It’s been over 65 years, and Article 44 still seeks implementation. If at all implemented, what are the changes that will follow? I will restrict myself to the impact it will have on grounds of gender. Will such implementation make a man and woman stand on the same platform? What change will it bring in the status of a woman in the society?
The implementation would actually bring in a system of uniformity in laws which will in turn bring about equality in the society. As such, in the country today, various religious personal laws are in force, which are diverse and applicable to restricted sets of people. To add on, most of these laws are discriminatory to women and are patriarchal in nature. When men and women are citizens of the state, the state should govern them and not a set of religious laws. In spite of secular laws enacted in the country, these enactments are not a mandate. It is up to the individual to decide whether to be governed by the secular code or his or her religious code. The ground fact is that there is wide spread communal and religious inequality, with inbuilt gender discrimination exclusive to women.
I think that an egalitarian society can be established only by way of implementing Uniform Civil code. It basically brings about a set of secular civil laws that will be applicable to one and all regardless of religion, tribe or caste. As a matter of fact, any law in force cannot afford to be selective in its application. All discriminatory laws will have to find their way out. A fear of being a minority will no longer prevail. It will also be an instrument to put an end to patriarchal dominance. To me, it is a positive law with a beneficial impact. Then why is it just in letter? Why can’t it be in spirit also? When it is possible to get this mechanism work in a state, then why not the country?
In order to understand the effect that UCC will have upon implementation, we will have to understand what UCC is in the Indian Context. Though the constitution has promised a UCC, it has also allowed the religious minorities to retain their personal laws. So, the UCC as seen by the minorities is an instrument for the negation of the identities of the minorities. But the fundamental question here is why there is an apprehension in losing the status of a minority? It is an accepted fact that in a populated country like India, it is likely that we have different proportions of religious communities living which will ultimately lead one to be a minority while the other becomes a majority. The status of minority is given just to denote that they are less in number. But that is clearly not the scenario today.
As a result, today we have four major personal laws – Hindus, Muslims, Christians and the Parsis. All these personal laws are, at the minimum six hundred years old. Almost all of these laws advocate, though not expressly, patriarchy. At this point, we must know that there are some religious feminist organizations who want a codification of laws within their religious framework. To enable a law free from the clutches of patriarchy.
To go any further, the question of Indian Secularism must be answered. India, being a secular nation, maintains religious personal laws alongside other secular, criminal and civil laws, and all of them are administered by the same judicial body. There is excessive plurality and there is a crisis of identities. Can this crisis be attributed to the failure of ‘secularism constructed in the Indian Context’? It is definitely not representing division of religion in politics. Something called the Sarva Dharma Samabhav which basically means equality of religions is what is prevalent in India. The government is not patronizing any single religion; rather it is trying to embrace all religious faiths.
Now comes the Shah Bano controversy. This case saw the application of secular laws in the maintenance of a Muslim wife. It had two impacts. There was political mobilization for and against the judgment. Second, Muslim Women (Protection of Rights on Divorce), Act was enacted. In spite of a plea for a UCC, another statute was enacted. This Act almost negates the very purpose of the judgment where a Muslim wife is entitled to maintenance only for the iddat period which may extend upto a year as against §125 of IPC. The court has held that §125 of IPC is applicable to everyone irrespective of their religious affiliation. The court has also asked the state to enact common laws to promote national integrity. As long as we are citizens of the state, we must be governed by the state laws common to all. Why should there be non-uniformity in application of laws within the country on its citizens based of religious affiliations? The Shah Bano case taught the country that personal laws can become political battlegrounds because religions influence personal law. In cases that challenge personal laws, it becomes nearly impossible to delineate the historical, personal and political elements from each other as they are all seamlessly woven into one entity.
Towards the fifth decade of Independent India, there was further erosion of the principles of secularism. The demolition of Babri Masjid in 1992 escalated this issue. The Hindu-Muslim gulf widened during this time. The dream for UCC again came down crumbling. Such events have just led to the re-examination of the implementation of the UCC. There was another judgment by the Supreme Court in the Sarla Mudgal’s case regarding polygamy of Hindu men after conversion to Islam which reaffirmed the need for a UCC. Now, human rights activists and women rights activists are taking up the issue more seriously.
