Why a Uniform Civil Code is not what India needs immediately
There isn’t any credible draft available anywhere to debate on this.
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The Indian Constitution desires and aims for a Uniform Civil Code (UCC) for its citizens. Harmony, unity, equal treatment of everyone before law, equal penalty or punishment for everybody (irrespective of religion, caste, creed or sex), secular law in a secular nation, gender equality, justice for all, etc are certainly noble objectives that could be pursued through a Uniform Civil Code. These could be ideal goals for a developing nation of great diversities, pluralities and potentials, like India.
Although the spirit and intent behind “one nation one law” is worth appreciating, the task has never been easy. Back in those days, the Constituent Assembly, comprehending the benefits along with the complexities attached to this idea, had vigorously debated the subject at length. The founding fathers ultimately decided not to go ahead with uniform personal law as a justifiable right in wake of severe opposition from the Muslim members. The socio-economic and political conditions in the country were also not in favour of that.
In fact, KM Munshi, the then member of the Constituent Assembly and also the drafting committee of the Constitution, headed by BR Ambedkar, had strongly argued for personal laws to be divorced from religion. Questioning the linkage between personal laws and religion, Munshi had argued that Muslims need to come out of their isolationist attitude and should strongly support a Uniform Civil Code. He had also referred to the Hindu personal laws which, at that time, were discriminatory to women. Even Ambedkar’s draft report had strongly argued for a UCC.
In early 1950s, Ambedkar publicly argued for a UCC citing that India already had common civil code in many aspects like transfer of property, contracts, etc. Them why not include personal laws? However, he modified his stand later and conceded that UCC could be made voluntary, to start with. The Muslim members of the Constituent Assembly argued that Muslim Personal Laws were rooted in the Quran, and that Muslims were mandated to follow personal laws as enshrined in the Quran and not as per any other law book. They asserted that personal laws were part and parcel of their religion and culture for ages and their right to their personal laws was a fundamental right.
They also argued that UCC in matters of marriage, divorce, succession, inheritance would be tyrannical to minority rights. Given this strong opposition, the committee decided not to put personal laws under fundamental rights per se, but provided for their protection under various other related provisions and chose to put UCC under a “non-justiciable” constitutional provision.
Later, Nehru also conceded to the opposition and hence, UCC, as a future desired goal for the nation, found a place under directive principles which were supposed to be the guiding principles of governance.
Since the early '50s, varying degrees of socio-economic and political conditions – illiteracy, ignorance, poverty, climate of hate and divisiveness in the backdrop of partition, religious and sectarian differences, traditions, practical constraints of implementation, absence of political consensus and unfavourable public mood have never allowed Parliament and successive Union governments to venture out towards a UCC. Even the Hindu Code Bill faced some serious resistance from conservatives, reactionaries and from some key organisations in the 1950s.
Interestingly, codification process of the Hindu Personal Laws had started way back in 1941 with Hindu Law Committee coming into existence. Since the passing of Hindu Marriage Act in 1955, critical reforms in Hindu Personal Laws took place – initially by codification and later by means of amendments until as recent as in 2013 - on daughters’ inheritance, divorce, dissolution of marriage, children, compensation, etc. And, it was not until the 2005 Amendment in Hindu Succession Act, 1956 that daughters were allowed equal rights to coparcenary property, as sons.
So even after long years of codification, the Hindu Code has continued to being amended and the reasons are understandable. The dynamic and complex nature of evolution and progress in society with time, the constant need to remove pernicious and discriminatory practices that had set in, the need to usher in equality and justice for all in accordance with constitutional provisions and values (of liberty, life, equality, freedom, justice, nondiscrimination and human dignity) in matters of personal laws, the critical need to harmonise differences in practices within the Hindu community, the nation couldn’t have marched forward without responding to these tough questions and challenges on a time to time basis.
However, these reforms have never been free from serious difficulties and grave challenges. Roadblocks of varying degrees of difficulties have continued to rock these reforms, right since 1950s. Arguably, resistance to change in matters of faith and age-old customs and practices, existence of divisions within the community on various lines, regional differences in customs and traditions, varying tribal practices, changing and evolving face of the society with time would have all led to such contentions and difficulties towards codification of Hindu Personal Laws and its amendments.
Similar challenges to reforms have also arisen in matters of Christian Personal Laws over these years. Hence, forging consensus and effecting uniformity within the personal laws of communities have always been complex, contested, arduous and long drawn out processes – always ridden with conflicts and competing contentions from within.
No wonder, an effort to forge similar uniformity by means of uniform civil code, now, would amount to a humongous social and political challenge and a proportionate level of social disruption ridden with risks. For that matter, even codifying Muslim Personal Laws is not going to be an easy task (as some of us think). Perhaps, it will be an equally complex and difficult process, if not more.
