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Viability Of The Uniform Civil Code

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This Article is written by Priya Singh, a student at Army Law College, Pune

INTRODUCTION 

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:

  1. 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

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.

CONCLUSION

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. 

Case Summary

SHAYARA BANO V. UNION OF INDIA AND ORS (2017) 9 SCC 1

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This Case Summary is written by Lavanya Ajaykumar Panicker, a student at DY Patil Deemed To Be University School of  Law, Nerul, Navi Mumbai

SYNOPSIS

“The Triple Talaq Bill is not about politics but empowerment and justice for women. This bill is not about any specific religion and community. The bill is about humanity and justice” – Union Law Minister Ravi Shankar Prasad

The whole case commentary of Shayara Bano v. Union of India and Ors is a landmark case examines the case in which a constitutional court overturned a 1,400-year-old tradition with a 3:2 majority. The custom of triple talaq, which allowed a Muslim husband to give his wife an instant and irreparable divorce, was declared unlawful. The current decision takes into account a slew of earlier cases in which this problem has been challenged. However, the constitutional legitimacy of Triple Talaq has never been questioned before a Constitution Bench of five Supreme Court judges. Another unique feature of the whole case was that the minority ruling, in the interest of justice, enjoined the enjoyment of Art. 25 under Art. 142 of the Constitution. Even if the Court was divided on the law, it was adamant about ending the antiquated and disgusting practice that even Islam despises, even though the degree of transformation this ruling would bring about is unknown.

BACKGROUND

“Triple Talaq is not integral to religious practice and violates constitutional morality.”

The Supreme Court’s 5 Judge Bench issued its judgement in the Triple Talaq Case on August 22, 2017, ruling the practice unconstitutional by a 3:2 majority. Shayara Bano’s was Rizwan Ahmed’s wife for 15 years. He divorced her in 2016 by an instantaneous triple talaq called ‘talaq -e biddat’ and was subsequently given a ‘Talaqnama.’ She asked the Supreme Court to uphold three practises talaq-e-biddat, polygamy, and nikah-halala unconstitutional since they contradict Articles 14, 15, 21, and 25 of the Constitution. On February 16, 2017, the Court requested reasoned responses from Shayara Bano, the Union of India, different women’s equality organization, and the All-India Muslim Personal Law Board (AIMPLB) on the issues of talaq-e-bidat, nikah-halala, and polygamy.

FACTS OF THE CASE

“In the name of empowerment, you (the government) have given nothing but a criminal case to women…the aim of the bill is not to empower Muslim women but to penalise Muslim men” -Congress MP Sushmita Dev

Triple Talaq is not accepted by all Muslim schools of thought; only the Hanafi School of Sunni Islam considers it to be “permissible even if immoral.” Sarabai v. Rabaibai, a case decided five years before the Muslim Personal Legislation Sharait Act 1937, found that “it is a good law, but terrible is philosophy.” Justice Krishna Iyer, on the other hand, was the first to express worry about this habit.

Shayara Bano filed a petition with the Supreme Court, asking for a writ pronouncing the divorce void ab initio since it infringed on her constitutional freedoms. As a result, the constitutional legitimacy of Triple Talaq was brought into doubt before a Supreme Court Constitution bench of five judges comprising of Chief Justice JS Khehar, UU Lalit, RF Nariman, Justice Kurian Joseph, and Abdul Nazeer. In two Guwahati High Court judgments, Justice Baharul Islam dismissed the claim that triple talaq was legal even if it was logically sound. Various judgements in favour and against this tradition were issued during the next two decades. One of the most major matters was Shamin Aru v. State of Uttar Pradesh in 2002, which laid forth the requirements for a legitimate talaq. Although it did not explicitly address the triple talaq, it did engage in a discussion over what constitutes a lawful talaq. This case was eventually cited as a binding precedent to establish why triple talaq is unconstitutional.

Finally, in 2015, two supreme court judges acknowledged the need for it when addressing with Hindu women’s equality to coparcenary property and filed a Suo Moto writ suit.

ISSUES RAISED

“Irrespective of faith, women inherently do not want to divorce without a cause. Be it a Christian, Hindu, and Muslim, women mostly want to save their marriage. Men, on the other hand, have been seen to divorce women over most trivial cases. Men cannot be given supreme right to summarily divorce his wife and abandon her.” -BJP MP Meenakshi Lekhi

Here on matter, there are three judgments: Minority Judgments, written by CJI Khehar and J. Nazeer; two Majority Judgments, one written by Kurian J. and the other authored by Nariman Jon on behalf of himself and Lalit J. The issues in the case are laid out in a methodical manner on, but for the purpose of brevity and clarity, we’ll combine them and simplify them to the following:

  1. Whether the practice of talaq-e-bidat (specifically – instantaneous triple talaq) an essential practice of Islam?
  2. Whether the practice of Triple Talaq violates any fundamental right and is in accordance with part III of the constitution of India?
  3. Whether the practice of ‘Triple Talaq’ is protected bb the virtue of Article 25 of the Constitution of India?

FINDINGS AND REASONING

The court said the practice is “unconstitutional”, “arbitrary” and “not part of Islam”.

  • Talaq-e-biddat is an irrevocable way of declaring Talaq or divorce, by either saying it three times in a row or by saying it once and for all, that is I Talaq you irrevocably. This type of Talaq is distinguished by the fact that it takes effect instantly and is irreversible. Furthermore, Triple Talaq can only be used by a husband towards his wife, not the other way around. The Quran condemns the practise of Talaq, but it condemns even more the irreversible and arbitrary form of divorce in which the husband is not required to offer a cause for the divorce and in which the couple is not allowed to reconcile. Furthermore, Justice Kurian J relied on these cases: Shamim Ara, Masroor Ahmed, and Jiauddin Khan v. Anwara Begum by Najarul Islam J in determining that Triple Talaq is unIslamic. The essentiality test identifies if a behaviour is a necessary element of one’s religion. CJI Khehar and Justice Nariman each took a different approach.

