Author : Deepansh Bhati, Student, SHAHEED BHAGAT SINGH COLLEGE, UNIVERSITY OF DELHI
Introduction:
India’s canvas is painted with diverse colors of cultures, beliefs, faiths, languages, traditions, festivals, religions and castes, and this beautiful canvas presumably encompassing the highest degree of diversity, within the ambit of any other foreign state, is still a republic with the concept of ‘Lex-Rex’ occupying the most dominant stature. This is where the beauty of unity in diversity holds its provenance. With a multiplicity of religions and cultures, India is a shining and an outstanding example of ‘SARVA DHARMA SAMBHAV’. Given the diverse nature of Indian society, existence of personal laws in plurality has been innate to our secular republic. This plurality often becomes provenance for conflicts and violations of rights to equality and this is where the debate for implementation and execution of a Uniform Civil Code for India starts to manifest its presence.
Understanding Uniform Civil Code:
Uniform Civil Code which is enshrined under Article 44 (Part 4) of the Indian constitution as one of the Directive Principles of State Policy (DPSP) is the process of legislating or codifying uniformity in civil laws across the territory of India irrespective of religion, belief and culture. In India, uniformity is a manifestation by the majority of civil laws but personal laws have always remained as exceptions which are contingent upon one’s belief, religion and culture. Personal Laws are the laws which deal with governance of marriages, successions, adoptions and related provisions in a family relation. Examples entail Hindu Marriage Act, Indian Succession Act, Indian Christian Marriage Act, Muslim Marriage Act and etc. Their self explanatory titles bear testimony to the fact that different religions and cultures have different family and personal laws which needs to be unified.
Article 44 in The Constitution Of India 1949 Says : Uniform civil code for the citizens The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India
UNIFORM CIVIL CODE IS NOT JUSTICIABLE IN COURT OF LAW. WHY?
The Directive Principles of State Policy which are enshrined under part 4 of the constitution represents the socio economic rights of the citizens of India but Article 37 of the constitution makes them non justiciable in the court of law, which essentially implies that DPSP’s are not enforceable by the courts, but they are imperative legislative directions given by the constitution to the legislature and remain fundamental to governance in India. Article 44 also lies within the ambit of DPSP’s hence not justiciable. An imperative and reasonable question here is why the founding fathers of our constitution made uniform civil code a part of DPSP but not Fundamental Rights? The answer to this question lies in the fact that at the time of India’s independence and framing of the constitution, India was a highly unstable union with communal riots teeming across the length and breadth of the newly established union of states. With communal riots teeming across, strict implementation of uniform civil code by the means of Part 3 Fundamental Rights could have oiled the wheels of already highly violent riots and feelings of separatism could have originated. For these reasons Uniform Civil Code along with other socio economic rights which were not available at the stroke of independence were left under Part 4 of the constitution as DIRECTIVE PRINCIPLES in FUTURE LEGISLATIONS and were also not given the stature of justiciability owing to the fact, that socio economic rights are not only contingent upon the intent of the state but also availability of resources and conducive environment for their effective implementation.
Article 44 of the Indian Constitution reads as – “The state SHALL endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The language of the article is a manifestation of the intent of the founding fathers of the constitution of India. Choice of words such as SHALL manifest that the framers were intended to secure the uniform civil code but owing to the non conducive environment, they left the task for the legislature to come. It is regretful and saddening to witness that even after more than seven decades of implementation of the constitution, no concrete attempt has been made by any of the government which came in power. Ostensibly owing to political interests and vote bank politics, neither of the governments attempted to bell the cat. The legislatures which came in power have not kept the promise of implementing uniform civil code which was once envisaged by the legendary framers of our constitution.
THE LANDMARK JUDGEMENT – SHAH BANO CASE AND OTHER REMINDERS :
Judiciary and honorable Supreme Court which is regarded as custodian of the constitution of India have time and again sent reminders to the legislature to fulfill the dream of uniform civil code. In this regard, the SHAH BANO CASE (Mohd. Amhed Khan v. Shah Bano Begum) of 1985 is considered as a landmark judgment which was the first reminder by the honorable Supreme Court to the legislature in the direction of implementing the UCC. Shah Bano Case, which was primarily a conflict between Section 125 of CRPC 1973 and provisions under Muslim Marriage Act, was filed on the grounds of gender injustice prevailing in the personal laws. In the SARLA MUDGAL Case of 1995 also, the conflict was revolving around gender injustice (primarily it was concerned with bigamy issue). This was the second prominent reminder by the judiciary to the legislature. And this is a consistent process with judiciary reminding to implement Article 44 in the form of an ordinary law of the parliament or state legislature.
