SN Misra
Justice Prathiba M Singh of the Delhi High Court while hearing an estranged couple’s plea for divorce has observed that a common code for all citizens as expressed in Article 44 of the Constitution “ought not to remain a hope, but become a reality.” She was referring to the landmark Shah Bano case verdict wherein the Supreme Court in 1985 had observed: “A common civil code would help the cause of national integration by removing disparate loyalties to laws having conflicting ideologies.” The SC had observed that Article 44 of the Constitution has remained a dead letter and there is no evidence of any official activity for framing a civil code for the country.
The Shah Bano verdict was the first challenge to the Muslim Personal Law (1937) which denied maintenance to indigent divorced Muslim women. Then CJI YV Chandrachud had observed that the right to equality and absence of discrimination against women enshrined in Articles 14 & 15 equally apply to Muslim women. Section 125 of CrPC, which provides for maintenance to divorced women, would override archaic and patriarchal Muslim Personal Law. However, the contentious part of the judgement was its direction to the government to bring in a uniform civil code at the earliest. The court referred to Dr Tahir Mahmood’s scholarly book on Muslim Personal Law which says: “In pursuance of the goal of secularism, the State must stop administration of religion-based personal laws… Instead of wasting energies in exerting political and theological pressure… the Muslims will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.”
The court has been assiduously following this line of argument in subsequent judgements like the Sarla Mudgal judgement, 1995, where Justice Kuldip Singh had observed: “When 80 per cent of the citizens have already been brought under the codified personal law, there is no justification to keep in abeyance introduction of a uniform civil code.” In Lily Thomas Case, 2000, the desirability of a uniform civil code particularly in regard to succession was reiterated. In ADC vs. NCT (2015), the SC lamented the absence of a uniform civil code with regard to guardianship of a Christian child.
Interestingly, the Law Commission of India in its report in August 2018 had stated that a uniform civil code is neither necessary nor desirable at this stage. “Secularism cannot contradict the plurality prevalent in the country,” the Commission said.
In this backdrop it would be useful to look at the larger picture of conflicting provisions in the Constitution and the contrarian viewpoint of academia and activists who are opposed to introduction of a uniform civil code. The Constitution has clearly provided in Articles 25 and 26 the right to profess, practice and propagate religion to all. On the other hand, Article 44 is an invocation to the State to endeavour for introduction of a uniform civil code. Therefore, introduction of a uniform civil code would be a clear negation of fundamental rights given to religious minorities.
The idea of achieving common Indian identity is undesirable because Indian identity is plural and a synthesis of differing views. Detractors believe that instead of a uniform social code, the state should attempt to bring in substantive equality at all levels and promote socio-economic justice for all.
Flavia Agnes, a well-known women’s rights activist, believes that uniformity has not worked well for women in India. Rather than uniformity, women need an accessible and affordable justice delivery system and inclusive model of development. Prof Nivedita Menon believes that national integrity as a rational for a uniform civil code along with its conflation with women’s rights is unacceptable because of its implicit homogenising thrust. She strongly advocates reforms in personal laws which are patently unjust.
The above perspective clearly brings home the inherent dangers of cultural homogenisation, given the plurality of Indian society. The Sarla Mudgal judgement made a sobering observation: “The desirability of uniform civil code can hardly be doubted. But it can concretise only when social climate is properly built up by elite of the society; statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.”
Given the divisive times that we live in, respecting plurality in practice of personal laws rather than foisting Hindutva under the guise of a uniform civil code would be advisable. Promoting socio-economic justice, transcending religious consideration should be the predominant remit of the government. The judiciary should not be seen as promoting a uniform civil code at a time when the pluralistic fabric of India is under severe strain.
The writer teaches Constitutional Law.