Uniform Civil Code – A Legal Perspective

Article By: Amit Abhyankar

Uniform Civil Code, Common civil code, the words remind more of a political bedlam than a legal question. Utterly unfortunate as the situation is, it demands an immediate attention. The question is a legal question because it is a mandate addressed to the ‘State’ by Art. 44 of the Constitution of India. In India, however, legal questions are often politicized and thereby confused,- particularly when the issue relates to the election prospects of each political party as there is always the luring vote-bank of minorities in sight.

Article 44 of the Constitution pledges for a uniform civil code. It runs as- “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. While many parts of the civil law have already been codified in enactments applicable to the entire population of India, such as the Civil Procedure Code, the Evidence Act, the Transfer of Property Act, and the like, the controversy has arisen in case of unification of personal & family laws of the parties such as marriage, divorce, adoption, wills, intestate succession etc. (The word ‘personal law’ has been clarified in Entry 5 of List III of 7^th Schedule).

It would not be impertinent to observe the circumstances under which the Article was incorporated in our Constitution. A Hindu-Muslim lady ‘Aruna Asaf Ali’ in her book ‘Resurgence of Indian Women’ points out at the background that gave birth to the concept of non-interference in personal laws of minorities. She rightly observes, “…in the early years of freedom, non-interference in personal laws of minority religious communities was understandable; it was designed to assure them, especially the Muslims, that though the sub-continent had been partitioned at the instance of Muslim League, India was not a Hindu State and that the identity of the minorities would be respected. But over the years, political parties have come to treat the minorities as vote-banks to be wooed through their traditional leaders…”

The basic reason for asking a separate nation at the time of independence was that the Muslim League argued that the Muslims do have a separate Personal Law which can be effectively incorporated & implemented in an altogether different nation only. This resulted into deplorable partition of India. Thus, separate personal law was underlying reason behind offering a separate nation. That in turn implies that in the concept of ‘different personal law’ lies the bug of theory of ‘two nations’. The framers of the Constitution had seen this all and had in their minds an urge to not let this happen again. Hence in the Constituent assembly, it was made clear that in a secular nation, personal laws relating to such matters as marriage, succession and inheritance could not depend upon religion, but must rest on the law of the land. A uniform civil code was accordingly necessary for achieving the unity & solidarity of the nation, which was envisaged by the very Preamble to the Constitution.

All these circumstances were, however, forgotten by the national leaders after independence so much so that they even forgot that separatism contained in the theory of personal identity of Muslims was nothing but a relic of the same old ‘two-nation’ theory, which the framers of the Constitution had themselves fought against.

Whether Art. 44 implies one thing or the other is not a thing of interpretation for any scholars of any religion or political dignitaries. It is the Judiciary that has been vested with the sole & final power of interpreting the provisions of the Constitution. So it would be noteworthy to see the stand of the Judiciary on this issue. In the case of Mudgal v. Union of India (1995), which is one of the most recent cases, amongst many others, in this context, the observations of the Honourable Apex Court would prove to be eye-openers to the general public as well as the Government. The Court observed that it was altogether unjustifiable for the Government to discriminate between Hindus & Muslims. Personal Laws of the Hindus relating to marriage, succession and inheritance have sacramental origin similar to those of the Muslims & Christians. Still, replacing the traditional Hindu sacramental personal law, Hindu personal law was codified by various enactments in 1955-56. So why to keep Muslims away from such enactments? The Court added that “there is no justification to ignore Art. 44 in deference to Muslim sentiments in particular”.

It goes further to opine that-

“Art. 44 is based on the concept that there is no necessary connection between religion & personal law in a civilized society. Article 25 guarantees religious freedom whereas Art. 44 seeks to divest religion from social relations and personal law. Religious practices violative of human rights & dignity and sacerdotal suffocation of essentially civil & material freedoms are not autonomy but oppression. A unified code is imperative both for protection of the oppressed & promotion of national unity & solidarity. In the Indian Republic there was to be only one Nation-Indian Nation-and no community could claim to remain a separate entity on the basis of religion”.

If we now examine all the arguments advanced against the implementation of Uniform Civil Code, it will be evident that none of these hold water. The first such contention is that Art. 44 of the Constitution should be repealed because it hurts the sentiments of Muslims, or at least, the Muslims should be exempted from its operation, to be governed exclusively by the Shariyat as their personal law. This demand, however, seeks to put the clock back. At the time when the Constitution was framed, all such claims, counter-claims were considered and rejected on the grounds that (a) matters such as marriage, inheritance and the like, falling under the category of ‘personal law’, are secular matters having no essential relation to religion and that (b) without a uniform civil code, inter alia, the people of India belonging to heterogeneous elements, could never be united into a Nation. The provision in Art. 44 is nothing but an implementation of the objective of ‘fraternity, unity and integrity of the Nation’, which is not only enshrined in the Preamble to the Constitution, but also in the Fundamental Duties in Art. 51A(c), (e). To assert in the face of these provisions, that the Muslims should remain a separate entity on the basis of religion is an overt act under S. 2(f)(ii) of the Unlawful Activities (Prevention) Act, 1967. It is a pity that those who are responsible for enforcing the laws in India, do not even think of prosecuting anybody for such offence, either because of ignorance or because of the lure of the ‘vote bank’.

