It’s the State’s duty

Saat Phere and the Sacred Fire! Nikah and Nikah Nama!   

Holy Matrimony and the Wedding Vows! Anand Karaj and the Guru Granth Sahib!

Yes! These and the countless other practices of Indian weddings, festivals, rituals, are sacred to the diversity and culture of many-splendoured India.

And no! The Uniform Civil Code (UCC) will not take away any of the above. Nor will it thrust one community’s personal code on the country as a whole. That’s a misconception.

So, what is UCC all about? Why is it viewed with suspicion? Will it encroach upon the citizens’ fundamental right to pursue matters according to their faith? Not at all.

To put it simply, the UCC aims to ensure parity for all citizens in matters of personal laws, such as for marriage, divorce, succession, guardianship, etc. Currently, these laws differ from religion to religion, largely discriminating against women.

Also Read | BJP ally AIADMK not in favour of Uniform Civil Code

The State has a constitutional obligation, consistently endorsed by Supreme Court judgements, to enact the UCC to ensure justice to all citizens; in particular, gender justice.

Let me explain.

Misogyny in Personal Laws

It’s common knowledge that patriarchy and religion commonly go together. Even today, religious laws are skewed against women; particularly in matrimonial and succession matters. For instance, under Section 9 of the Hindu Marriage Act, 1955, which provides for the controversial ‘restitution of conjugal rights’, it is almost always the wife who has to suffer restitution and invasion of privacy. Polygamy, and unilateral divorce by the male, continues under the Muslim Personal Law (Shariat). Till 2001, when the Indian Divorce Act, 1869, was amended, a Christian wife, when filing for divorce, had to prove adultery, combined with cruelty or desertion; whereas the husband could file on the grounds of adultery alone.

The above examples are just illustrative of the ubiquitous unfairness and suffering, prevailing across different faiths. Suffice it to say that it is well-documented that personal laws are stacked against women.

The UCC seeks to filter out the bias and irregularity from personal laws, and provide one fair, secular civil law for all citizens. The Constitution, in Article 44, urges the State to enact the UCC: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Article 25 guarantees religious freedom to all.

“(1) Subject to public order, morality and health and to the other provisions of this Part,” -- all persons are entitled to freely practice their religion.

Now, Article 25 is in Part III of the Constitution. This Part covers the fundamental rights, which are justiciable. The question then arises:

Article 44 is a Directive Principle of State Policy and is non-justiciable. How can it override Article 25, which guarantees religious freedom as a fundamental right? How can the State enact a law which would impinge on the citizens’ fundamental right to freely practice their religion?

In answer, note that there is a caveat to Article 25, and a strikingly important one at that, which would come into play to bring in a UCC.

A studied look at the Article and the caveat leaps up – “subject to… other provisions of this Part.”  

a.    The right to practice religion, is contingent upon other factors -- such as “to other provisions of this Part”.

‘This Part’ refers to Part III of the Constitution, containing the Fundamental Rights. Articles 14, 15, 21 which, among other things, provide for equality, the protection and welfare of women, prohibition of discrimination of any kind, are in Part III. The Right to Live with Dignity is an intrinsic part of the Right to Life, and thus a fundamental right, flowing from Article 21. Any custom negating the fundamental rights has to go.

b.   Additionally, there’s clause 2(b) of Article 25, which allows the State to make any law that provides for social welfare and reform.

Therefore, all are free to follow and practice their religion – unless doing so goes against the other fundamental rights enshrined in Part III. That is the crux of the matter.

Consequently, the stipulations in Article 25, and the curbs on religious freedom, play an important role, with specific regard to negating the many inequalities in the personal/religious laws and enacting a uniform and just civil code, to guarantee fundamental rights.

Constitutional duty

A 7-judge Constitution Bench in Mirzapur reaffirmed the imperative force of the Directive Principles, stating: “It is clear that the Directive Principles form the fundamental feature and the social conscience of the Constitution, and the Constitution enjoins upon the State to implement these Directive Principles.”

The judiciary has reiterated the need for a UCC to remove the injustices in personal laws. In the landmark Shah Bano case (1985), the then Chief Justice Y V Chandrachud voiced his concern, adjuring the State thus: “It is...a matter of regret that Article 44 of our Constitution has remained a dead letter…It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country…”

The 22nd Law Commission of India has initiated a public consultation process on the UCC. Unfortunately, there are discordant voices, mainly from the opposition parties, flatly refusing to engage in this exercise. The Congress, in particular, is unnecessarily strident, forgetting the history of the aforementioned Shah Bano case, where a 62-year-old lady was abandoned by her husband, ousted with her children from the marital home, and forced to move court to plead for maintenance. There are countless such women at the mercy of patriarchal and religious decrees. A UCC, carefully drafted, will benefit all citizens, irrespective of their religion. Political considerations must be put aside. All parties should come on board to help deliver a Uniform Civil Code.

A cautionary note: The BJP-ruled Centre must engage sincerely with all parties, ensure that there’s a robust debate in parliament and, most importantly, enact a UCC through the normal process of legislation. Not through an Ordinance, that too a midnight one!

Chief Justice of India D Y Chandrachud is currently seized of certain petitions pertaining to the injustice to women in personal laws. The senior Justice Chandrachud had expressed distress over the lack of a UCC in the Shah Bano case thus: “…it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable…piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code...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.” 

(The writer is a Bengaluru-based lawyer and writer)