Can there be a constitutional case for the Uniform Civil Code?

As the issue of the Uniform Civil Code (UCC) has been appropriated by communal right wing politics, discussion around it in the public sphere has lost the larger emancipatory intention with which it was discussed and defended by the members of the Drafting Committee in the Constituent Assembly.

Recent advocacy for a ‘secular civil code’ by Prime Minister Narendra Modi in his Independence Day speech has reinvigorated the debate, placing UCC at the forefront of public discourse. Whereas the right wing ruling dispensation sees UCC as a tool to punish Muslim men, the other side has largely only reacted to the arguments made by the ruling dispensation, without delving into the larger case that UCC presents.

This article seeks to take UCC out of the cage of narrow religious politics and set it free into the larger realm of liberating values. It does so by presenting a case for the implementation of UCC by looking into the constitutionality of such a law and checks if UCC is a threat to the cultural plurality of India.

The UCC has had its own share of history in Indian jurisprudence. It was heavily debated in the Constituent Assembly, found mention in reports of Law Commission and has inundated the public sphere in recent times. The Prime Minister batted for the UCC in his recent speech, the Centre has formed a commission to seeks its views on the same, and the Uttarakhand Assembly passed a legislation on UCC.

Like every political principle, this too has its takers and deniers. I belong to the former category and the reasons for it would be highlighted in the following arguments. Certain assumptions have been made in order to argue in favour of the UCC:

a) UCC would not be an imposition of majoritarian values on other religious, tribal or cultural groups,

b) UCC would be based on the ethos of the Indian Constitution,

c) There would be wider consultation with the stakeholders before framing such law as was done in the case of Hindu Code Bill and

d) UCC would only be a legal procedure for the respite of the oppressed, it would not have totalitarian presence in the lives of people. For example, in case of marriage, UCC would not determine who one can or cannot marry, but will only come in the defence of a person aggrieved by the marriage or marital relationship.

Constitutionality of UCC

Let us first delve into the constitutionality of implementing the UCC. Does implementation of UCC abridge the rights to practice and manage one’s own religious affairs as guaranteed under Articles 25 and 26 of the Constitution? A careful reading of Article 25 tells us that freedom to practice one’s religion can be restricted on the grounds of public order, morality, health and can also be subjected to other provisions of Part III, which contains fundamental rights. This effectively means that the implementation of laws like UCC can restrict the rights of a person/group of people to practice their religion in order to give effect to other fundamental rights like the right to equality (Article 14) and the right to live with dignity (Article 21).

What about Article 26, which gives us the right to manage our religious affairs? The Supreme Court in several judicial pronouncements has maintained that any practice that can be related to the secular aspects of a religion, in other words any practice that is not an essential component of a religion, can be restricted or regulated by the legislative or executive arm of the state. Although the ‘essentiality doctrine’ has its own limitations, which are mentioned in the section below, UCC, which aims to manage such practices that are unjust according to the modern constitutional values, would stand the test of constitutionality in a court of law.

State vs Religion

Deniers often argue as to why the state should be made so powerful to interfere in the everyday rituals of the society. At the cost of sliding into whataboutery, why can’t we argue the same about religion, which determines the fundamentals of our everyday lives? At least the principles adopted by the state in a parliamentary democracy would be formulated by deliberations of the rational mind in the house of the people. Not just that, principles followed by the state do not have the touch of infallibility. In a constitutional democracy, it can always be amended as per the need of the time and will of the masses. On the other hand, religious texts and principles derived from it are the infallible diktat, to which the masses, whether they are in agreement with it or not, are subjected to even if the principles do not stand the test of time. And in the end, a law made by Parliament in a constitutional democracy like India can be challenged before the courts, which can strike down the law if it violates citizens’ rights. But who would one afflicted by the religious laws approach – the religious heads? They are instituted not to protect modern political rights of individuals, but to uphold the very religious doctrine which abridges their rights.

And what about religions where the afflicted party in a marriage cannot even plead before the religious heads? In Jewish customary tradition, there is no concept of divorce, as marriage is seen as a sacred relation that cannot be annulled. Therefore, there is neither any customary backing nor a state law to protect the oppressed in a Jewish marital relationship. In such cases, it becomes all the more pertinent for the state to come up with a law which can provide solace to the ones who are subjugated in a marital relationship.