The Uniform Civil Code gives women their right as a citizen of a secular state devoid of her personal law. But this is again against the fear and threat of tradition, custom and religion. On the other hand, it gives equality and unity nationwide. My argument here is that religion in itself as an institution, will reduce to a very personal level and it will lead to liberation of an emotionally controlled society. At such point, the fear of being a minority will never matter. You will remain a minority only for so long as there is a separation on the basis of religion. Now, if that is done away with, only for purposes of Law, (what I mean here is that once there is a dispute or a need for court interference, then the laws that will be in question need to be secular laws only and not personal laws; this will ensure actual equality before a ‘common’ law; every person will then be judged on the same grounds- by virtue of being a citizen) then every person will now be deemed to be a citizen of the state regardless of his faith and religion. He will be governed by a state law. It is grounded on three fundamental principles; Gender equality, national integrity, concept of modernity. The gender groups claim for UCC basically because it will bring out Indian women from gender bias related misery. Here, it becomes the duty of the state to intervene and bestow Gender Justice on women by enacting a common code.
Before we speak about the implementation of UCC, it is important that we understand what Article 44 of the Constitution says. Article 44, by virtue of Article 37, it is clear that it is non-enforceable, the principle will nevertheless be fundamental in the governance of the State, and that it shall be the duty of the state to apply these principles while making laws. It does not mandate the state to enforce a UCC; rather it just says that “the state shall endeavour to secure a UCC for the citizens throughout the territory of India.” It is left to the wisdom of the state entirely and exclusively when it comes to how the state shall take into account such principles. Despite the desirability of a uniform code, the Supreme Court in Pannalal BansilalPatil v. State of Andhra Pradesh , (1996) 2 SCC 498, cautioned that the enactment of uniform law for all persons “in one go may be counterproductive to the unity of the nation.”
On a conclusive note, if it is the fear of being a minority that is holding us from implementing UCC, then I think it’s high time we come out of such an intuition. When you look at it closer, this system will do away with any kind of an issue that deals with being in minority amidst the majority. The minority will no longer remain a minority; neither will the majority remain majority. There is no question of that sort. All citizens, whether male or female will be set in the same footage. In such a condition, what will be the role of being a minority?
Further, there are certain minority groups who take the implementation of a common code very personally. They look at it as an imposition of majority laws over the minority. Some people also understand UCC to be synonymous to the Hindu Code Bill. This is basically because of misunderstanding the concept. It is important to understand that diversity is not just religious, it is also regional. There are territories like Goa, Daman and Diu where the Portuguese civil law governs family law and succession. The Hindus are a majority in Goa and are still governed by the Portuguese Civil Law subject to some ancient Hindu traditions protected by Gentle Hindu Usages Decree 1880. The statutory laws applicable for other Hindus in the Indian Territory are inapplicable here. The Goan Christians are also governed by the same code and the Indian succession act and other statutes governing the Christians are not applicable here. The Goan Muslims are governed by the Civil Code and partly by ancient Hindu usage mainly because the Muslim Personal Law (Shariat) Application Act, 1937 is still not applicable here. It can be inferred that almost the entire population of Goa follow a common code. When it is possible here, why not in the country?
There should be state interference. But such interference should be done very carefully. It must be seen to that while interfering with personal laws; the state must not interfere in religious affairs. Further, UCC alone is not going to bring about Gender Justice. It can only make things better. Enforcing the common code is not going to do away with religious practices or tradition and culture. It is just removing certain discriminatory practices and is trying to restore equality. It is just a progressive measure which will help dilute gender discrimination. Relating the UCC with communal issues complicate and create serious problems in the society. In S.R Bommai v Union of India, it was held by Justice Jeevan Reddy that religion was a matter of personal faith and cannot be mixed with secular activities. The State may regulate secular activities by the enactment of laws.
The consciousness about women’s rights is rising continuously. Various feminist organizations like Women’s Indian Association, Nationals Council for women in India, All India women’s conference are playing important roles in articulating role of women in politics and other arenas. In India, it is a sad fact that women, at the first hand, are not women instead they are Hindu, Muslim, Christian, Jew or Parsi. This mentality is the root cause of discrimination and various social evils. Again, laws cannot be selective in its applicability; the consequence of it will be improper administration of justice.
India already has an optional civil code in the form of the Special Marriages Act, 1954. This, read with similar Acts such as the Indian Succession Act, 1925, provides a good legal framework for all matters of marriage, divorce, maintenance and succession for those who may wish to avoid the religion-based laws. The codification of Hindu Laws is also a step towards Unification of laws. This can be considered to be a step towards an establishment of a society governed by a common code. It is just that they are selective in application. I think in the days to come, the state of things will definitely change.
At the end of the day a person must not see him tied to the institution of religion when it comes to his contribution to the nation-building process. He or she should consider himself or herself as a citizen rather than a Hindu, Christian or a Muslim. The supreme law of the land, the Constitution guarantees equal rights to all the citizens regardless of religious affiliation. This kind of implementation apart from bringing equality, it will also reduce the confusion and delay caused in the judicial adjudication process by the existing personal laws.