A code fair to all faiths and genders is more important than UCC
A nation as complex as ours calls for an endeavour beyond politics towards inclusion, collaboration and judicious deliberation.
Moves made by the 22nd Law Commission and strong comments by Prime Minister Narendra Modi have pushed the fractious debate on the Uniform Civil Code (UCC) off the backburner. With the Constitution categorising UCC in Article 44 as an aspirational goal of the directive principles of State policy, the previous Law Commission circumnavigated certain hard realities. Staring at a potential conflict between existing personal laws relating to succession, marriage, divorce, maintenance, alimony, adoption and guardianship of children, it felt UCC was not desirable and feasible for a country as diverse as ours. This conclusion may now be put to the test.
Political parties are still firming up their stance on the issue, but the Supreme Court (SC) has weighed in on UCC on several occasions in the past. In the 1985 Shah Bano case, the SC held that Muslim women were eligible for maintenance and further said that UCC will help the cause of national integration by removing “disparate loyalties to laws which have conflicting ideologies”. A decade later, in Sarla Mudgal v. Union of India, the SC directed the law ministry to reflect on steps taken and efforts made by the government towards UCC. But in Pannalal Bansilal Patil v. State of Andhra Pradesh in 1996, the SC cautioned that a uniform law, though desirable, could be counter-productive to national unity and integrity if enacted in one go. “In a democracy governed by rule of law, gradual progressive change and order should be brought about, making law or amendment to a law is a slow process,” the court held.
In John Vallamattom and Ors. v. Union of India (2003), the SC ruled that there is no necessary connection between religious and personal laws in a civilised society.
The proponents of UCC argue that it endeavours to erase discrepancies in personal laws and enables gender justice and equality for all citizens, in consonance with Articles 14 and 15 of the Constitution. Its objective is not to provide a uniform method of practising religion but only laying down a uniform set of laws concerning issues of marriage, succession or alimony, they say. But, in effect, the latter means no less than the former. For instance, while adultery is grounds for divorce for Hindus, Christians and Parsis, it is not so for Muslims. Similarly, impotence is grounds of divorce for Hindus and Muslims, but not for Christians and Parsis. Even the issue of underage marriage is grounds of divorce for Hindus, but not for Christians, Parsis and Muslims. These inconsistencies can create a legal conundrum.
Eliminating personal laws and practices such as polygamy, nikah halala, mutah and misyar marriages – which are purportedly established on the foundation of religious beliefs – is yet another goal of the code. But can personal laws, which are not even completely codified (in Muslim law, for instance), in a country with 1.3 billion people and six major faiths ever be homogenised at the ground level? And will such a code address the issue of (non) recognition of rights of live–in interfaith couples?
A third question is whether UCC is the only way to weed out discriminatory practices in personal laws, especially when all religious practices, customs and beliefs are amenable to judicial review (think of the Sabarimala temple entry issue or instant triple talaq) for violation of fundamental rights. With varied traditions of marriage and different personal laws directing distribution of ancestral property, it will be a humongous task for the legislature to address various social conundrums by eliminating inadequate and dissimilar laws in the Indian legal mechanism, while being mindful of the conflict of mandatory enforcement of Article 25, which calls for the freedom of conscience and the right to freely profess, practice, and propagate a religion of choice. UCC’s objective may be noble, but will it really increase social harmony, promote gender justice, and empower women and other vulnerable groups in India? Can gender justice be divorced from social harmony and religious tolerance?
It is clear that a just and equal code – for all genders, religions and faiths in India – is far more important than a uniform code. At this stage, how and when such a code can be enacted are, perhaps, more contentious issues to handle. Awareness and education of the people regarding the objectives of UCC and its pace of implementation are two key discussion points. A piecemeal fashion of gradual implementation could be more acceptable. The Goa model already exists – compulsory marriage registration (even inter-faith), prohibition of polygamy or bigamy, uniform age of marriage, consent of men and women for marriage, guardianship of children for both mother and father, and consent of both men and women to attain lawful separation can emerge as consensus points. A nation as complex as ours calls for an endeavour beyond politics towards inclusion, collaboration and judicious deliberation.
Zakia Soman is co- founder, Bharatiya Muslim Mahila Andolan. Shriya Maini is an advocate–on–record at the Supreme Court. The views expressed are personal