By CBP Srivastava, President, Centre for Applied Research in Governance (CARG), Delhi
In a democratic, constitutionalist, and enlightened constitution like ours, the state is obliged to treat its citizens equally, irrespective of religion, race, caste, sex, etc., in order to ensure that all citizens get uniform rights. However, whether such a uniformity is to be provided in personal matters has been a matter of debate. It is pertinent that a diverse and plural socio-cultural setting certainly requires personal laws for different groups and communities. Personal laws do play a very critical role in making communities participate in the politico-socio-cultural milieu, but they must be in conformity with the Constitution so that cross-cultural barriers do not become impediments to national integration.
Thus, a participatory and democratic approach has also been constitutionally provided. The core value of tolerance may be secured and sustained only when every group or community is able to protect its own specific cultural identity. This becomes highly important considering the Census 2011 data showing that there are over 2,000 ethnic groups residing in India. Protection of culture is possible only when personal laws for every community get recognition; this may also serve as the bedrock of national integration. Probably this has been one of the major bottlenecks for the state in implementing the provision of a Uniform Civil Code (UCC) even after six decades of independence. However, it is also a fact that diversity in personal laws has proved to be an antithesis to uniformity.
When Article 1 of the Constitution of India writes, “India, that is, Bharat shall be a Union of States,” in fact, it refers to two different connotations. While ‘India’ reflects politico-diplomatic unity, ‘Bharat’ signifies India’s diverse but composite culture based on the core value of tolerance. To be more appropriate, it may be said that it is the Union which shall be responsible for not only organizing the states but also for taking decisions in the context of foreign affairs. On the other hand, as a Union of States, it signifies that despite states having their own specific cultures, it is ultimately the culture of India. Hence, Article 1 itself lays the foundation of unity and integrity in the Constitution. Moreover, India’s political design also signifies a decentralized form of governance in which the Union shall serve as the allocator of resources, whereas the states shall be the distributors.
Constitutionalism in India
Being a unitary or parliamentary federation, India practices both the principles of ‘fusion of powers’ (the phrase ‘fusion of powers’ is believed to have been used for the first time by Walter Bagehot; in the Indian Constitution, it finds its expression in Article 75(3) in the form of collective responsibility of the Council of Ministers to the Lok Sabha) between the Executive and Legislature, and ‘separation of powers’ with two different approaches: first, the non-interventional approach to the powers to be exercised by the legislature, executive, and judiciary; and second, the distributional approach to divide the law-making powers between the Union and states. However, it follows a check-and-balance model to effectively institutionalize and ensure independent centers of decision-making. This necessitates the installation of the philosophical concept of constitutionalism for the protection of fundamental rights as enshrined in Part III of the Constitution of India and for limiting the state to check any possible arbitrary exercise of powers.
To preserve the basic freedoms of the individual and to maintain his dignity, the constitution should be permeated with constitutionalism. The Supreme Court in L.R. Coelho v. Union of India (AIR 2007 SC 861) has opined that the principle of constitutionalism is now a legal principle which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based. In this sense, constitutionalism is a natural corollary to governance in India and has been established through the rule of law.
Understanding the Uniform Civil Code
Article 44 of the Constitution of India writes: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” A civil code refers to laws that deal with civil matters like marriage, divorce, adoption, succession, and inheritance.
The basic idea of proposing a Uniform Civil Code was to separate religion from personal laws and also from social relations or from the rights of parties as regards inheritance or succession. Thus, the proposed code believes in unifying and consolidating the nation by every means without interfering with religious practices. Moreover, a common code will help the cause of national integration by removing the contradictions based on ideologies.
So far as the right to religious freedom under Article 25 is concerned, it clearly mentions that such a right is available to all persons equally and is based on the principle of religious tolerance, which is also the foundation of secularism in India. (Barry Kosmin classifies secularism into two categories: Hard, i.e., complete separation of religion and state, and Soft, i.e., religious tolerance. The Indian Constitution incorporates soft secularism.) It is also a fact that religion should be confined to regulating personal lives only and should not interfere in one’s public life. There lies the importance of a duty-bound approach or a post-democratic approach to practice and understand one’s own religion.
