The Indian Constitution desires and aims for a Uniform Civil Code (UCC) for its citizens. Harmony, unity, uniformity, 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 (UCC). For instance, pursuit of universality in the rights of daughters & sons in property inheritance, commonality in the duties of sons & daughters towards parents, common grounds for adoption & divorce across communities and religions, rights of partners in live-in relationships and of their children, legalisation of marriage & succession rights in LGBTQ community, reform and commonality in practices amongst Scheduled Tribes, banning of regressive & unjust social practices such as polygamy & polyandry across communities, commonality in the maintenance rights of women after divorce across communities & regions, etc. are some of the relevant but complex goals to attain in this space.
Guided by constitutional values of equality, liberty and dignity of the individual, the pursuit of aforementioned objectives and other commonalities in personal laws of marriage, divorce, inheritance, succession, adoption, etc. within and/or across religions & communities would be ideal and natural goals towards a just society in a progressive and developing nation of such diversities, pluralities & potentials, like India. Whether the Uniform Civil Code (hereafter, referred to as UCC) should take the path of uniformity within the personal laws of a community or should adopt the path of commonality amongst the personal laws across communities or should follow an optimal mix of both i.e. whether the reforms be brought in within the personal laws of each community and also amongst the personal laws of different communities, are some of the relevant and tough questions that would need carefully studied and analysed answers before the arduous & complex UCC exercise is taken up.
Although the spirit and intent behind “One Nation One Law” in a vibrant Constitutional democracy like India is worth appreciating, the task has never been easy due to the difficulties & complexities involved. Back in those days, the Constituent Assembly, comprehending the benefits along with the complexities attached to this idea, had vigorously debated the subject of UCC at length. The founding fathers, after strong arguments and much deliberations, ultimately decided not to go ahead with uniform personal law as a justifiable right in wake of severe opposition from the Muslim members. The then socio-economic and political conditions in the country were also not in favour of such a social reform.
In fact, KM Munshi, the then member of the Constituent Assembly and also of the Drafting Committee of the Constitution of India (hereafter, called as Constitution) which was headed by Dr.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 UCC. 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/uniform civil code in many aspects of human relationships - like transfer of property, contracts, etc besides a uniform and complete Criminal Code – Indian Penal Code (IPC) & Criminal Procedure Code (Cr PC). So why not include personal laws as well. However, he later modified his stand 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 Quran and not as per any other law book. They asserted that personal laws were part and parcel of their religion & culture for ages, and their right to personal laws was a fundamental right.
The Muslim members of Constituent Assembly also argued that UCC in matters of marriage, divorce, succession and inheritance would be tyrannical to minority rights. Given such 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 i.e. under the Directive Principles of State Policy (DPSP) which are not enforceable by any court of law.
Later, Nehru also conceded to this opposition on the issue of UCC and hence, UCC, as a future desired goal for the nation, found a place under the Directive Principles which were supposed to be the guiding & fundamental principles of governance. Under the then Article 35 and now Article 44 of the Constitution, the founders finally left it upon the State to endeavour and to apply these principles in making laws towards securing UCC throughout the territory of India and to bring that desired change for its citizens, in the future.
Since the early '50s, varying degrees of socio-economic and political conditions – illiteracy, ignorance, poverty, climate of hate & divisiveness (in the backdrop of partition), religious & sectarian differences, traditions, cultural practices, regional differences, 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 have been made – 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 year 2005 Amendment in Hindu Succession Act, 1956 that daughters were allowed equal rights to coparcenary property as sons and that, women could also legally be the 'karta' of Hindu Undivided Family (HUF).
Thus, even after long years of codification, the Hindu Code has continued to being amended on a time to time basis and the reasons are understandable. The dynamic & 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, non-discrimination and human dignity) in matters of personal laws, the critical need to harmonise differences in practices within the Hindu community - all of which, called for the nation to respond to these tough questions and challenges, as and when it was possible to do so, in order to march forward as a progressive and just society.
