This article has been written by Hitul Sehgal.

Introduction

“Wisdom alone can take your firm hand towards a common civil code, a more progressive civil code so that we can achieve more brotherhood, more intimacy.”[1]

 -Justice V.R. Krishna Iyer

The preamble of our constitution guarantees us the liberty of thought, expression, faith, and worship. Throughout our constitutional history, the courts have contemplated, scrutinized and expanded upon the meaning of these words. The importance that our state granted to religion while attempting to remain secular, was perhaps the masterstroke of our lawmakers. It was a justified necessity to unite the myriad groups of people that inhabited our country. It will be a huge error to classify this move as mere appeasement, as it helped forge the unique identity of our nation that balances the separation of religion and state, while at the same time respecting the various religions that are a part of it.

However, balancing these two positions has time and again and proved to be rough terrain, full of unforeseen calamities. The unbelievably complex nature of the thousands of religious practices has resulted in a storm of conflicting legal issues, at the heart of which lies the question of a Uniform Civil Code (UCC). The oft-debated provision enshrined in Article 44 of our constitution that states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India[2]” remains untouched and the position of our Parliament almost unchanged.

What is a Uniform civil code?

In its most rudimentary sense, UCC refers to a unilateral system of civil laws for all citizens of a country. Although this might seem a gross oversimplification, it helps us understand a basic question, that was also alluded to by the father of our constitution Dr. B.R. Ambedkar, in the constituent assembly debates on Article 44[3], that if our country already has a Civil Procedure Code that does apply to all civil matters and extends to all citizens, and there exists a Contract act as well as various other provisions in Civil Law such as the Indian Partnership Act that apply uniformly to all our citizens, where exactly does Article 44 endeavors to provide uniformity? The answer being the kaleidoscopically complex provisions of our family laws, and this is where the debate gets heated. The personal laws of the various communities, whose cultural and religious beliefs our constitution guarantees to protect have been scrutinized, codified and legislated into several detailed and sometimes conflicting enactments. Moreover, even in our modern constitutional democracy, orthodox personal laws that originate from ancient sources like the Manu Smriti or The Holy Qur’an have not entirely lost their validity, and still, exist to provide validation to malignant patriarchal value systems.

Battling Discrimination Through Legal Challenges

 Amendments to Christian Law

One only needs to turn the pages of our constitutional history, and therein he can find a labyrinth of cases that highlight the misogynistic and conservative characteristics of our personal laws. Here the Indian Courts and Law Commission have always proved to be a beacon of light, especially when faced with the challenges of rectifying historically discriminatory provisions such as Section 10 of the Indian Divorce Act[4], which the Parliament amended through the Indian Divorce (Amendment) Act[5], after a string of decisions by the High Courts of Bombay, Calcutta, and Kerala[6]. 

Gender Discrimination under Muslim Law

Perhaps, the most controversial of these challenges was the well-known case of Shah Bano[7] and the ensuing chaos which led to the passing of the ironically titled The Muslim Women (Protection of Rights on Divorce) Act[8], that overruled the judgment. The Supreme Court once again came to the rescue of Muslim women and the dignity of our society through its decision in Danial Latifi,[9] by upholding Muslim women’s right to maintenance after the period of Iddah is over. More recently, in Shayara Bano[10], the Supreme Court once again restored our faith in the ideals of equality and justice that it seeks to uphold by abolishing the highly contentious provision of talaq-e-biddat, paving the way for the Muslim Women (Protection Of Rights On Divorce) Bill, 2019, that criminalizes the practice[11]. An interesting point that emerged in the above case that is worth mentioning here is the Attorney General’s contention that talaq-e-ahasan and talaq-e-hasan, the other two modes of divorce available to Muslim men were also unconstitutional due to their arbitrary and unilateral nature[12]. But even if the arbitrariness is remedied in matters of divorce, the truly controversial provision of polygamy for men would still prevail.

Patriarchy in Hindu Law

Coming to Hindu law, which applies to more than 80% of the country’s population[13], it still continues to have glaringly unequal provisions. For instance, the discriminatory wording of Section 6 of the Hindu Minority and Guardianship Act[14] challenged in Gita Hariharan’s case[15] which gave mothers, a secondary position as guardian. Similarly, until the 2005 amendment[16], the Hindu Succession Act[17] was also filled with various handicaps for women coparceners, and widows who wished to remarry. And while we are still on the issue of marriages, a major handicap in our personal laws is that the registration of marriages is not a mandatory provision under most personal laws. As the law commission judiciously pointed out in its 2017 report[18] that making registration compulsory, “would also aid in eliminating practices such as early and forced marriages. It can be helpful in achieving gender equality and empowering women. (270^th Law Commission of India Report, 2017)”[19]

Miscellaneous inequitable provisions under personal laws

Another serious matter is the unbelievably discombobulating stance of our country on child marriage laws. Even after lengthy pieces of legislation, and acts passed by the Parliament[20], in an effort to eradicate this evil, the real blow has come, once again, in the form of a successful writ petition[21], that finally criminalized intercourse with a minor wife.