Presently, such matters are generally governed by personal laws in India, which has a multiplicity of such laws. Some of the important personal laws practiced in India include the Hindu Marriage Act, 1955, Indian Divorce Act, 1869, Christian Marriage Act, 1872, Indian Succession Act, 1925, and Parsi Marriage and Divorce Act, 1936. The issue of a uniform civil code had become debatable in the Constituent Assembly itself, and amendments were moved to protect the personal law of any group, community, or section of the people. There was an objection that such a code would infringe the right to freedom of religion as enshrined in Article 25 of the Constitution. Further, it might amount to tyranny to the minorities. (Note: Goa is the only state in India which has a uniform civil code—the Goa Family Law, which is a set of civil laws, originally the Portuguese Civil Code, continued to be implemented after its annexation in 1961. However, the same article also guarantees the right of members of the Sikh faith to bear a Kirpan.)
Judicial Approach to the Uniform Civil Code
The issue of a uniform civil code has emerged into India’s political discourse mainly due to the recent debates on triple talaq and polygamy, claiming that such practices violate the rights of women and amount to discrimination. Hence, the supporters of the Code claim that a common legal code would ensure the strengthening of the principles of equality and liberty in India. However, the All India Muslim Personal Law Board denies such a notion, saying that the Judiciary or any other agency does not have any right to interfere in their religious affairs or religion.
India needs a uniform civil code primarily for two reasons:
- Secularism & Uniformity: India is a secular democratic republic; hence, it gives the right to freedom of religion to all persons without discrimination. Further, religious and secular activities have been segregated from each other. A common code will ensure the deepening of the core value of secularism in India.
- Gender Justice: To ensure gender justice by protecting the rights of women, especially among minorities. In the last two and a half decades, there have been dramatic changes in attitudes and views in society, which have been essentially guided by market forces and liberal tendencies. This era of liberalism demands the equal participation of all sections of society in the process of development. This goal could be achieved only when the rights of women are well protected.
The Apex Court had directed Parliament to frame a uniform civil code in the Mohd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945) case. According to the Court, a Muslim woman has a right to maintenance from her husband after she is divorced under Section 125 of the Code of Criminal Procedure, 1973. There were serious debates on the decision, and allegations were made that the judicial decision interfered with the personal laws in the code of the Muslim community. Finally, the decision was overturned by the Government of India by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986. (Many historians argue that the Rajiv Gandhi government lost the 1985 elections after it endorsed the Supreme Court’s decision supporting Bano.)
Further, in Mary Roy v. State of Kerala (AIR 1986 SC 1011), the question raised before the Supreme Court was that certain provisions of the Travancore Christian Succession Act, 1916 were unconstitutional under Article 14. The Court ruled that the Travancore Act had been superseded by the Indian Succession Act, 1925. The decision gave a boost to the concept of gender justice.
In Sarla Mudgal v. Union of India (AIR 1995 SC 1531), the Court opined that no community could claim to remain a separate entity on the basis of religion. The Court also held that a uniform civil code and secularism are not antagonistic; rather, they are complementary to each other.
The Supreme Court in S.R. Bommai v. Union of India (AIR 1994 SC 1918) has held that religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the state by law. The provision in Article 25(2) is worth mentioning here, which writes:
“Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practices.”
Thus, marriage, adoption, etc., are secular activities and hence are not opposed to a Uniform Civil Code.
Way Forward
The idea that personal laws of religions should be beyond the scope of judicial review and that they are not subject to the Constitution is inherently abhorrent. Though rights have been granted under personal laws and also in the Constitution—especially the right to freedom of religion under Article 25—they shall not be absolute. Therefore, a constitutionalist approach shall be adopted to regulate them. There shall be a balance between the liberty of the citizens and the authority of the state, which has been the foundational principle of a constitutionalist and enlightened constitution. At the same time, rights and duties shall coalesce to make a unified structure so that the checks and balances system succeeds and is sustained.
However, as the Indian socio-cultural fabric is still religious and conservative, the process of secularization needs to be speeded up so that the modernization of society takes place and religions are rationalized. A crust-building approach needs to be followed by the state, and at the same time, the state also needs to take steps to make people more and more aware of their duties towards national integration. It should also be ensured that constitutional law must override religious laws for the purpose of sustaining the principles of democracy and secularism as well.