This Article is written by Priya Singh, a student at Army Law College, Pune
The implementation of a Uniform Civil Code has been an age-old debate for India, and the same has been reiterated in a recent judgement pronounced in The Delhi High Court, where Justice Pratibha M Singh urged the Union law ministry to act upon the need for a Uniform Civil Code. The proposal was made to cope with the legal complexities that arise due to the ever-evolving nature of society. The concept of a Uniform Civil Code refers to the replacement of the existing personal laws with a standard code that all the citizens of the country must follow. A Uniform Civil Code has been empathised upon by Article 44 of the Constitution as:
The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
DOCTRINE OF SEVERABILITY
Directive Principles of State policy aren’t enforceable, and Article 44 cannot be enforced either since it serves as a mere directive. Fundamental Rights have an overriding effect over the Directive Principles of State Policy. Further, in accordance with the doctrine of severability, Article 13(2) states:
The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
The objective of Article 13(2) is to secure the paramountcy of the Constitution, especially in context to fundamental rights. Equal treatment before the law is guaranteed as a fundamental right under Article 14 but Part III of the Indian Constitution is not enforceable against personal laws as the personal laws of Hindus, Muslims and Christians are excluded from the definition of ‘law’ for the purpose of Article 13.
In India the right to freedom of religion has been given under Article 25(1) as:
- Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
It is a fundamental right guaranteed to the citizens and foreigners living in India and is protected by Art 13(2). So, any law that infringes the right to freedom of religion shall be struck down.
Secularism has always been a crucial facet of the Indian Constitution; it was added to the preamble by the 42nd Constitutional Amendment in 1976. Since then, innumerable attempts have been made by the court to understand the scope and application of secularism for it to complement the range of religious diversities in India. To quote Mahatma Gandhi, “The real meaning of secularism is Sarva Dharma Sambhav meaning equal treatment and respect for all religions.” But by the very proposal of a Uniform Civil Code, it is implied that we have understood secularism to be Sarva Dharma Abhav. This means negation of all religions. A better understanding of secularism in the Indian context can be inferred from the words of Shashi Tharoor, stating, “Western dictionaries define secularism as an absence of religion, but Indian secularism does not mean irreligiousness. It means profusion of religions.”
Secularism is a part of the basic structure of the Indian Constitution and cannot be amended. It refers to knowledge of all religions, respect for all religions and fostering a feeling of respect for them. In order to implement a Uniform Civil Code, the principle of secularism must be obliterated from the Constitution and that is beyond the scope of any amending power conferred. The Parliament is a creation of the Constitution and not vice versa.
FLEXIBILITY OF THE RIGHT TO FREEDOM OF RELIGION
It needs to be realised that the fundamental right to freedom of religion conferred under Part III of the Constitution is not absolute as it enumerates restrictions under Article 25(2) as:
25(2). 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 practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus
These restrictions facilitate flexibility and adaptability of the personal laws towards the evolving society as only the integral practices to the religion are protected by virtue of the doctrine of essentiality as in the case of Shirur Mutt. Therefore, reforms can be brought in the respective personal laws to better fit the present-day societal ideologies. It is an ancient Indian doctrine that the state protects all religions but interferes with none. Religion can be reformed but its essence must be maintained.
APPLICABILITY OF THE UNIFORM CIVIL CODE
Even while approaching this idea independent of its legal frailties, the age-old trend of communalisation of religions in furtherance of political propaganda makes the possibility of a religiously neutral draft of a Uniform Civil Code seem like an extremely distant reality. Taking a recent example of the public response to The Indian Citizenship Act 2019, it is clearly understood that the Indian citizens show no tolerance towards biased laws and such intolerance is further manifested in the form of communal violence resulting in large scale disruption of public peace and tranquillity. In light of this evidence an outbreak of a civil resistance to the draft of the code is not a remote consequence to anticipate and it is the State’s responsibility to secure and protect a social order as enshrined under Art.38(1) of the Constitution.
Despite the kind of column that has been provided for amendments in the personal laws, the judiciary’s requirement for enacting a Uniform Civil Code across citizens of all religions inevitably depicts its reluctance to foster and provide for the harmonious functioning of different religions within the country and this goes against the very spirit of the Indian Constitution.
Any citizen would innately want to pursue his or her religious orientation. This legislation, if enacted, will inescapably go against the people’s wishes, thereby deviating from the principle of by the people, for the people and of the people. This enactment, thus, would be tangent to democracy itself. In the words of B.R. Ambedkar, “Democracy is not merely a form of Government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards our fellow men,” and the act of implementing a Uniform Civil Code is much in contravention of respecting religions and therefore fellow men.
The problem identified by the Delhi High court is the complexities that arise out of inter-religion marriages in today’s society. It must be noted that in order to deal with such complexities, The Special Marriages Act 1954 has already been provided for and also, The Indian Succession Act 1925, which deals explicitly with matters of inheritance and succession arising out of marriages of such a kind. It is understandable that the court is of the view that certain religious philosophies are subjects of gender bias which as a result infringe the fundamental rights of the citizens but, it also needs to be understood that destruction of religious framework and forceful implementation of a common code is a greater violation of the citizen’s fundamental rights.
In addition to the factors mentioned above, the composition of the Indian population cannot be ignored while considering such an implementation. India’s rural population was reported as 65.07% in the year 2020 by the World Bank collection of development, the tribes living in interiors of India live in accordance with their customs untouched by reforms, the literacy rate in India as of 2021 is 74.04%. Pertaining to these infirmities, a quick implementation being secured all through the country is not possible, leaving the code ineffective and loss of people’s confidence in the government.
The demand for a Uniform Civil Code, which the Delhi High Court has made, has failed to recognise the welfare of the sections of the society other than that of the youth, and this itself can be seen as violative of Article 14 of the Constitution since there is no intelligible differentia for this discrimination or nexus for the achievement of the said goal.
Further, these minorities would be reluctant in approaching the court for their grievances, and this will only take from the effectiveness of the legal framework, leaving it highly impaired. A law should be such that it reaches all sections of society equally.
After exploring the legality and the pragmatic stand of the Uniform Civil Code in a country like India that embodies such diversity in religion and customs with sensitive public sentiments towards the same; implementation of a Uniform Civil Code while being cognizant of its effects is like consenting to wreak havoc on both the people and the legal framework of the country. The age-old customs and cultures that constitute the heritage of India would lose value and recognition. Hence, it has been well established that a Uniform Civil code is no solution to the problem identified; however, if sought to will be the starting point of several rebellions that the country is not ready for.