Even now we have barely scratched the surface of the problem, there are still a number of inconsistencies that need to be remedied. For example, the adoption laws of our country which vary from religion to religion. Under Hindu law, the adopted child has the same rights as a biological child, but Islamic Law does not even recognize the status of an adopted child. Only through a 2014 judgment[22] of our apex court, Muslims have been granted the right to adopt through the provisions of Juvenile Justice act[23].

Oppositions to a Uniform Code

It would be prejudicial to ignore the contrary view about the UCC. The first opposition comes from religious activist groups, devoted to safeguarding their traditions from invasive law reforms. For the fundamentalists, unifying our personal laws will be a death blow to diversity. But if in the name of culture and custom, all they want is the perpetuation of their hackneyed class traditions of patriarchal dogma, it will perhaps be in the best interest of the principles of equity and justice to do away with such traditions.

The second and more reasonable objection came from the law commission itself, when in its recent report it declared a UCC to be, “neither necessary nor desirable at this stage.” (Consultation Paper on Reform of Family Law, 2018)[24]. Further suggesting, that small amendments, and codification of existing personal laws will be the better way forward. Indeed, the position seems to be the golden mean for two extremely polarizing opinions. The suggestion will definitely preserve the dignity and diversity of our religions, while also changing their more draconian aspects in accordance with the changing status quo. However, the problem with this approach is evident, as these amendments and reforms take years to shape and successfully implement, and while no one is arguing that the change should come with a finger snap, the piecemeal approach does seem to be an elaborate way of saying that the Parliament and Supreme Court should keep following its current one at a time method of correcting injustices.

Constitutionality of a Common Civil Code

Courts and the UCC

The whole Common code conundrum, in the simplest of terms, seems to center around two often conflicting fundamental rights- the Right to Equality[25] and the Right to freedom of religion[26]., both unequivocally inalienable in nature. In Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[27], the question arose about the distinction between religious and secular affairs. The question, in the above context was perhaps best answered in Sarla Mugdal’s case[28], where the honourable court expressly stated that “Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27”[29], while questioning Parliament’s incompetence in implementing a Uniform Civil Code. Two years later, while rejecting the petitions filed under Ahmedabad Women Action Group’s case[30], our apex court clarified that a Uniform Civil code could only be introduced and implemented by the Parliament. The ratio behind the verdict comes from cases like Narasu Appa Mali[31] and Krishna Singh[32]where the courts have held that personal law, which exists through tradition cannot be constitutionally challenged, as it is outside the ambit of Part III our constitution. But only very recently the scales of justice tilted in the favour of transformative constitutionalism when our honourable Judges in their infinite wisdom finally eroded the constraints of this regressive precedent, when they finally allowed women to walk the grounds of Sabrimala.[33] The historical judgment has definitely moved us one step closer towards ending the injustices ingrained in our personal laws.

The Shining Example of Goa

It would be criminal not to mention the example of Goa in a discussion about the UCC, especially in light of the recent Supreme Court judgment[34], in which the court praised the state’s unique position of being the only Indian province with a Uniform personal law, albeit with some concessions. While mentioning the fact that it is the only state where verbal divorce and polygamy cannot be practised by Muslim men the court once again highlighted our Government’s failure of fulfilling the expectations of our founding fathers. But even the Portuguese Civil Code[35] is filled with inconsistencies such as limited polygamy and adultery as a fault ground, available only to men.[36]

Parliament and the Uniform Civil Code

From the above discussion, it becomes conspicuous that not only do our courts ardently support a Uniform code, but they also have time and again called for it to be implemented. But unlike a Fundamental Right, Article 44 is a provision under Directive Principles of State Policy, is non-justiciable in nature.  In John Vallamattom[37], the Supreme Court once again lamented the forgotten wording of Article 44 and asserted its importance in bringing about national integration. 

Unfortunately, the legislature seems to be the sole authority that can make it a reality, and so far, the courts’ wishes have fallen on deaf ears. However, it would be unwise to be utterly pessimistic about its prospects. As mentioned above, the changes the courts and Parliament together have made in the personal laws, have removed various outdated provisions and the existence of acts such as The Dissolution of Muslim Marriages Act, [38] The Muslim Women (Protection Of Rights On Divorce) Act[39], The Prohibition Of Child Marriage Act [40], and the amendments to Indian Divorce Act[41], have had the combined effect of homogenizing our personal laws.  But still our lawmakers have a long way to cover, and several promises to keep.

Given our religiously fueled political climate, it may seem hopeless that the only way to uniform personal laws is through our legislature and our courts can only urge the government for its implementation. So, one might rightfully ask this, historically what has been the stance of our Parliament on committing towards this radical change? The answer would definitely not raise any eyebrows. When the legislature decided to codify existing religious laws, it unwittingly set our country on a course that would have never led to a common civil code. It made the thought of a uniform code seem poisonous, so much so, that in the past when the calls for a uniform civil code arose from various opposition parties, instead of feeling reformatory, their motives felt vindictive and mala fide. In its 2019 manifesto, the BJP government has once again promised to deliver the nation a Uniform Civil Code[42], it is yet to deliver on this promise.

