Uniform Civil Code and the Constitution: A tale of three myths
The ongoing debate on the Uniform Civil Code (UCC) is yet another reminder of how law can be employed as a smokescreen to confuse and overwhelm the channels and capacities of public reasoning. The fog of law and the dreary inevitability associated with it has been projected by the BJP in three ways.
First, the Uniform Civil Code has been presented as an unassailable mandate of constitutional morality, its presence in the Directive Principles an indisputable evidence of the constitutional consensus surrounding it.
Second, judicial pronouncements have been misrepresented to craft a popular myth that the Supreme Court has consistently endorsed the implementation of one code for one nation. To be fair, the BJP has been aided by the meandering ways of the court and its tormenting tendency to opine casually on questions of policy preferences.
Third, a perception has been allowed to gain ground that personal laws are not subject to the superintendence of the Constitution. The BJP has found it quite easy to stir the cauldron also because there is no clarity about the who, what and how of a Uniform Civil Code.
In the absence of a draft, the UCC is whatever we want it to mean - which is to put it mildly, the sum of disagreeing, even quarrelsome, anxieties and hopes of this nation.
Article 44: A limited, unenforceable mandate
The constitutional and judicial position needs to be rescued from these misimpressions and restated in no uncertain terms. Article 44 of the Constitution calls upon the State to endeavour towards securing a uniform civil code throughout the territory of India. It falls within Part IV of the Constitution titled as Directive Principles of State Policy (DPSP) and understood as exhortations to the State to be kept in mind while governing the country.
There has never been any sliver of doubt about the non-enforceable nature of these general appeals. In fact, the first substantive provision of the DPSP, Article 37, categorically bars any of these claims from being dragged to the courts for implementation.
Numerous judgments of the Supreme Court have established beyond doubt that DPSP, their desirability or appeal notwithstanding, cannot be pursued at the cost of fundamental, enforceable and judicially protected individual and community rights enshrined in Part III of the Constitution.
The judiciary tries to harmonise fundamental rights with DPSP to the extent possible but in any conflict between the two, the rights always prevail over these unenforceable directives. Even within the DPSP, there is a presumptive hierarchy and provisions relating to social welfare, free legal aid, compulsory education that relate to and complement fundamental rights have been accorded a special place in constitutional jurisprudence.
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| The judiciary tries to harmonise fundamental rights with DPSP to the extent possible, but in any conflict between the two, the rights always prevail over these unenforceable directives. (Photo: India Today) |
Article 44 does not fall within this cluster as it has never seen unanimity nor is there clarity on its jurisdiction, form or substance. According to eminent jurist Prof MP Singh, BJP’s newfound enthusiasm for constitutional aspirations should also extend to fundamental duties, one of which requires us to promote harmony and the spirit of common brotherhood among all Indians transcending religious diversity.
The Constituent Assembly was clear that the UCC was a limited mandate, contingent on social and political consensus in the future. Article 44 generated no obligations for anyone and made it easier for the Assembly to adopt a provision that meant something for some ideological camps, yet was a dead letter for all practical purposes.
Court and the Code: A tale of caution
The interpretation of Article 44 by the judiciary in the 67 years since the birth of the republic has only confirmed its status as a promise so riddled with contingencies of climate and constitutional doctrines that it is no promise at all. Some stray observations have indeed been made by the Supreme Court in a few cases over the years about the code’s appeal but they do not form binding legal precedents.
These remarks constitute, what in legal parlance, is called obiter dicta - an observation made in passing that is of no relevance or value to the position of law. Many believe it is outside the judicial prerogative or capacity to paddle into the policy space of deciding which customs and practices make their way into a uniform code.
In fact, the courts have grasped the difficulty and impracticability of UCC in most cases and cautioned against its hurried adoption.As late as 2015, the Supreme Court refused to pass directions on UCC and laid that initiative at the door of Parliament.
Some judges might still find the idea of UCC irresistible to wade through the quagmire of legal pluralism but they forget that uniformity while administratively convenient, is not a sociological fact. We can produce uniformity of laws but where are we going to find a ground united by beliefs and practices where the State could implement these laws without coercion or conflict? Can the state even think about imposing one language and outlawing all others for reasons of governmental handiness? Then why this enthusiasm towards uniform personal law?
Are personal laws really invincible?
The other myth that has provided impetus to the demand for UCC is the myth of invincibility of personal laws. There seems to be an impression that personal laws are excluded from the scope of judicial review and UCC might be the only way forward for filtering out discriminatory personal laws.
This again is far from the legal position which is that all laws made by Parliament, whether they are personal laws or criminal laws or financial laws, are judicially reviewable and potentially void, to the extent of their inconsistency with fundamental rights.
The only exceptions to the rule of judicial review are laws deriving from a different legal system that have not been codified under the framework of Indian law. For example, Sharia, the Islamic canonical law, is sourced not from the Indian Constitution but the Islamic religious legal system and hence, there is the natural possibility of a mismatch of principles and practices between the two.
If there was codification of Sharia in the Indian context, then this incongruity can be addressed and a law deriving from Sharia would be judicially reviewable even while it governs the personal laws of Indian Muslims. This is because constitutional superintendence extends over all processes that derive its authority from the constitution.
As the eminent jurist and activist Flavia Agnes has shown, landmark rulings in Shamim Ara and Daniel Latifi, when used along with women-centric legislations like the The Protection of Women from Domestic Violence Act, 2005, offer fertile ground for creative interpretation and protection of rights under laws like the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The transformative potential of these precedents can be seized fully with greater dissemination within the judicial consciousness and significantly aided by codification of customary laws. However, as Shehnaaz Sheikh of feminist collective Aawaz-e-Niswaan says, the demand for codification or court scrutiny does not naturally translate into a demand for a uniform code.
Mariya Salim, a prominent face of the Muslim feminist network Bhartiya Muslim Mahila Andolan (BMMA), says Muslim women overwhelmingly favour a ban on triple talaq while opposing the UCC. She believes that UCC can be framed as an optional, secular code for the future even while allowing for codification of Muslim personal law.
BMMA has also floated a model nikaahnama based on a nationwide survey of Muslim women that can be a starting point for discussion. With codification, people will have the freedom to choose between an Islamic code and a secular law but no freedom to escape constitutional scrutiny and follow gender discriminatory practices. Judicial review will extend equally to both kind of laws, as and when rights are abridged.
Sameness not the same as constitutional morality
The ban on triple talaq only takes the process forward which was inaugurated by the landmark verdict of Shamim Ara. In this case, the Supreme Court invalidated arbitrary rehearsal of triple talaq and made its validity contingent on the proper practice of Quranic injunctions.
The process of Sharia codification, deriving its legislative authority from the Constitution, will act as a bridge and make provisions of Sharia subject to judicial review. However, this has not happened so far and it is not because the Constitution prohibits it but only because the political balancing and social consensus needed to build a coordinating link between the Islamic legal system and Constitution has not been achieved.
This much is known and understood across the political spectrum yet unfortunately, pretensions fly. All codes, including an optional, secular uniform code and Islamic, Hindu, Christian, Parsi, Jain, Buddhist and Tribal codes governing personal laws, are not only possible but eminently desirable within the framework of the Constitution.
They will operate like all other laws which, even while legislating on the same areas, govern different subjects. After all, difference is not discrimination and sameness is not the same as equality or justice. The Constitution commits us to constitutional morality, not any one stubborn way of realising it.