Viewing Uniform Civil Code through a post-democratic prism

In a democratic, constitutionalist and enlightened constitution like ours, the state is obliged to treat its citizens equally.

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 set up certainly requires personal laws for different groups and communities so that the cross-cultural barriers do not become impediments to national integration.

The Constitution of India establishes that ‘India, that is, Bharat shall be a Union of States’, which in fact, refers to two different connotations. While ‘India’ reflects politico-diplomatic aspect, ‘Bharat’ signifies India’s diverse but composite culture which is 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 organising 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.

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 that there are over 2000 ethnic groups residing in India. The 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 to implement 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 have proved to be anti-thesis to uniformity.

Personal laws do play very critical role in making the communities participate in the politico-socio-cultural milieu, but they must be in conformity with the Constitution. Recent debates on personal laws with reference to the issue of ‘triple talaq’ and gender justice have become a matter of serious concern and once again have prompted us to revisit the concept of UCC in the context of constitutionalist and enlightened constitutional system of India. The question is whether constitutional protection given to religious practices as prescribed in personal laws, should extend even to those that are not in compliance with fundamental rights. 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, these 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 authority of the state, which has been the foundational principle of a constitutionalist and enlightened constitution. At the same time, from the viewpoint of post-democratism, rights and duties shall coalesce to make a unified structure so that the check and balance system succeeds and sustained.

Understanding Post-Democratic Approach

A coordinated approach for widening the sociological base of governance across the world essentially demands post-democratism that incorporates sensitivity to duties. While democratic governance focuses primarily on rights with an in-built component of ‘taking’, post-democratism centres around a penchant for ‘giving’. It seeks an alternative approach to development, that is a system which shall be based not merely on rigid rules but also on maximisation of values. In a post-democratic socio-cultural system, rights and duties must coalesce. This contributes to creating a politico-administrative and judicial-legal construct of social and economic justice. This is possible only when a duty-bound approach is adopted and both the citizens and the state consider the changing requirements before taking decisions. The concept assumes greater significance in religiously, linguistically and ethnically diverse society like ours. Definitely, such diversities make the system complex but an understanding of one’s own duties before claiming for rights will emerge as a saviour.

Rights whether granted by the Constitution or, by law, may be personal laws can be protected only when the duties are performed. Among the questions that still divide the philosophers who are concerned with problems about rights, inter alia, include most importantly whether, or to what extent, rights and duties are logically correlative. In case of obligations, it is the state that has to ensure that these obligatory commitments are fulfilled so that rights of diverse nature of the people are well protected and respected. Critically, it is said that duties are morally bound hence cannot be fully executed. However, once codified, duties are transformed into obligations and become legally bound. For instance, the Supreme Court in Minerva Mills Ltd. V. Union of India AIR 1980 SC 1789 has held that the Directive Principles, essentially included as the duties of the state are coordinated with fundamental rights and both constitute the essence of the Constitution of India. The recent passing of a bill on criminalising triple talaq should be viewed from this angle. It may also be considered one more step in making a Uniform Civil Code in India.

A civil code refers to laws that deal with civil matters like marriage, divorce, adoption, succession and inheritance. Presently such matters are generally governed by personal laws in India which has multiplicity of such laws (Some of the important personal laws practised in India include, the Hindu Marriage Act, 1955, Indian Divorce Act, 1869, Christian Marriage Act, 1872, Indian Succession Act, 1925, Parsi Marriage and Divorce Act, 1936 etc.).

The basic idea of proposing a Uniform Civil Code is to separate religion from personal laws and also from social relations or, from 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.

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, divorce, succession, inheritance etc. are secular activities and hence are not opposed to Uniform Civil Code.

The apex court had directed the Parliament to frame a uniform civil code in Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 case. According to the court, a Muslim woman have a right to maintenance from her husband after she is divorced under section 125 of Code of Criminal Procedure, 1973. There were serious debates on the decision and allegations were made that the judicial decision interfered the personal laws of the Muslim community. Finally, the decision was overturned by the Government of India by making a law, the Muslim Women (Right to Protection on Divorce) Act, 1986.

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 SC1531 the court opined that no community could claim to remain a separate entity on the basis of religion. The court also held that the Uniform Civil Code shall be made in a phased manner along with the rationalisation of religions.

The issue of uniform civil code has emerged into India’s political discourse mainly due to the recent debates of triple talaq and polygamy claiming that such practices violate rights of women and it’s a kind of discrimination. Hence, the supporters of the Code claim that a common legal code would ensure strengthening of 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. First, India is a secular democratic republic hence, it gives 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 deepening of the core value of secularism in India.

The second reason is the to ensure gender justice by protecting the rights of women especially among the minorities. In the last two and half decades there has been dramatic changes in the attitudes and views in the society which have been essentially guided by the market forces and liberal tendencies. This era of liberalism demands equal participation of all sections of the society in the process of development. This goal could be achieved only when rights of the women are well protected. However, as the Indian socio-cultural fabric is still religious and conservative the process of secularisation needs to be speeded up so that modernisation of the society takes place and the religions are rationalised. A trust 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 taken care of that constitutional law must override religious laws for the purpose of sustaining the principles of democracy and secularism as well.

(CBP Srivastava is an expert on the Constitution of India. He is President of the Centre for Applied Research in Governance, New Delhi.)

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)