WHAT IS THE UNIFORM CIVIL CODE?
Article 44 of Indian Constitution provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” This article lies in Chapter IV which gives guidelines to the state for and while making laws and is fundamental in the governance of country. However, these principles of state policy are not enforceable in any court of law but courts can take cognizance of the same.1
India has a uniform criminal law in the shape of Indian Penal Code. In addition to the code, there are supplementary criminal law acts which have been enacted from time to time. The criminal law applies uniformly to all persons, irrespective of religion and region. However, people are ruled by their personal laws in civil matters including marriage, divorce, inheritance, succession etc. Bringing commonness and uniformity among civil laws would mean that the same piece of rules will apply to all classes irrespective of their religion, region, ethnicity, culture and so on..Analysts consider UCC as tyranny of the majority over minority which undermines the secular character of state. It , moreover, would mean, culture assimilation of different cultures among people of diverse cultures and plurality.
RELIGIOUS FREEDOM AND SECULARISM
In S. R Bommai v Union of India (1994), The Supreme Court of India held Secularism as “basic feature of India constitution.” However, the Indian brand of secularism is different from western one. In India, secularism means that the State will treat all religions equally. In west, secularism connotes that state has no religion. Article 25 (1) guarantees to every person the freedom of conscience and right to profess, practice and propagate religion. Right to Freedom of Religion is subject to public order, morality and health[…] Also Art 25 (2) (a) provides that State is empowered by law to regulate or restrict any economic, financial, political or any other secular activity which may be associated with religious activity.
UCC IN THE EYES OF SUPREME COURT
In Sarla Mughal v Union of India (1995), the Supreme Court of India reminded the state of its obligations under Art 44 and issued directions to it to take appropriate steps for its implementation. However, after sometime, in Lilly Thomas v Union of India (2000), court retracted its steps and stated that it did not issue any direction for the codification of common civil code.2
RELIGIOUS FREEDOM VERSUS NATIONAL UNITY
Those in favour of UCC argue that it is important for promotion of national unity and integrity.3 In Shah Bano v Mohammad Ahmad Khan (1985), it was observed, a common civil code will help the cause of national integration[…]”4 They further argue that there is no necessary connection between religion and personal law. Marriage, succession and like matters are of secular nature and they can be regularized by law. 5 A more bizarre argument was provided while the framing of article. During a debate in Constituent Assembly, K.M Munshi said [..] every minority has to submit to civil code (majority). On the other hand, the proponents of religious freedom believe that India being a secular country, we must have right to follow our own religion, culture and customs under Art. 29 and implementation of UCC will violate those rights.6
OBSERVATION MADE BY THE LAW COMMISSION
On August 31, 2018, the Law Commission of India in a 185-page consultation paper “Reform of Family Law” noted that, A uniform civil code “is neither necessary nor desirable at this stage” in the country. The Commission said secularism cannot contradict the plurality prevalent in the country. The Commission, led by former Supreme Court judge Justice B.S. Chauhan, said “cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation”.
A unified nation did not necessarily need to have “uniformity”. ”Efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights,” the Commission said. Difference did not always imply discrimination in a robust democracy, the government’s topmost law advisory body said. In fact, term “secularism” has meaning only if it assured the expression of any form of difference. This diversity, both religious and regional, should not get subsumed under the louder voice of the majority, the Commission said.7
The observation by Law commission is a welcome sign which puts many speculations to rest, especially the fears of minorities. India is a place of vast diversity, inhabiting people of different cultures, traditions, religions and tastes. The majoritarianism will surely backfire. The observations made by Justice Chauhan or Law Commission must be an eye opener for the ruling party which has been very vocal in support of UCC in the grab of its majoritarian vote bank.
1. Art. 37 of Indian Constitution
2. V.N Shukla’s Contitution of India, thirteenth edition, pg 384
3. J.N Pandey’s Constitutional Law of India, 55th edition, pg. 468
4. Dr. Sheikh Showkat Hussain, Uniform Civil Code: Kashmir Perspective, Vitasta Law Journal, Vol. 6, No. 6, pg. 68
5. J.N Pandey’s Constitutional Law of India, 55th edition, pg. 469
6. Dr. Sheikh Showkat Hussain, Uniform Civil Code: Kashmir Perspective, Vitasta Law Journal, Vol. 6, No. 6, pg. 69
7. The Hindu, August 31, 2018
The Author is a Law Student at Department of Legal Studies, Central University of Kashmir. He blogs at http://AbrarReyaz.wordpress.com and can be reached at: firstname.lastname@example.org