It is time for a code that comprehensively alters the law to protect women and children irrespective of religion
The Uniform Civil Code (UCC) generates fear and apprehension in the minds of the minorities. Or, maybe, it is politically organised fear. However, Directive Principles in Article 44 requires the state to endeavour to secure for the citizens of India a UCC. And Artice 37 makes it “fundamental in the governance of the country” and a “duty of the state to apply these principles in making laws”.
There was considerable controversy in the Constituent Assembly as regards the UCC. The Muslim members were the only minorities who objected to draft Article 35 (now Article 44). Mohammad Ismail Sahib, Naziruddin Ahmed, Mahmood Ali Baig, B Pocker, and Hussain Imam objected as they thought that their personal laws were ancient and part of their religion based on the Holy Quran and Sharia. The worry was mainly on account of marriage and inheritance which according to them were hitherto being governed by their personal law. Mahmood Ali said marriage was a contract enjoined on the Mussalmans by the Quran. These members wanted the ‘Civil Code’ to exclude personal law. Pocker asserted that the UCC would conflict with their Fundamental Rights in Article 19 (Draft Constitution included religious rights in Article 19, now in Articles 25 and 26).He termed Article 44 as tyrannical and undemocratic. Hussain Imam invoked the poor conditions of the Assam tribes and lack of uniform development and sought postponement until India was sufficiently developed.
KM Munshi, Alladi Krishnaswami Ayyar and Dr BR Ambedkar responded by saying that Article19 permitted restrictions by laws relating to secular activities which may be associated with religious practices. They pointed out that Turkey, Egypt and even European countries do not permit rights to Muslims to govern the secular matters by personal laws and up to 1937 the North West Frontier Province was not subject to the Sharia law. Even in United Provinces, Central Provinces and Bombay, Muslims were to a large extent governed by Hindu law in matter of succession. In Malabar, the Marumakkathyeveryam law governed both Hindus and Muslims alike. They questioned the underpinning of immutability and sacrosanctity being invoked by the Muslim members.
Dr Ambedkar poignantly stated that earlier criminal and contract laws were governed by personal laws but the British introduced uniform codes and the Muslims accepted. There already was uniformity of laws in several matters; so why should there be objection to the covering of the “little corner” of marriage and succession that remained through a parliament-made UCC? Munshi said equality of women would not be possible if personal laws were permitted. They felt that the UCC was essential for national harmony and strong and consolidated nation [pg. 540-552, CAD Vol.7]. With this Article 35 (now Article 44) was adopted.
Articles 25 and 26 confer the right to religion and religious practices. As early as 1954 the supreme court in the Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt case held that secular matters associated with the religion were not covered by the fundamental right to religion, though religion would embrace not only belief but also rituals, observances, ceremonies and modes of worship. Article 25 declares that the right to practise and propagate religion is subject not only to laws regulating public order, morality, and health but also to laws regulating any economic, financial, political “or other secular activity”. The Constitution is therefore neutral to religion but enables regulation of secular aspects or matters associated with religion in the interest of national integrity. Therefore, secular matters associated with the various religions in India can be considered for providing uniformity. However, the dividing line often gets blurred giving rise to raging debate about interference with intrinsic part of the religious rights constitutionally guaranteed.
The real issue is about the content of the UCC. It is a civil code and not a religious code. The ‘civil’ in the UCC indicates that it would not cover that which is comprised in the expression “matters of religion”. The UCC does not contemplate uniformity of religion and banishment of all religions other than Hinduism. Secularism is a basic feature of the Constitution and it stands against the creation of a monotheistic state. As early as 1644 Roger Williams, founder of the first Baptist Church in America, wrote about “A hedge or wall of separation between the garden of the church and the wilderness of the world”. Thomas Jefferson echoed this phrase. This reverberated in several judgments of the US supreme court. Our founding fathers too adopted this principle of separation of the state from religion. But does ‘religion’ have the elasticity to envelope ‘personal law’ relating to marriage and succession? Answer given by the Constituent Assembly was “no”. Marriage, divorce, maintenance, adoption and inheritance are all secular matters and could be regulated by parliament. In the Shirur Mutt case the supreme court upheld the formation of a board by law to supervise administration of secular affairs of a temple so as to prevent mismanagement. A fortiori, marriage and succession could not be considered intrinsic parts of religion though some rituals in marriage may be prescribed by religion.
Marriage and succession largely impact the women and the girl child unequally and discriminatingly in all religions. Article 15(4) empowers the state to make special provisions for women and children. The UCC would go a long way in curing this radical evil. Religion-inspired deviation from this need for uniformity is against social justice and fundamental rights of women and children. The state clearly fumbled when it reversed the judgment in the Shah Bano case.
In seeking uniformity of ‘civil’ the UCC ought not to ride roughshod over linguistic and cultural diversity or the different ways of life founded on people’s choice and autonomy radiated by personal liberty. Article 21 represents a great concord which the UCC must respect if it is to achieve its objective of bringing about greater national cohesiveness and stronger national integrity. The UCC must look at that civil code which eliminates all subjugation and all negatives or what philosopher Immanuel Kant calls “radical evils” which impede social justice, equality, liberty and fraternity with dignity.
Imagine the Himalaya having only deodars or only pines. How monotonous that would be. Its beauty lies in the variegated variety of its flora and fauna, its snow and rivers, its people, languages and cultures – the Himachalis, the Kashmiris, the Ladakhis, the Garhwalis, the Kumaonis, the Sikkimese, and other north-easterners. Each peak of the Himalayas has a charm of its own and in their togetherness lies the beauty. Thus the UCC should attempt at bringing about uniformity of the ‘civil’ while preserving the diverse ways of life. The UCC should integrate, assimilate and syncretise the good in all the ways of life that thrive in Mother India.
The mother’s spirit in Rabindra Nath Tagore’s ‘Gora’, which makes no distinction based on caste and religion and which avoids the disgust that blocks equal political respect should guide the evolution of the UCC. The UCC should keep the issues which were debated in the Constituent Assembly in view. Marriage and succession are the domains where uniformity is desired for all. It would cover divorce, maintenance, adoption, inheritance, and the like. It’s time we have it. However, to avoid excessiveness, rituals could be allowed as per religious faith.
A question is raised: Why raise the issue of UCC now? Some ask: There are issues of atrocities against women and girl children among Hindus too; so why focus only on discrimination against Muslim women? As to the first, more pertinently, one would ask if not after 70 years of independence, then when? During this period, bigamy was abolished for Hindus in 1956 but polygamy continued for Muslims. Adoption and maintenance laws were strengthened for Hindus but Muslims were left out. Succession laws have been rightly changed to give equal rights to women for Hindus but Muslim law was left untouched. It is time for a UCC which comprehensively alters the law to protect women and children irrespective of religion. n
Dwivedi is a senior advocate, supreme court.
(The article appears in October 15, 2018 edition)