introduction

Article 44 of the Indian Constitution introduces the concept of The Uniform Civil Code. It asks the State to strive for implementation of consistent laws pertaining to personal matters like marriage, inheritance, divorce, adoption etc. This call for uniformity comes in a nation marked by uncountable religious beliefs, where a move of even a district to another could greet one with a cultural shock and where a fundamental characteristic is the cornucopia of diversity.

This essay aims at understanding the constitutional debate regarding the application of Article 44 by studying its history, outlining its stakeholders, discussing its pros and cons and finally makes way to the concluding remarks.

The questions entertained in this essay are as follows:

1.      What was the need to insert the provision of a Uniform Civil Code in the Constitution, particularly in Part 4?

2.      How does this debate become a sub-topic to the concept of inconsistencies between DPSPs and fundamental rights?

3.      Lastly, an important question that is also an extension of the first one is whether this need felt by the Constituent Assembly to introduce UCC, is still relevant?

The Importance of Directive Principles of State Policy

To begin the deconstruction of the massive UCC debate we shall move to its place in The Indian Constitution which is, as mentioned before, Article 44- a part of the DPSPs.

DPSPs are essentially positive rights that put an obligation on the State to do something for the citizens.

However, it must be noted that DPSPs are not justiciable.

Part IV of the Constitution, which consists of the DPSPs, commences with Article 37. It states that:

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

A rudimentary question regarding the importance of ‘unenforceable” laws comes to the mind after reading this Article 37.

Critics of the non-justiciable Directive Principles viewed them as either redundant or requiring greater enforceability mechanisms; many others in the Constituent Assembly recognised the importance of Part IV as it was proposed by the Drafting Committee. Although lacking binding force, it was argued, the Directive Principles still represented the ‘essence of this constitution’. Members of the assembly emphasised the educational role of the Directives, which, they believed, gave India a guiding vision: ‘They give us target, they place before us our aim and we shall do all that we can to have this aim satisfied.’[1]

Through case laws, the method of interpreting DPSPs has changed. Initially, DPSPs were considered a moribund part of the Constitution and now they are viewed as complementary to the fundamental rights. Landmark cases in this context, such as the Re Kerala Education Bill case[2] introduced the Doctrine of Harmonious Construction. According to this doctrine, fundamental rights and DPSPs must be interpreted in a way that neither of them are either injured or used in an extremist method which puts them on opposing sides. This opens the hallowed ground for welfare legislation, application of the principle of equity, natural justice, etc.

However, it is pertinent to mention the example of the Right to Education to highlight the pliable line of distinction between the fundamental rights and the DPSPs. The right to education moved from the Directive Principles to the Fundamental Rights, becoming Article 21A via a Constitutional amendment at the suggestion of the Courts. This suggests the inherent fluidity of the distinction, and lends support to the proposition that, ultimately, the distinction is purely contingent and historical.[3]

So, what exactly led the Constituent Assembly to categorise some rights as justiciable and others as non-justiciable?

In an argument given by Shri M. Ananthasayanam Ayyangar during the Constituent Assembly debates on 19th November, 1948, one of the reasons cited for declaration of DPSPs as non-justiciable is the sheer uncertainty of being able to implement these directives.

He contended that creating fundamental rights out of idealistic policies would lead to exorbitant burden on the nascent government of a newly independent India as well as to an increase in violation of rights.

Instead, future governments must be given the option to turn DPSPs into being justiciable through legislative action on their own volition, as the country develops and prospers.

In the same context, the founding fathers of the Irish Constituion (from which India borrowed the concept of DPSPs) state that “They are not to be determined by the courts for this reason-that it is the Legislature that must determine how far it can go from time to time, in the set of circumstances, in trying to secure these ideals and aims and objectives.”

Secondly, the reason for not declaring DPSPs as enforceable is possibility of stringent judicial measures in face of legislative actions. Chinnappa notes that the nonjusticiability of DPSP do not preclude courts to consider them in their interpretation of the Constitution and laws but limits their power to “issue directions to the parliament and the legislature of the states to make laws”.

If the DPSPs were justiciable, it would lead to the breakdown of legislative mechanisms.

These two factors can validly explain the placement of the UCC provision in the Indian Constitution.

Despite extensive debate, the framers of our Constitution were unable to reach a consensus regarding the UCC provision. Originally intended to be a part of fundamental rights, the pioneering lawmakers ultimately compromised, leading to the placement of the UCC under Part IV.

The period of time surrounding independence had elements of communal volatility. The country had witnessed a partition based on religion, which also led TO violence based on the same. At that time, the Muslim League had already made claims that the Congress intended to turn India into a “Hindu nation’ disregarding minorities.

In such a situation, the Assembly deemed fit the placement of the UCC under Part IV, hoping that in the future, when the fire of hatred between the religious communities had extinguished, such uniformity could be achieved.

They placed the UCC provision under DPSPs in hopes that it will address social inequality.

The Stakeholders

Each and every issue that can be discussed between members of civil society has certain stakeholders. Each and every event sparking disagreement does so because it affects humanity and its values.

In this debate, the nation, in its entirety, is a stakeholder. The UCC, by bringing under its ambit personal laws, affects religions, cultures, values, traditions- all of which have helped in pulling man out of primitive ages and into civility, giving each man a unique identity and a sense of belonging.

The fact remains that India is far from a homogenous nation. Diversity oozes out of its gullies and manifests itself in beautiful acts of unity and not-so-beautiful events of communal controversies.

The debate boils down to secularism versus civil code.