With the existing clear-cut, sharp divisions on Shia-Sunni lines, differences between further sub-sects and schools of theological thoughts among both the Shias and Sunnis like Ithna Asharia, Ismailia, Hanafi, Maliki, Hanbali, Shaafei, etc – along with the fact that each school has its own set of jurisprudence, forging any kind of consensus among these sects could be difficult. It is only a matter of speculation if various traditions and sects within the minority community will be ready to come on a common platform and accept secular laws or accept laws of one sect over the other (both within the community and of other communities). Therefore, it is a no-brainer that any such effort of forging uniformity in Muslim Personal Laws would be a hugely complex socio-political challenge on the ground.
Coming back to the present, firstly, there isn’t yet any credible draft of any sort on UCC available anywhere to discuss or debate about. No one knows the contents of a representation (called Progressive Uniform Civil Code) on UCC that was made to the law commission by a group of eight individuals. It is not yet known how credible is that draft as the commission hasn’t recognised or endorsed its existence and credibility. If there is a draft at all, it will be interesting to find out how the common code would treat existing personal laws of communities and of sects within the communities across the regions.
Second, it is yet not clear whether, for instance, existing secular laws like Special Marriage Act or Indian Succession Act will be reinforced and broadened; or some new secular common law would be brought into effect replacing the existing personal laws; or personal laws of one community would be made to prevail over the other.
Also, it is not clear how a UCC will treat the existing mandatory requirement of performance of holy “saptpadi” ceremony (recognised in Section 7 of the Hindu Marriage Act) in which seven steps taken by a bridegroom and bride before agni to complete a valid marriage between two Hindu parties; Or, how a uniform code will deal with the performances of other ceremonies that have also been held to be valid form of marriages per Sec. 7A of Hindu Marriage Act (amendment brought about by Tamil Nadu Amendment Act 1967) like presence of a priest is not necessary for the performance of a valid marriage and secondly, parties can enter into a marriage in the presence of relatives or friends and finally, marriage could be completed just by a simple ceremony requiring parties to garland each other or to put a ring on any finger of the other or to tie a thali.
It is also unknown how a UCC will treat the essential and mandatory Quranic requirements of Nikaah and Mehr for a valid marriage between two Muslim parties or how it will deal with the Quranic method of talaq for valid dissolution of marriage between two Muslim parties. Questions will also arise as to how a common code will deal with the other essential requirements for a valid Hindu marriage like degrees of prohibited relationships, prohibition under sapinda (cousin marriage), etc.
It will also be interesting to find out as to how a Uniform Civil Code will reconcile varying ceremonies, customs, practices and traditions in marriages from Punjab to Goa to Kerala to Tamil Nadu to North East, etc, which are otherwise considered valid in law. Some other notable issues worth looking could be: how UCC will treat the Hindu undivided family or the tax benefits currently accorded to a Hindu Undivided Family; or, how it will reconcile with the regional differences between “Dayabhaga” and “Mitakshara” schools under Hindu succession in Undivided family, i.e. in terms of the differences in who deserves to inherit, or in terms of reconciling the differences in treatment of ownership rights of coparcenary property or in manifestation of intent in partition or in the right of wife to demand partition, etc.
Matters, such as reconciling differences in inheritance laws between Hindus and other communities regarding concepts of karta and coparcenary joint family property and absence of any such rights in other communities, or reconciling differences between Muslims and other communities in terms of right to will or specific inheritance rules as enshrined in the Quran, are going to be absolutely contesting and tricky. With civil matters of marriage, succession, divorce, etc being on concurrent list and with several states (especially in South) having enacted parallel or additional laws in these areas, reconciling differences between state laws and central laws could also pose difficulties.
Therefore, there are important questions to reflect upon before such a complex project of UCC is embarked upon. Some of the very critical questions that would need immediate attention on the matter are: does it really make sense, at the moment, to replace requirements of a valid Hindu or Muslim Marriage and Succession (having their genesis in divinity, faith, culture, customs, traditions and age old practices) with a uniform or secular marriage and succession code; are the Centre and states on the same page as far as the need to move forward on this vexed matter; is reconciling of divergence in existing central and state laws pragmatic and practical enough when powerful regional political combinations are aspiring for more and more; the moot question of whether uniform or secular law will be easily acceptable to all sections within the major communities and across the regional divide, as that is where the key to successful implementation of any reform of such scale and complexities would lie.
