February 15, 2022 - 5:20 am

 Including The Best Provisions Of All Personal Laws

On the last day of campaigning for the Assembly polls, Uttarakhand Chief Minister Pushkar Singh Dhami promised that the BJP, if re-elected, would enact a uniform civil code (UCC) for the state.  Dhami has promised to set up a committee for preparing a draft UCC. But the promise of a UCC is not part of the 60-page BJP manifesto for Uttarakhand. The BJP manifesto for the 2019 Lok Sabha elections had stressed there cannot be gender equality without a UCC, and promised a UCC would be drafted drawing from the best traditions and harmonised them with modern times. This implies that the UCC would include the best provisions of all personal laws.

The Constitution’s framers used the term “uniform” in Article 44 and not “common”, because “common” means “one and the same in all circumstances”, while “uniform” means “the same in similar conditions”. Different people may have different laws, but the law within a particular group should be uniform. Such a classification is permissible even under the right to equality under Article 14. “Civil” means matters where personal rights (not public rights) are in question—such as a contract, or sale and purchase of goods/services or properties. Even “code” does not necessarily mean one single law in every circumstance. It may mean either one enactment such as Indian Penal Code, or the Hindu Code Bill that includes three different Acts. While Article 44 uses the phrase “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use expressions such as “in particular strive”; “shall take steps”; “shall promote with special care”; “shall in particular direct its policy”; “shall regard its primary duty”; “shall be obligation of the state” etc. All of these mean that the duty of the court is far greater in other directive principles than in Article 44. While Article 43 mentions that the “state shall endeavour by suitable legislation”, the phrase “by suitable legislation” is absent in Article 44, which indicates that the framers did not intend enactment of uniform civil code by a single legislation.

It is erroneous to assume that India has different personal laws because of religious diversity. As a matter of fact, the law differs from state to state. Under the Constitution, the power to legislate in respect of personal laws rests with both Parliament and state Assemblies. Preservation of legal diversity seems to be the reason for inclusion of personal law in the Concurrent List (entryNo.5). Had uniformity of laws been the primary concern, personal laws would have been included in the Union List with Parliament having the exclusive jurisdiction to enact laws on these subjects. Bringing amendments to central personal laws with enactments such as the Hindu Marriage Act is possible under entry No.5, but this power cannot be stretched to include enactment of a uniform civil code for the whole of India. Once a legislative field is occupied by parliamentary legislation, states do not have much freedom to enact laws. Such laws would require Presidential assent under Article 254.

The issue of a Uniform Civil Code is understandably debatable and controversial, but also unavoidable. Article 14 requires the Government to implement a Uniform Civil Code, although this was enshrined not as a Fundamental Right, but a Directive Principle of State Policy, and therefore not justiciable in courts of law. Successive Governments, which have been prodded by the courts to implement a Uniform Civil Code, have chosen to evade the issue, the foremost reason being keeping a captive vote bank firmly within their grasp. Nehru’s refusal to even touch the question of reform among other communities while pushing the Hindu Code Bill makes it very difficult to deny this charge.

The argument that such a rigid divorce of faith and State is a western idea and construct does not hold any merit here. Even if one were to argue in favour of an Indian variant of ‘secularism’, i.e. equal respect for all faiths, the present Constitution’s permitting personal religious laws to prevail for the Muslim community in the matter of marriage and divorce is an unambiguous violation of the stated constitutional right of equality as laid down in Articles 14 and 15.     

Laws, especially in a secular democracy, have to be equal for all citizens. No religious law can be permitted the privilege of superseding the Constitution. Moreover, if even those who currently enjoy the privilege of religious personal laws wish to be governed by uniform criminal laws, there can be no justification for avoidance of a Uniform Civil Code. To avoid this crucial issue any further is fraught with grave consequences for the country’s polity and the very notion of secular democracy. It needs no reiteration that laws have to be equal for all citizens, irrespective of religion, caste or gender. This is particularly so for a country that also calls itself democratic and a secular democracy, on top of it. In other words, the need for a Uniform Civil Code flows from the very concept of secularism, which mandates the complete separation of religion and State.