Legal challenge

First, lack of UCC or any such framework puts the courts in a state of confusion whenever they decide on cases that are fundamentally under the jurisdiction of personal/customary/traditional laws (The Shah Bano (1985) and Shayara Bano (2017) cases being the prime examples). Courts, on several occasions, have also been criticised for using the ‘essentiality doctrine’ and assuming the role of a theological authority, an area beyond its competence, in determining what constitutes the tenets of religion while delivering judgments on matters of personal laws. These can precisely be the reasons for the Supreme Court to continuously nag the legislative arm of the government to come up with a uniform legal code on civil matters. It would not only smoothen the justice delivery system, but also inhibit the convolutions of the legal doctrine of the state if tomorrow another religion or sect props up with their own personal, traditional, or customary laws.

Second, the ‘essentiality doctrine’ as a tool to test the basic tenets of a religion is fraught with theoretical challenges. This doctrine effectively locks religion in the cage of history and assumes that the religious belief system is devoid of evolutionary potential. It puts the legal stamp of ‘infallibility’ and ‘finality’ on religious principles. If such is the case, then the court could even rule that the sects of Islam, Christianity or Hinduism do not constitute the essential features of these religions. This sanction of infallibility and assumption by the judiciary of religious belief being untouched by space and time relegates judges to the category of conservative religious pundits who are not ready to modify their beliefs according to the needs of the time.

Third, non-availability of UCC gives sanction to the institutionalisation of a parallel justice delivery system presided over by religious or cultural heads/pundits, and simultaneously elevates these religious pundits to the rank of a judge – something which is not recognised by the Constitution of India. This system also goes against the principles of ‘separation of powers’ and ‘conflict of interest’ as the religious heads presiding over these cases themselves belong to the class of people who either framed these religious laws or has been defending or interpreting it since these laws had been framed. In the modern system of governance which functions on the basis of separation of powers, can one imagine the legislative arm of the state adjudicating on laws that it itself framed?

Cultural plurality

The UCC would not be an attack on the cultural plurality of India. Being a civil and not a criminal code, it does not call for suo motu action by the law enforcement agencies for its violation. People would be free to follow their traditional and religious practices; if there is any case where an individual feels subjugated under those practices, they can seek justice through an established framework in the court of law. UCC would provide this framework and come to the defence of this subjugated person, would treat him/her as equal citizen of the country and reinforce his/her fundamental rights under the broader framework of constitutional morality. Besides, what is the point of maintaining cultural plurality if it is rooted in inequity, injustice, subjugation and is not in consonance with the values of the Indian Constitution?

Lastly, on rhetorical side of the argument, why do the deniers of UCC and champions of the cultural/traditional plurality not demand the state to do away with the four acts that were passed in 1956 and other statutes implemented thereafter to reform the Hindu personal laws? It would not only reinforce the traditional practices of the Hindus, but also enrich the cultural diversity of the country of which the deniers are the proponent of. Certainly, this demand would not be made, and it should not be, as doing so will take India decades back where the civil doctrine of Hindus was based on anything but the ethos of Indian Constitution.

Conclusion

At a time when constitutional morality has been used as the basic principle for functioning of a dignified society, any social practice that runs counter to it in the name of religious or cultural freedom needs to be called out and eventually reformed. In the end, such practices are never about enjoying religious freedom; rather they are more about preserving the dominant patriarchal structure which benefits one section of the society. If it really was about religious freedom, the law board of the Islamic society would want not just their civil cases, but also their criminal cases to be adjudicated according to Shariat law. But they would not, because doing so would also subject men of the community to the harsher punishment based on the eye-for-an-eye principle. As these principles are reformed through modern criminal laws, it is also the time to subject the civil laws of all sections of the society to modern political principles. Why would we want to keep one aspect of our moral principles locked in historical time and protect it from the forces of modernity when we are ready to reap benefits from other ideas which are the result of expansion of our mental horizons beyond the confines of religion?

Nilanshu Kumar is a development professional and an MA Development Studies graduate of TISS, Mumbai.

This article is originally published on https://www.barandbench.com/columns/can-there-be-a-constitutional-case-for-the-uniform-civil-code