CJI Khehar cited the Sardar Syedna Taher Saifuddin Saheb case, which stated that whether a practise is necessary or not must be determined from the perspective of the members of that community, while Nariman J. cited Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, which stated that whether a practise is essential or not must be determined from the perspective of the members of that community. According to this definition, an essential practise is one that is based on the religion’s basic ideas; it is a bedrock upon which the religion’s edifice is constructed, without which the religion’s intrinsic nature would alter. It is a permanent and necessary component of the religion that cannot be removed or added later. As a result, it would be ridiculous to claim that what is immoral in one group is equally important in another.

  • It was underlined that every citizen’s fundamental right to equality, guaranteed by Article 14 of the Constitution, must be construed to include equality among women of diverse religious groups. Gender equality, equity, and justice, it was argued, were ideals that were inherently entwined within the precedents incorporate to everyone. The conferral of socioeconomic status predicated on patriarchal structures, which places womenfolk at the vulnerability of men, cannot be supported within the ambit of Part III of the Constitution’s fundamental rights. Articles 14 and 15 of the Constitution, it was argued, ban sexual discrimination in addition to equality. Discrimination on the basis of sex was said to be specifically forbidden within Article 15. It was argued that a woman’s right to human dignity, social regard, and self-worth were essential aspects of Article 21’s right to life. Gender balance was argued to be a constitutional aim envisaged by the Constitution’s authors. In response to a question on Article 51A(e) of the Constitution, it was stressed out that one of the proclaimed fundamental tasks included in Part IV of the Constitution was to ensure that women were not exposed to disparaging behaviors that harmed their dignity. Gender parity and women’s dignity were emphasised as quasi. It had already been pointed out that women made up half of the country’s population, and that inequity against women must imply broad gender discrimination, and so the practise is in violation of Part III of the constitution.
  • In terms of religious characteristics, Justice Niraman did not agree that it would be protected by Article 25 since it only protects activities that are an important part of the religion, which many academics and commentators on Sharia have stated is not the case. Although analyzing triple talaq, particularly the religious side of the case, Justice Joseph, while agreeing with Justice Niraman, chose a different path to reach the same conclusion. It argued with Justice Niram that courts should not make religious decisions. In fact, Justice Joseph goes so far as to declare that where a private law is ambiguous on a specific subject, it is up to the court to determine what the legislation actually means. As a result, the court in this case must decide what the provided circumstance of the particular practice or custom is because no one else can. He examined the issue entirely from a cultural perspective, ignoring the constitutional component since he believed that only the legal sanity of triple talaq in Muslim personal law remained to be decided.

CONTENTIONS

After examining all of the official testimony, the Supreme Court divided them into two primary issues:

  1. Is instant Triple Talaq a significant holy practice of Islam? and Is instant Triple Talaq an essential religious practice of Islam?
  2. Is Triple Talaq infringing on the Indian Constitution’s Fundamental Rights?

The subject of whether the Triple Talaq is vital to religious practise arose because the Hon’ble Apex Court cannot dispute or modify any religious practise if it is a significant religious practise. So, if the contested activity is not a fundamental religious practise, the Supreme Court can rule on it and either repeal, amend, or construct it.

CRITICAL ANALYSIS

It is “manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”.

The Shayara Bano v. Union of India judicial decision has become a watershed moment in Indian judicial history. Therefore, with this decision, the Supreme Court of India recognised by a majority that, in the event of a disagreement, the basic rights enshrined in the Indian Constitution take precedence over the practices outlined in the Personal Laws. It is critical to understand that the practise of Instant Triple Talaq was not a traditional custom like the other forms of values that have been observed since Islam’s foundation. It was a later addition, resulting from a departure from the original procedures. As a result, the Apex Court’s Hon’ble Judges were correct in declaring this activity to be a non-essential religious practise under Shariat Law.

It is important to highlight that by ruling Talaq-e-Biddat to be illegal, the Hon’ble Apex Court has safeguarded Muslim women’s basic rights who have been subjected to the wrath of this practice. The country was able to rid itself of yet another societal problem as a result of this ruling.

However, the fact that cases of Triple Talaq have been reported even after this ruling demonstrates a lack of legal understanding among the general population. As a result, once a judgement is rendered, legal knowledge about it should be widely disseminated, and individuals should be made aware of the consequences of failing to comply with the decision. Everyone should be aware of their rights, as well as their obligations and duties.

FINAL VERDICT

Eventually, the Hon’ble Supreme Court, by a 3:2 majority, ruled the practise of Instant Triple Talaq to be unconstitutional and instructed the Parliament to adopt legislation in this respect. It cleared the path for the Muslim Women Protection of Rights on Marriage Act, 2019, to be passed in July of this year. It ruled Triple Talaq to be invalid and illegal, whether in writing or electronic form.

CONCLUSION

“Implementing the Triple Talaq Bill in its current form will be a disaster as many men, fearing criminal prosecution, may simply abandon their wives rather than divorcing them.” -BJD MP Rabindra Jena

This judgement is a watershed moment in the protection of women of minority religions in a country whose personal laws aren’t in line with core constitutional rights. The measure not only makes triple talaq illegal, but it also punishes men who seek to desert their spouses through it. The ruling is a real illustration of how democratic ideals like as equality, liberty, and endless others would not be stifled by any worldview, whether religious or not.