Art. 25 of the Constitution, which prescribes Secularism, implies that all religions shall be equal in the eye of the State and that the followers of every religion shall have the same rights to profess and practice their respective religions. Hence saying that uniform civil code should only be applied to majority of the population and not to any particular religion is not secularism, but naked communalism.

Articles 25-27 guarantee to all citizens, including Muslims freedom to practice & propagate his own religion. However, Articles 25-27 do not provide any protection to the Muslim personal law against Art. 44. Because if that was the intention of the makers of the Constitution, then Art. 44 should have added—‘excepting in respect of Muslims’. As per the rules of interpretation, even a Court has no power to add a word, not to speak of an Exception or Proviso, where the language of a provision is clear & unambiguous. Article 44 is absolutely clear & unambiguous in its every connotation.

Another defense taken against Art. 44 is of Art. 29, which guarantees right as to ‘culture’ and it is contended that personal law forms a part of ‘culture’. The word ‘culture’ is not defined in Art. 29. However, one thing is certain that it has to be read with Article 44 & 51A(f). Firstly, it has to be noted that Articles 25-28 are grouped under the heading ‘freedom of religion’ and thereafter, comes the heading ‘Cultural & Educational rights’ including thereunder Articles 29 & 30. it would follow that the ‘culture’ referred to in Art. 29(1) is something which is not founded on religion and which may belong to any section of the citizens’ which may not be necessarily be a religious minority. Hence, even if it is conceded that Muslim Personal Law is founded on religion it does not follow that it is a part of the ‘culture’ of the Muslims within the meaning of Art. 29(1). Distinction between culture & religion needs to be taken into consideration. The best illustration of this proposition would be a saying of Justice Chagla, – “I am Muslim by religion, but a Hindu by culture”. If this proposition be true, a Muslim’s claim to be governed by a different personal law, alleged to be founded on religion, cannot be defended as a fundamental right under Article 29(1). It would not be out of place here to quote what Justice Chagla has to say regarding Art. 44, “The Constitution was enacted for the whole country, it is binding on the whole country; and every section and community must accept its provisions & its directives including the Art. 44”.

A fear is expressed that if Art. 44 is implemented, it would wash away the separate identity of Minority communities. This fear is totally unfounded as there are Articles 25-27 to protect one’s own religion, religious beliefs & sentiments.

Justice Beg, former Chief Justice of India, during his lecture on ‘Impact of Secularism on Life & Law’, has made remarkable observations in context of present issue. He concludes that questions of personal law, such as marriage or succession, are not matters of religion. It maintains that the very Provision in the Hindu Succession Act, 1956, that it is applied to Buddhists, Jains & Sikhs, but not to Muslims, Christians, Parsis & Jews, is inconsistent with the Directive Principle laid down in Art. 44 of the Constitution.

If we are to compare the status of present controversy in India with other nations, observations of European Chief Justice in a Division Bench of Mauritius (in case of Bhewa v. Govt. of Mauritius), would be noteworthy- “We never had in our country, whether during French or British administration, any personal law in spite of the fact that the major religions of the world have been present here for generations; a uniform civil code has always been in force”.

Thus, the whole nation needs to get out of the controversy surrounding this issue of ‘uniform civil code’. Uniform Civil Code, as dreamed by Art. 44 of the Constitution, is need of the hour. If we are to stand as one nation, if secularism is to be honored & followed in its real sense, there is no alternative to uniform civil code. The next question is in what way we are to implement the same. It is true that a Uniform Civil Code for the whole of India cannot be drafted or brought into force all at once. It should be progressive i.e. to be applied in stages and part by part, having regard to realities.

Preparing a comprehensive code through an expert body like Law Commission in consultation with the Minorities Commission can be looked at as a long term measure. Such code shall have due regard to the modern day concept of human rights of women. Second option is to adopt certain immediate measures which would ‘pave the way’ for a unified civil code. These include-

a) To appoint a Committee to enact a Conversion of Religion Act, to check the abuse of religion by any person, and to make it applicable to every person, whether he is a Hindu, a Muslim, a Christian or the follower of any other religion.

b) Such law may provide that every citizen who changes his religion cannot marry another wife unless he divorces his first wife.

c) Such law may also provide for maintenance, succession etc of the parties concerned in the conversion, to avoid any clash of interest after death.

d) The next stage would be to pinpoint those vulnerable points which call for reforms. These include issues like Triple Talak, Polygamy, lack of dowry prohibition in certain religions (‘dowr’ needs to be distinguished from ‘dowry’), loopholes in the Child Marriage Restraint Act, 1929, no provision for compulsory registration of all marriages (similar provisions are there in countries like Iran, Algeria, Malaysia; then why not in India?). Legislation as regards to all these issues should be aimed at ironing out all the inter-community differences.

Thus, the issue under Art. 44 today is not whether the provision under Art. 44 is undesirable but only whether its implementation should be started now. The quotation of Hassan Imam, a member of Constituent Assembly, would be a befitting climax to this long discussion—

“Talk of making India strong; ….it is all right and a very desirable thing to have a uniform law. It is a must thing because otherwise we would be guilty of making a nation within a nation, a community within a community”.