Authored by Devangi Chandak, a 3rd-year Law Student at the School of Law, Christ University, Bengaluru
Introduction
Article 44 of the Indian Constitution places a duty on the State to secure a Uniform Civil Code (“UCC”) for the citizens of India. Although it is in the nature of a Directive Principle of State Policy (DPSP), the State has now witnessed enough incidents to address the enforcement of a UCC or some other legislation along the same vein as a law in force. A uniform standard would allow citizens to be treated equally in matters of marriage, divorce, inheritance, adoption, and beyond, thereby providing equal treatment to the people concerned. However, implementing a uniform standard in India has to be viewed through the socio-political lens to address the potential issues that may arise.
Need for a Uniform Civil Code
Through its diversity, India bound different religions through their respective personal laws, for instance, the Hindu Code for the Hindus, Jains, etc.; the Shariat Law for the Muslims; the Parsi Law for the Parsis, and so forth. These legislations are majorly based on their respective religious principles and values, resulting in a differential treatment both within and outside the religion. Although such governance was acceptable in the early years, the same is not just in the contemporary time due to the social and cultural shifts.
Non-Interventionist Approach
Legislation bearing uniform standards is essential as the abovementioned personal laws are in conflict with Part III of the Constitution, i.e., the fundamental rights enshrined under the Constitution. Further, while technically such violations are taken into cognizance by the High Courts and Supreme Court under Articles 226 and 32, respectively, the Bombay High Court, in the case of State of Bombay v Narasu Appa Mali, adopted a ‘non-interventionist’approach and concluded that personal laws do not qualify as ‘laws in force’ under Article 13(3)(b) of our Constitution. Although customs were covered under the ambit of Article 13(3)(b), there is no logical rationale behind excluding personal laws from the same. This High Court decision dominated various judicial pronouncements dealing with the constitutionality of personal laws, including Ahmedabad Women Action Group v. Union of India and P.E. Mathew v. Union of India, amongst others. The judgments during this period reflected the unwillingness of the judiciary to resolve the conflict between personal laws and fundamental rights due to the ‘sensitivity’ of the issues. This also resulted in conflicting opinions between the Courts of Law. For instance, in the case of Narasu Appa Mali, it was held that since personal laws were enacted before the commencement of the Constitution, they cannot be challenged. However, in the case of Madhu Kishwar v. State of Bihar, it was held that customs can be challenged in case of a conflict with fundamental rights. This reflects the disagreement between the two courts with respect to the same subject matter.
The Scrutinising Approach
Later, the courts began to understand and scrutinize the discrepancy in the judgment of Narasu Appa Mali and adopted the usage of doctrines of Eclipse, Severability, and Interpretation of Statutes to bring personal laws in consonance with Fundamental rights. One of the most recent judgments is the case of Indian Young Lawyers’ Association v. State of Kerala. Popularly known as the ‘Sabrimala Case,’ J. D.Y. Chandrachud, as a part of the nine-judge bench, tested the custom of ‘non-entry of women’ into the Sabrimala Temple to the test of fundamental rights under the Constitution and held it to be unconstitutional, thereby discrediting the judgment of Narasu Appa Mali.
Thus, although the Court has permitted such tests and challenges, there is a need for a stringent and more secure standard for the governance of the diverse religions and communities in the country.
Potential Issues posed by a Uniform Civil Code
While it is crucial to formulate and implement a uniform standard for governance, two potential issues arise. Although the implementation of a Uniform Civil Code is viewed as a solution to all the religious conflicts occurring within the country, it cannot be ensured that the implementation of such a code would dissolve the case of any violations in the sphere of religion and fundamental rights. The major issues are two-fold in nature and are elucidated below.
Conflict with Article 25
One of the prima facie issues that arise over the implementation of the UCC is with respect to Article 25, which guarantees the citizens the freedom to profess, practice, and propagate their respective religions. Since personal laws trace their roots to religious principles, a uniform standard would infringe upon their right to religion.
However, a significant loophole in this argument is contended by the proponents of the UCC concerning the ‘public order, morality, and health’ as mentioned in the aforementioned Article. This implies that the freedom to practice such religion is subject to the abovementioned criterion and other principles enshrined under this part. This debate has not yet found a conclusion as the loophole is visualized through various aspects in different manners.
Further, it would be ironic when one of the major reasonings behind the formulation of a Uniform Civil Code is the aim of resolving religious conflicts, but the implementation of the same leads to more conflicts than ever.
The Issue with Implementation
Every legislation aims to advance the needs and well-being of the society, and amidst such process, it is crucial to look into the societal structure of a society.
In the instant case, even if a Uniform Civil Code is enforced after resolving all other issues, a potential problem still exists with respect to the implementation of the same. Well, prima facie, it is associated with the formulation of such a standard. It is essential to question as to ‘how will a uniform standard be codified that addresses the religious needs of all the communities? How will there be uniformity that does not infringe upon the religious ethics of the citizens?’
While there are no concrete answers to these questions, they can be resolved only when the Legislative Body conveys the structure and content of such code. However, it is crucial to bear in mind that in a diverse society such as India’s, a uniform standard implies much more than uniform treatment. This is because such a uniform treatment might not be what the religious sections of society demand. For example, such a scenario was evident through the protests after the decree of the Shayara Bano Judgement when all the judiciary wanted to do was bring equality to all sectors of the population.
Suggestive Measures
The underlying essence of a UCC is the laying down a uniform standard in the field of governance. While the State has time and again hesitated to implement a UCC for the entire country, and for good reason, exploring other measures as an alternative may be essential.
For instance, while we analyse our society’s social structure, it can be concluded that we have evolved from a conservative society to a progressive one. This has been due to the multiple shifts in Judicial pronouncements, the discussions, deliberations, and acceptance by the Legislative Bodies, and the various amendments made by the same.
In light of the same and with respect to the instant conflict between personal laws and fundamental rights, through the history of our society, one can presume the change to occur if the Judiciary and Legislative Bodies take cognizance of this matter too, on a more stringent basis, through the existing mechanism.
The gap between the two can be bridged if the inconsistencies within the various personal laws are repaired so as to bring them into consonance with the fundamental rights. This would serve as a middle ground and a plausible alternative to the issues posed while also avoiding conflict with Article 25 of the Constitution.
By strengthening the existing mechanisms and governing bodies, the tedious struggle that the implementation and execution of UCC poses can be resolved without dropping the ball of a sea change in society.
Conclusion
While it is an established and accepted fact that personal laws contain inconsistencies and violate the fundamental rights guaranteed to the citizens at large, a UCC might not be the only viable solution to the issue at hand.
A long-drawn struggle has been witnessed by the members of our society due to (a) the rationale of the judiciary, which initially provided a leeway for the violations to be continued as personal laws were not allowed to be challenged before the Court of law, and (b) the delayed action of the Legislature with respect to the potential amendments in personal laws.
However, if such a struggle is brought to an end by the existing types of machinery, there would be no need to formulate and implement a Uniform Civil Code, which suffers from and poses multiple issues itself.
However, this would be possible only if the bodies at hand are willing to dwell on the complexities of all the personal laws and mend the same by setting a uniform standard and upholding the interests of the individual and society.