NEED FOR A UNIFORM CIVIL CODE:
Another commonly asked question is why India needs uniformity in the personal laws? The answer to this question lies in the fact that majority of personal laws are violative of fundamental right of right to equality under Articles 14 and 15. Gender Injustice is a starkly visible phenomenon in the variety of personal laws which India identifies. As observed in the Shah Bano Case and many other associated judgments, discrimination on the grounds of sex are prevailing in the personal laws and as per Article 13 of the constitution such laws or the selected provisions need to be struck down but unfortunately they are enjoying immunity in the name of personal laws. This is a galling concern which needs focused attention of the legislature. Apart from this, plurality and overlap of personal laws have sparked off conflicts for which a uniform civil code is the only panacea. Different religions and cultures have different sets of practices which are inconsistent with one another eventually sparking off conflicts between two communities of different beliefs. Implementing uniformity in the personal laws holds the potential to fire up all the cylinders for nationalist fervor and sense of unity and brotherhood across the nation which today seems imbalanced up to a certain extent owing to communal boundations and contingencies.
RECENT ENDEAVORS TOWARDS UNIFORM CIVIL CODE:
The TRIPLE TALAQ ACT of 2019 which in substance declared the practice of triple talaq, that is to say, talaq e biddat or any other similar form of talaq (divorce), illegal. Any muslim husband who pronounces such talaq to his wife can suffer imprisonment for a term of three years and might also be liable to fine. This can be regarded as an important step towards ensuring and securing uniform civil code. The act which banned the ill practice of triple talaq was violative of gender justice taking place in the Indian society in the name of personal laws. The NDA led government which enjoys a phenomenal confidence of the lower house had mentioned the Uniform Civil Code in the election manifesto of 2019 as well therefore expectations are held high from the current administration and concomitantly their responsibility to perform positively on this promise is also way higher.
It is interesting to note that the state of Goa has secured the uniform civil code for the goans given that the personal laws are part of concurrent list of the seventh schedule of the constitution. Goa is a shining example of effective and successful implementation of uniform civil code and continues to act as an inspiration for the rest of the Indian territory. Goa has achieved the expectations and hopes of the drafting committee of the constitution and recently the Chief Justice S.A. Bobde also applauded Goa for the same and once again reminded the dire exigency to give effect to Article 44.
UNIFORM CIVIL CODE - A MORAL DUTY OF THE PARLIAMENT:
Giving effect to the 44th Article of the Indian Constitution is also a moral duty of the parliament not only because it was envisaged by the founding fathers of the constitution but also because India practices the form of secularism which is not exactly the replica of the western secularism. India has its own form of secularism and for this very reason, the word SECULARISM was not included in the original preamble of India rather it was added by the 42nd Constitutional Amendment Act of 1976 which was essentially a political move without any constitutional effect and enforcement. To prevent an incorrect opinion of the foreign states regarding Indian secularism and understanding it as the replica of western secularism, the founding fathers deliberately skipped on the word secularism in the preamble but gave all fundamental rights pertaining to freedom of religion under Article 25 to Article 28. Imperative to note is that unlike the western definition of secularism, Indian version of secularism does not provide for complete divorce between the state and religion but allows the state to intervene in matters of religion whenever required. Therefore, in the light of implementing uniform civil code, legislative action could not be marked as encroachment of the state in religion since India is not a rigid follower of the definition of secularism which is prevalent in many western foreign states.
CONCLUSION:
Continuance of the plurality in the domain of personal laws ostensibly imperils the gender justice especially for the women as observed in many of the judgments. Therefore Uniform Civil Code is a dire exigency to protect the rights to equality for women and promote cultural unity in diversity in spite of leaving rooms and loopholes for conflicts and inconsistencies by personal laws. Although the NDA led government enjoys a phenomenal confidence of the lower house and aims to establish and give effect to uniform civil code, at least in black and white, yet formalizing would be an ordeal given the politics of it. The judiciary and the honorable Supreme Court who time and again send reminders have a limited role of recommendations and expectations which cannot take the shape of a mandamus since doing so would terminate the delicate balance between the judiciary and the legislature. It would be interesting to note that which administration gives effect to the much needed uniform civil code and prevents Article 44 to turn into a dead letter of the constitution.
Footnotes and Citations:
- Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985, 1985 SCR (3) 844
- Smt. Sarla Mudgal, President, ... vs Union Of India & Ors on 10 May, 1995, 1995 SCC (3) 635
- INDIA CONSTITUTION Article 44
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