However, these reforms in Hindu personal laws 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 & practices, existence of divisions within the community on various lines, regional differences in customs & traditions, varying tribal practices, changing and evolving face of the society with time, etc would have all led to such contentions and difficulties towards codification of Hindu Personal Laws and its subsequent 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 contradictions, conflicts and competing contentions from within. No wonder, an endeavour to forge similar uniformity by means of UCC across communities & regions, now, would amount to a humongous social and political challenge along with 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 the Sunnis like Ithna Asharia, Ismailia, Hanafi, Maliki, Hanbali, Shaafei, etc – along with the fact that each of these schools has its own set of jurisprudence, forging some kind of a consensus amongst these sects, could be very difficult and complex exercise. It is only a matter of speculation if various traditions and sects within the Muslim 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, this 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 worth its salt 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 earlier made to the 21st Law Commission by a group of eight individuals. It is yet not known how credible was that Draft as the Commission never recognised or endorsed its existence and credibility. Interestingly, 21st Law Commission - headed by a former Supreme Court Judge BS Chauhan did examine the UCC subject in detail over the period 2016-18. It did also solicit views & ideas from various stakeholders across the country to comprehend and to explore the feasibility and desirability of UCC.
Finally, in the year 2018, the same Law Commission came up with its Consultation paper titled “Reforms of Family Law” wherein, it concluded that the “formulation of a Uniform Civil Code (UCC) is neither necessary nor desirable at this stage”. The Commission in this Report held that “mere existence of differences does not imply discrimination, but is indicative of a robust democracy”. It further highlighted that most countries are moving towards the recognition of differences in place of legal provisions that are founded on uniformity between culturally diverse people - as these are unfair to the weaker and vulnerable sections of the society. Law Commission in the same Consultation paper underlined that rather than enacting a UCC, family laws of every religion must be reformed to make them gender-just. It spoke about the uniformity of rights, and not of laws. The Commission’s Consultation paper further emphasised that celebration of diversity must not disadvantage specific groups and “women must be guaranteed their freedom of faith without any compromise on their right to equality”.
The Consultation paper, then proceeded to recommend a series of reforms in the personal laws of all religions as well as in the secular laws which place women and children, at a disadvantage. However, since August, 2018 nothing much has been done by the Union government in regards to those recommendations of 21st Law Commission. Recent media reports, however, suggest that a Committee - set up by the government of Uttarakhand (a small State of about 1.3 crore people) under a former Supreme Court Judge Ranjana Desai, has examined the UCC issue specifically for the State and after long consultations with stakeholders in Uttarakhand, is in the process of producing a UCC Draft - specifically meant for the State. However, the reported Draft is yet to see the light of the day.
Given the AS-IS situation wherein Uttarakhand and a few other States have announced their intent to frame UCC for their respective States, it becomes imperative to briefly look at some of the related aspects – specifically with respect to UCC as enshrined under Article 44 of Constitution, in order to have a reasonable understanding of this constitutional goal and of the jurisdiction, thereunder. Firstly, does the word “State” under Article 44 also include within its meaning, the jurisdiction of individual States (along with arms & instruments of those individual States) towards legislating & endeavouring towards their own specific set of UCC in their States. Are individual State governments/legislatures (and their arms & instruments) - as understood within the meaning of “State” under Article 12 of the Constitution, are also to be understood and included within the meaning of “State” enshrined under Article 44 of Constitution.