Conclusion

The quest towards a Common Civil Code though incomplete has served as a real test of the true nature of our democracy. Hindered by-laws that reek of appeasement and politicians who owe their entire existence to the cataclysm of religious wars, this quest has been guided by the pole star of our judiciary. The vision of our founding fathers is still an aspiration to be achieved.

A personal law system based on religious principles is unable to function under a secular democracy. It is fundamentally against any notion of a just society, a concept which John Rawls once defined as “In a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”[43] (Rawls, 2005).  One might wonder, for how long the citizens of this country will have to bear the law’s delay and the insolence of political offices, in failing to secure for them the ideals of our own constitution.

Endnotes

[1] ^[1] Iyer, V.R. (1986). Strategy Towards a Uniform Civil Code: Journal of Dharma: Dharmaram Journal of Religions and Philosophies, [online] 11(3), p.226. Available at: http://www.dharmaramjournals.in/ArticleFiles/Strategy%20Towards%20a%20Uniform%20Civil%20Code-V.%20R.%20Krishna%20Iyer.pdf [last seen on 20 Sep. 2019].

[2] Article 44, The Constitution of India, 1950.

[3] See CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII, 23rd November 1948, speech by Dr. B. R. Ambedkar 25, Available at: http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C23111948.pdf.

[4] 1869.

[5] 2001.

[6] See Raj Kumar Gupta v. Barbara Gupta, AIR 1989 Cal 1, Ammini E.J. And Etc. v. Union of India (Uoi) And Ors., AIR 1995 Ker 252 and Mrs. Pragati Varghese And Etc. v. Cyril George Varghese And Etc., AIR 1997 Bom 349.

[7] Mohd. Ahmed Khan v. Shah Bano Begum and Ors, AIR 1985 SC 945.

[8] 1986.

[9] Danial Latifi & Anr v. Union of India, (2001) 7 SCC 740.

[10] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[11] S.4, The Muslim Women (Protection of Rights on Marriage) Act, 2019.

[12] See Shayara Bano v. Union of India, (2017) 9 SCC 1, pg. 119.

[13] Censusindia.gov.in. (2019). Census of India: Religion. [online] Available at: http://censusindia.gov.in/Census_And_You/religion.aspx, last seen on 24 Sep. 2019.

[14] 1956.

[15] Ms. Githa Hariharan & Anr v. Reserve Bank of India, AIR 1999, 2 SCC 228.

[16] The Hindu Succession (Amendment) Act, 2005.

[17] 1956.

[18] 270^th Law Commission of India Report, Government of India, Compulsory Registration of Marriages, available at: http://lawcommissionofindia.nic.in/reports/Report270.pdf, last seen on 24 Sep. 2019.

[19] Ibid. pg. 5-6.

[20] For example, The Child Marriage Restraint Act of 1929, The Prohibition of Child Marriage Act, 2006 and Protection of Children from Sexual Offences Act, 2012.

[21] Independent Thought v. Union of India, 2017 SCC Online SC 1222.

[22] M/S Shabnam Hashmi v. Union of India & Ors., (2014) 4 SCC 1.

[23] 2000

[24] LAW COMMISSION OF INDIA, GOVERNMENT OF INDIA, Consultation Paper on Reform of Family Law, pg. 7, available at: http://www.lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf, last seen on 24 Sep. 2019.

[25] Article 14, The Constitution of India, 1950.

[26] Article 25, The Constitution of India, 1950.

[27] Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and anr. v. the Commissioner, Hindu Religious Endowments, Madras and ors., (1952) IMLJ 557.

[28] Sarla Mudgal, & others. v. Union of India, AIR 1995 SC 1531.

[29] Ibid. pg. 11.

[30] Ahmedabad Women’s Action Group v. Union of India, AIR 1997, 3 SCC 573.

[31] State of Bombay v. Narasu Appa Mali, Air 1952 BOM 84.

[32] Sri Krishna Singh v. Mathura Ahir And Ors., AIR 1982 SC 686.

[33] Indian Young Lawyers Association v. The State of Kerala WRIT PETITION (CIVIL) NO. 373 of 2006 (Supreme Court, 28 September, 2018).

[34] Jose Paulo Coutinho V. Maria Luiza Valentina Pereira & Anr., CIVIL APPEAL NO. 7378 OF 2010 (SUPREME COURT, September 13, 2019).

[35] 1867.

[36] Feminism In India. (2019). Is Goa Civil Code The Answer To India’s Sexist Laws? | Feminism In India. [online] Available at: https://feminisminindia.com/2018/11/09/goa-civil-code/, last seen on 24 Sep. 2019.

[37] John Vallamattom & Anr v. Union of India, Writ Petition (C) No. 242 of 1997 (Supreme Court, 21/07/2003).

[38]1939.

[39] 1986 and 2019.

[40] 2006.

[41] 2001.

[42]BJP Election 2019 Manifesto English. [online] Documentcloud.org. Available at: https://www.documentcloud.org/documents/5798075-Bjp-Election-2019-Manifesto-English.html [Accessed 25 Sep. 2019].

[43] Rawls, J. (2005). A theory of justice. 1st ed. Cambridge, Mass.: Harvard University Press, pp.3-4.

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