Going by the bulldozer-like push being given to the Constitutional provision for bringing about a Uniform Civil Code and making it applicable throughout the country, it appears that the Narendra Modi government is biting more than what it can chew. Article 44 of the Directive Principles of State Policy mentions the State should endeavour to secure for citizens a Uniform Civil Code (UCC) throughout the territory of India. Part IV of the Constitution deals with the Directive Principles of State Policy, which are no doubt essential to the nation’s governance, but are neither enforceable nor justiciable in a court of law.
The Supreme Court too has mandated UCC in multiple rulings, including the famous Shah Bano case of 1985. In the Sarla Mudgal verdict (1995) and the Paulo Coutinho vs Maria Luize Valentina Fereira Case (2019), the apex court reiterated its stance.
UCC, on the face of it, looks simple as just an idea of having a common code of personal laws for people of all religions. In any such uniform code for a bewilderingly diverse nation like India, complications would come built-in because personal law covers, inter alia, inheritance, marriage, divorce, child custody and alimony. Currently, India’s personal laws are maddeningly complex and varied, with each religion following regulations that have been codified over ages. No wonder, even Dr BR Ambedkar, chief architect of the Constitution, could not have his way in implementing a UCC governing personal law due to opposition from many contemporary leaders.
The 21st Law Commission brought a paper on ‘Reform of Family Law’ in August 2018 in which it stated that UCC was “neither necessary nor desirable at this stage”. “Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation”, the Law Commission stated.
Yet, the Centre has once again brought UCC centre-stage, at a time when people are sensing covert attempts to impose a majoritarian agenda. Already there are green shoots of UCC, with Uttarakhand, Gujarat, and Assam announcing plans to implement it. Back in 1868, Portugal extended its Portuguese Civil Code to Portugal’s overseas provinces which included Goa and the state has been following it since then.
The 22nd Law Commission of India has decided again to solicit views and ideas of the public at large and recognised religious organizations about UCC. This is ostensibly because the Consultation Paper issued by the previous Law Commission on the subject is more than three years old.
The renewed thrust to UCC has drawn flak from various quarters. The All-India Muslim Personal Law Board, listing its studied objections to the proposed legislation, said “majoritarian morality must not supersede personal laws, religious freedom, and minority rights in the name of a code which remains an enigma”. The Board detailed its preliminary objections stating that the content set out in the Law Commission’s notice is “vague, too general, and unclear… The terms for the suggestions to be invited are missing.
It appears that such a large issue has been floated in the public domain to seek a referendum as to whether the reaction of the general public also reaches the Commission in either equally vague terms or in a ‘yes’ or ‘no’,” it said. Mentioning that matters concerning holy Quran and other religious texts fall within Articles 25 and 26 of the Constitution, the Board has said: “National integrity, safety and security and fraternity is best preserved and maintained if we maintain the diversity of our country by permitting minorities and tribal communities to be governed by their own personal laws.”
Member of the Parliamentary Standing Committee on Law and Justice P Wilson expressed his view that UCC will wipe away the unique traditions and cultures of minorities with one personal law. According to him, the present Law Commission is attempting to dilute the findings in the Consultation Paper dated 31.08.2018 of the 21st Law Commission of India which was not in favour of the UCC. “India is a diverse nation, having religious, cultural and linguistic diversity like none other. As per a report, India is home to 398 languages, out of which 387 are actively spoken and 11 are extinct.
Even within Hinduism, there are several sub-cultures, each with their own unique identity, traditions, and customs. If you take one set of personal laws and apply it with brute force to all religions, sub-sects, and denominations, it will destroy their uniqueness and diversity,” he said. Postulating that the proposed UCC may provide for all marriages to be registered before an authority like Registrar, Wilson said that marriage in Christianity was “a sacrament and a facet of religion”. Therefore, if it must be registered before an authority like Registrar, it denigrates and desecrates a holy sacrament.
Opposition parties have questioned the urgency of bringing UCC before the 2024 Lok Sabha polls. Even BJP Member of Parliament Sushil Modi, who chaired the meeting, reportedly suggested keeping tribals of the North-East and other regions out of the purview of UCC.
The Centre has not clarified whether UCC would require even Hindu marriages to be validated by registration. For Hindus, a marriage solemnised in a temple, be it by tying a thaali or circumambulating seven times around sacred fire, is sufficient proof of marriage. So, any UCC that excludes only Hindus from the obligation of registering their marriages will not be acceptable to other communities that have their own way of solemnising marriages. And marriage is just one aspect of personal law.
What about incongruities in other aspects like inheritance, divorce, child custody and alimony? Tribals among Hindus are already opposing UCC. Can the Centre, having burnt its fingers in Manipur, afford to poke its nose in tribal cultures elsewhere across the nation now?
Any loosely constructed or hastily drafted UCC would infringe upon the freedom of religion guaranteed by Article 25 of the Constitution, affecting almost all communities.