It becomes a sub-topic of the larger issue of inconsistencies between DPSPs and fundamental rights as it contends rights enshrined under Article 25 and 26, namely Freedom of conscience and free profession, practice and propagation of religion, and Freedom to manage religious affairs against the goal mentioned under Article 44.

Now let us examine both the sides.

The proponents of the Uniform Civil Code

In the present times, the UCC debate has garnered attention owing to BJP’s pitch demandING for it at a Bhopal rally ahead of the 2024 polls. This pitch finds support in recent judgements by the Supreme Court in favour of the UCC. In the 1985 case of  Mohammad Ahmed Khan v. Shah Bano Begum regarding the right of Muslim women to claim maintenance, the then Chief Justice of India Y.V. Chandrachud observed that a common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.

The second time the SC supported the UCC was in the case of Sarla Mudgal v. Union of India where the question of whether a man married under Hindu Law could solemnise a second marriage by embracing Islam. Here, Justice Kuldip Singh opined that “Where more than 80 percent 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 the 'uniform civil code' for all the citizens in the territory of India.”

Lastly, in John Vallamattom v. Union of India involving the Indian Succession Act, Chief Justice Khare stated that “We would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regrets 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.”

These arguments promoting the notion of ‘one nation, one law’ basically state that by removing disparities or conflicting between various laws the UCC will not only make administration of justice easier but also promote national integration as being governed by a single codified law will help people feel more united.

Secondly, it is contended that the UCC will do away with gender discriminatory laws hidden in personal laws of different religions. Hindu women are entitled to equal share of property but Muslim women shall get half the property as compared to their male counterparts. Until the Shah Bano case, Muslim women did not have the right to maintenance. The proponents of UCC ask how the removal of such gender injustice and subjugation of women harms the culture of a community. They argue that introduction of the UCC does not mean the advent of a state religion as it does not impose any beliefs on the people, rather simply tries to remove practices that clearly violate Article 14 and 21 of the Indian Constitution. The UCC does not govern whether a marriage shall be a sacrament coming into existence after completion of seven vows or whether it should be treated as a contract. However, it springs into action when discriminatory practices are justified in the name of religion. It simply makes sure that the civilised treatment of individuals is not marred in the name of God. The UCC does not interfere with core values of a religion but simply does away with such extensions of religious belief that harm basic human rights.

An example of this is the abolishment of untouchability. In the orthodox Hindu society, caste system was an inherent characteristic governing everything from what profession a person can practice to what clothes they shall wear. The removal of this heinous practice definitely did not harm the culture of the Hindus, rather provided a chance for upliftment of the downtrodden classes.

In the same context, B.R. Ambedkar stated during the Constituent Assembly Debates-

 "I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights.”
Thus, the UCC becomes a path to gender justice and social equality in the society.

The opposition to the UCC

The primary contention of those opposing the UCC is that it interferes with Articles 25 and 26 of the Indian Constituion. It can be said that they view religious practices as an absolute right. According to them, the UCC will lead to corrosion of unique culture of various religions. The Muslim Law Board cited the example of the ban on wearing hijab to emphasise the point that interference of State (or judiciary) in the realm of religion could lead to accepted religious norms being harmed.

The second question is whether the UCC could lead to mass application of the Hindu Personal Laws. This is more of a political issue than a legal question and is only mentioned as a factual description of the debate surrounding the UCC provision.

The third argument is related to Scheduled tribes, especially of Nagaland. Neiphiu Rio, the CM of Nagaland moved a resolution citing Article 371(A), which protects laws of the state to be changed by the Central Legislative Assembly, unless the State Assembly assents. The implementation of the UCC will go against Article 371 (A).

Conclusion

Both sides of this debate use a different interpretation of the UCC provision. The proponents pull a balancing act to support the UCC. They believe that cultures can and should be modified to fit basic human rights. On the other hand, the opposition operated from a place of fear is subjugation of minorities in case a uniform law regarding personal matters is implemented.

It is true that the need that the Constituent Assembly felt, during the early days of independence, is still very much relevant. Gender issues and hindrances to social equality are still prevalent in society.

The fight is between equality and right to practice religion. People participating in this debate come from different ideological backgrounds. Some believe that the word of god supersedes human rights and others believe the opposite. Balance and compromise are the laws of nature.

Proponents believe that the implementation of the UCC through which different people can freely practice and profess the core values of their religion all the while recognising equality is the ideal implementation of the law.

This would require a fundamental change in the perception of various people and more importantly, a trust in the government to delicately deliver this provision into ground realities.

This interpretation allows for co-existence of Article 25 and 26 with Article 14.

If the ideal society is to be achieved the genuine fears of the opposition need to be assuaged.

Partly, the solution lies in clearly demarking the reaches of the UCC so as to not indulge with provisions such as Article 371 (A), otherwise, it could lead to chaos.

The idea is not awry but too delicate for such a diverse society.

 

Student of  B.A,LL.B (Honours ) ( 1ST YEAR)  National Law University, Jodhpur





[1] The Indian Founding: A Comparative Perspective. / Lerner, Hanna.
The Oxford Handbook of the Indian Constitution. ed. / Sujit Choudhry; Madhav Khosla; Pratap Bhanu Mehta. Oxford University Press, 2016.

Research output: Chapter in Book/Report/Conference proceeding › Chapter › peer-review

 

[2] 1959 1 SCR 995

[3] Directive Principles of State Policy: An analytical approach, Gautam Bhatia, Indian Constitutional Law and Philosophy

 

 

 

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