Uniform Civil Code: A Constitutional Mandate or a Factional Demand?

I. Introduction

The responsibility to secure a uniform civil code (hereinafter UCC) for all citizens of the country has been bestowed upon the state by the virtue of Article 44 of the Indian constitution³. The article envisages to bring uniformity across matters dealing with personal laws. The debate around the enforcement of UCC is not a new one; it has been thoroughly discussed amongst legal scholars even before the enactment of the Indian constitution. However, the persistent tussle around its enactment has been inconclusive. The controversy between different socio-religious and political groups reached its apogee after the Supreme Court’s judgment in the Shah Bano case.⁴ The debate of implementing UCC was originally backed by the argument of national consolidation. However, when national consolidation could not fetch enough support, UCC was projected from the prism of furthering gender justice and in turn of promoting uniformity of law.

The idea of UCC traces its roots in the concept of a common national identity. K.M. Munshi, while advocating for UCC in the Constituent Assembly observed:⁵

“There are many … important factors, which still offer serious dangers to our national consolidation, and it is very necessary that the whole of our life, so far as it is restricted to secular spheres, must be unified in such a way that as early as possible, we may be able to say, well, we are not merely a nation because we say so, but also in effect, by the way we live, by our personal law, we are a strong and consolidated nation.”

This viewpoint, which was put forward in the constituent assembly plays an important role in constructing an ‘Indian Identity’, but at the same time, it is also important to consider its effect on other identities, such as regional and religious identities, which are the very foundation of grass-roots democracy in India. As observed by Bhikhu Parekh, ‘identity is a product of the conscious and unconscious interaction between the range of alternatives offered by the wider society and our self-understanding.’⁶

II. Manifold religious identities and ucc

India, as a nation is built firmly on the strong foundation of recognized customs consolidated within the ambit of respective personal law of various religions. The Hindus constitute the majority of the Indian population, while religions such as Muslims, Sikhs, Christians, Jains, etc. are in the minority. The constitution of India, in order to safeguard the interests of these minority groups, explicitly prohibits any discrimination based on religion by the virtue of Art. 14 and 15.⁷ Furthermore, Art. 25 declares India as a secular state and Art. 26 provide minorities with the right to freely manage their religious affairs.⁸ The very idea behind laying down these provisions in the constitution and further recognising them as the fundamental rights were to assure the minority groups that they will be treated at par with the majority, and that their distinct religious identity will be protected from being assimilated in the common national identity. It has been observed that the broader sections of the minorities generally lack in establishing a stable ‘cultural structure’, which plays an important role in the development of individual autonomy.⁹ Thus, the individuals belonging to minority groups have to struggle in order to match the social status of individuals from the majority groups.

In a multi-religious society where one group consists of the majority, scholars have often observed that there is an unintentional bias of the institutions towards the individuals belonging to the majority. At the same time, scholars have often shown their concerns with respect to secularism in a multi-religious polity like India. The very idea of the state treating the minorities at par with the majority often comes at the cost of ignoring their differentiated needs. ¹⁰ In India’s case, the idea of attaining UCC reverberate closely with the said scenario, as the idea of attaining a common national identity imposes a threat of assimilation of the identity of minorities in to the nation’s identity, which would instead be a reflection of majority identity. Scholars while advocating for UCC ignore the basic idea on which each religion is formed and further treat arguments put forward in favour of individuals from minorities as the mere hypothesis. This can be understood by observing the impact of the Hindu religion on other minority groups.

There is a visible difference in the religious practises of Sikhs, Jains, Buddhists and Hindus. Despite this fact, they are being considered part of the broader domain of Hindu religion¹¹, which eventually not only undermines the essentials of equality but also overlooks the practical hardships faced by religious minorities. Despite the desperation of factions and a periodic push to enact the UCC, no one has given any model of such code.

While analysing the potential impact of UCC on the minority groups, we also need to look into the contradictions in customs, rituals and traditions within the Hindu community itself.

Local custom and usage prevailing in North-Eastern states of Nagaland, Mizoram, Meghalaya, Arunachal Pradesh and Sikkim are protected under Article 371A¹² by virtue of legislative provisions and judicial decisions. In North Eastern India, we find different local laws and traditions, which co-exist peacefully, and an attempt to bring them under the ambit of UCC may fragmentise the Indian society and tear apart the country’s diverse social fabric.

III. Gender Justice and UCC

Irrespective of their majority or minority status in the socio-political sphere, women as a group have always been marginalized in any society. However, feminist scholars agree with the fact that the degree of discrimination varies owing to their membership in the marginalized social group of any country.¹³ Women belonging to the marginalised groups are often doubly oppressed. Identifying this peculiar status of women, the framers of the Indian constitution specifically prohibited any discrimination on the basis of sex.¹⁴ Simultaneously, the Constitution also empowered the state to make special provisions to uplift the status of women in society. However, these enabling provisions did not prove helpful enough for Indian women in achieving the desired status. The religious groups, particularly Hindus and Muslims used personal laws as a tool to regulate the internal governance of their respective groups, often to the disadvantage of the women.¹⁵ In order to curb this menace, legislative interference was sought and the codification and amendment of personal laws were initiated. However, the ambit of reforms was only successful in giving symbolic effect to women’s rights.