Given the fact that personal laws are matters of deep faith, founded in theology, practices and traditions, and have an emotional and sensitive content attached to it, any effort towards a secular, uniform, personal law could also be (rightly or wrongly) perceived as encroachment, interference and intimidation by the state and could even be considered by some as imposition of one personal law (as the common personal law), over all others.
Without a doubt, Uniform Civil Code is easier said than done in a democratic set-up with such diversities of faiths, theologies, tribes, personal laws, cultures, traditions, practices, history etc. Given the existing social divisions and fissures within the major communities and also between the communities on various counts, and with a maze of personal laws, probability of effecting uniformity doesn’t appear to be encouraging at the moment. No wonder, the difficulties, challenges and risks of such an exercise make the codification process a hugely complex affair.
There are chances (however feeble they may be) that a top-down disruption in the present conditions may also throw the nation’s social fabric and economy into a tailspin and that will never be in nation’s overall interest. This overarching but real concern has essentially been the reason why Parliament hasn’t looked into this subject until now. Even the Constitution Bench of the Supreme Court appeared to be aware of this fact while pronouncing its judgment in the Triple Talaq case and it had to walk a delicate balance on the subject of whether personal laws qualify akin to statutory laws or not; whether personal laws fall under fundamental rights or not; and whether courts are qualified to adjudicate on matters of personal laws.
The emphatic majority view of the Constitutional Bench that personal law is not statutory law but is guaranteed and protected under various provisions of the fundamental rights and that courts are not qualified to interfere in personal laws (which many across the country may not agree), has not only made the task of moving towards a secular uniform personal law much more difficult, but has also added roadblocks to any future UCC passing the judicial muster.
In its judgment on triple talaq, the Supreme Court articulated its position clearly and it saw no role for judiciary in adjudicating matters of personal laws. It appeared to have silently, cautiously and wisely thrown the ball into the legislature’s domain to deal with this hot-potato issue. Hence, it is now up to the legislature to apply its wisdom and assess whether it makes sense, at this juncture, to venture out into this space or not. It is also up to the government to evaluate cost-benefit of such a contentious move and assess whether the fastest growing economy of the world immediately needs such a wide-ranging social reform to support economic growth.
The government needs to apply its mind and examine whether people could come around to some kind of a working consensus on the subject. The government’s hands are already full with impending challenges and matters of immediate high priorities such as – stabilising the dwindling economy following the dual shocks of demonetisation and GST, getting double digit economic growth back on track, keeping inflation and fiscal deficit under control, providing corruption-free effective governance, eradicating black money from the system, providing investment- and entrepreneurship-friendly environment, facilitating creation of adequate number of jobs, accelerating Make-in-India and Skilling India initiatives, shoring up and protecting income of farmers, expanding irrigation infrastructure and mechanisation of agricultural processes, providing for adequate and sustainable environmental protection, beefing up internal security and effectively dealing with constant threats from across the borders, eradicating poverty and ignorance, providing education for all, empowering and enabling citizens towards equity and social justice, providing basic amenities of 24X7 electricity, safe drinking water, affordable housing, basic healthcare, sanitation, etc. In the backdrop of an inefficient, corrupt, colonial-era governance structure, all of these are well-articulated top priority goals before Prime Minister Modi and his government.
Therefore, likelihood of this ambitious social reform initiative of UCC appears to be extremely slim, in the interim. Moreover, without an underlying conducive environment, lack of socio-political consensus, embarking upon it looks imprudent, impractical and improbable, to say the least. For the present, despite long pendency of cases and a clogged/costly justice delivery system, there is still a stable functioning system with uniformity in many critical areas of civil jurisprudence like contracts, property transfer, labour, taxation, commercial transactions, etc. Criminal jurisprudence is already uniform across the country.
Before the contentious matter is launched into national public discourse, interim prudent steps like pursuing confidence building measures through inter- and intra-community dialogues, forming expert committees to analyse present gaps and to learn from similar examples in other societies, mandating expert committees to explore common grounds and opportunities and to examine feasibilities may be some worthwhile and healthy steps towards that direction.
Assessing challenges and threats, evaluating implications and exploring opportunities are going to be long drawn out and difficult processes. Till then, the nation and its citizens can breathe easily and the government can rather focus on improving and strengthening the existing justice delivery system, on upgrading the required physical infrastructure and processes, on fast-tracking of pending cases and dispensing of speedier cost-effective justice, on driving peaceful and amicable resolution of family disputes by strengthening of mediation and conciliation framework, on effective gender sensitisation and on empowering of women and the weak/poor, on upholding of cherished constitutional values, on strengthening of cooperative federalism on ground and on reinforcing unity in diversity across the country.
All of these shall only enable and strengthen a progressive, strong and harmonious society that this developing nation so earnestly needs today to carry on its march forward without any distraction or disruption.