The Hindu socio-political faction, generally call for the implementation of UCC owing to the legal development of Hindu personal laws. They claim that women in Hindu society enjoy equal status with men and to support this claim they take the help of the codification process that was done in relation to Hindu personal laws in the 1950s. According to their views, the legal intervention through the codification of Hindu personal laws has made the Hindu society gender just. However, if we observe closely these claims can be refuted as the legal intervention has by far retained the conservative patriarchal setup¹⁶, and has done only a little good for the women in Hindu society.¹⁷ Werner Menski has rightly observed: “Hindu Law has always been a reflection of the way of life of millions of very diverse people. What was abolished by the formal law was manifestly only a fragment of the field, not the entire social reality of Hindu Law.”¹⁸

Similarly, Muslim law as a whole is not merely a bookish law but a conglomeration of laws from various sources, traditions and practices.¹⁹ Various schools of Muslim laws follow different customs that have been practiced writ large and etched deep into their personal laws; these customs face the risk of becoming obscure by the enactment of UCC. Thus, even if reformation of Muslim laws is done through legal intervention, there is no guarantee that such law should be accepted and practised by the Muslim community.

However, the religious basis of personal laws and freedom to manage religious affairs granted by the Indian Constitution cannot be taken as a defence to deny equal rights to women. Therefore, if looked upon from the perspective of intragroup equality and the issue of gender justice, it seems that the demand for implementation of UCC is, to some extent, justified, but it must contain an exhaustive and friendly implementation process. ²⁰

IV. Thrive for a perfect balance

Recently, the Delhi High Court expressed the need for UCC stating that Article 44 should not remain a ‘mere hope’ as the Indian society is gradually becoming homogenous while traditional barriers are slowly disappearing. However, at this juncture we need to address two relevant questions: will the implementation of a UCC help secure an equal status for women in Indian society? What will be the impact of UCC on the process of national consolidation and unity?

Flavia Agnes observes with respect to the utility of UCC:

“The lessons learnt in the last 60 years are that uniformity has not worked. It has also had a disastrous impact on the rights of Hindu women. Rather than excluding women from the realm of rights, we need to adopt an inclusive approach. So that women at the margins are not deprived of their right to a life with dignity and sustenance by adopting moralistic principles that are alien to the cultural ethos and customary practices.”²¹

The women are in need of an accessible and affordable justice delivery system and inclusive models of development that can help to eliminate their poverty and destitution. This observation gives us an idea that uniformity has not been of much help in uplifting the position of women in the Hindu society, and same can be said to be true for women as a group in the country. With this observation, we can deduce the postulate that a push for the demand of common laws for all is done with an aim to foster the national identity. However, there are only a small fraction of people who demand a common law and forging UCC to obtain Indian identity may add to the discontentment of religious minorities and may result in harming national unity. Such factional demands are not only a threat to the Indian polity but also oppose the essence of constitutionalism by not matching the standards of equality as enshrined in the fundamental rights of the Indian constitution. Many-a-times, the Hon’ble Supreme Court has interpreted Part III and Part IV²² on the touchstones of equality as laid down in the former, clearly prioritising the fundamental rights over DPSP²³. The supreme court of India has gracefully elaborated on the rule of interpretation and how the balance between Part III and Part IV of the Indian constitution needs to be maintained.

In the Minerva Mills case,²⁴ it was observed that:

“India represents a mosaic of humanity consisting of diverse religious, linguistic and caste groups. The rationale behind the insistence on fundamental rights has not yet lost its relevance, alas or not. The Congress session of Karachi adopted in 1931 the resolution on Fundamental Rights as well as on economic and social change.”

Keeping the Indian plurality in mind, the Sapru Committee²⁵ elucidated that Fundamental Rights should serve as a ‘standing warning’. It stated that what the constitution demands and expects is perfect equality between one section of the community and another in the matter of political and civil rights, equality of liberty and security in the enjoyment of the freedom of religion, worship, and the pursuit of the ordinary application of life²⁶. The report called for the Indian constitution to have full religious toleration, including non-interference in religious beliefs, practices and institutions. This again can be linked back to the status of the individual as discussed above and will be hard to attain without the safeguards of equality as guaranteed under the fundamental rights.

The faction that demands enactment of UCC, emphasize that it must be done in order to attain national unity and communal harmony by procuring uniformity of law. However, they fail to explain how such unity will be achieved by imposing a divisive code on an unwilling section of the Indian society? Thus, with respect to the unity of a nation, we can say that it cannot be achieved just by imposing an Act or Code. It can be achieved by providing equal opportunities and justice to all. Uniform Civil Code is more of an instrument for widening the gulf between different communities than a tool for achieving national unity. Uniform law for all persons may be desirable. But its enactment in one go may be counter-productive to the unity of the nation.²⁷

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