In other words, does the Constitution put the onus of achieving uniformity in personal laws (UCC) as enshrined under Article 44 (Directive Principles) on the legislature and executive of both the Union & individual States. Does the Constitution through Article 44, provide for each individual State to also be aiming for uniformity in its own specific personal laws i.e. legislating and implementing State specific UCCs within the boundaries of the individual States. Is the goal of achieving “uniformity in personal laws” through UCC legislation and implementation, as enshrined under Article 44, a desired future goal for the individual States as well or is it just the mandate for Parliament and Union government - which have jurisdiction over the whole territory of India
Hence, is the “State” as enshrined under Article 44 equal to or same as the “State” enshrined under Article 12 of the Constitution. The “State” under Article 12 encompasses not only the Union and State legislatures & their governments but also all other executive arms & instruments of the State - including all local & other authorities existing/operating within the territory of India or under the Union/State executive control. In other words, the canvas or scope of “State” under Article 12 is much wider and more expansive - as compared to the limited “State” under Article 44 of the Constitution.
Moreover, does the Constitution, through the meaning under Article 44, expect the individual States (besides the Parliament/Union Government) to be legislating and endeavouring on UCC over “the whole territory of India” - besides their own States. Interestingly, individual States do not have any authority or jurisdiction, under the Constitution, to legislate on any subject for other States or to implement their State laws, beyond the territorial boundaries of their own States.
Also, do the two phrases - “State shall endeavour” and “throughout territory of India” - as enshrined under Article 44 of Constitution, have to be read together and in conjunction with each other or can both the phrases be read separately in relation to the UCC, as a goal for the “State” under Article 44. If both the phrases have to be read and understood together in conjunction with each other, then, clearly the founding fathers were aiming for the Parliament & the Union government (and not the individual States) to be endeavouring for UCC, across the length & breadth of the country. If at all, the two aforementioned phrases under Article 44 can be read separately and by themselves, then, the meaning of “State” under Article 44 may perhaps include the individual States as well. But then, can Article 44 be broken into parts and then, be read & understood separately or are these two phrases in Article 44 intertwined, have to be read together and are to be understood in a conjoined manner. It may be pertinent here to mention here that specific subjects, wherein, the Constitutional objective is to address a national need or to achieve uniformity of laws and in their applicability throughout the territory of India, are included only in the Union List (List I of the Constitution) and those laws/rules & regulations can only be enacted by the Parliament & the Union government and not by the State Legislatures or State Governments.
Subjects wherein, local efforts by the individual States are to be promoted, or diversity and specificity of the needs of individual States are to be recognised and where such diversities are to be protected, or where legislation by individual States is often desirable are included under the Concurrent List (List III of the Constitution). This allows the individual States to not only address their specific needs, traditions & practices/customs but also to legislate on their State specific laws. Moreover, subjects wherein, it is equally necessary for the Union to have legislative jurisdiction so as to secure uniformity of principles of law, are also included under the List III of Constitution. Those Subjects where enactments by individual States could amount to a mischief which extend to or may extend to beyond the boundaries of the individual State/s, are also included under the Concurrent list - thereby allowing the Union to take corrective measures and effect remedies.
The individual States, however, do not have any legislative jurisdiction or competency beyond their territorial boundaries, on the subjects under either State List (List II) or under Concurrent List (List III) of the Constitution. All matters or issues or subjects of governance & policy that require uniformity of applicability throughout the territory of the country, are anyways included in the Union list (List I) of the Constitution, wherein, no individual State has any jurisdiction or competency to legislate. It is only the Parliament, the Union government and its arms/instruments which have the jurisdiction to legislate or frame rules & regulations, over the Union List subjects for the “whole of territory of India”. Wherever there is a conflict between Central and State laws on any particular subject under List III, it is the Central Law which prevails over the State law. The residuary powers of legislation in this quasi-federal set up, rest with the Union, anyways.
Therefore, the Concurrent List is primarily meant to promote legislation by individual States catering to their State specific needs and, on occasions, to permit non-conflicting variations of Central laws in order to address the local needs. For instance, uniform laws in personal law space, applicable throughout the territory of India e.g. codified laws – Hindu Marriage Act, Hindu Adoption & Maintenance Act, Hindu Succession Act, or the Special Marriage Act, etc were enacted by Parliament and not by any of the individual States. However, personal law being a Concurrent List subject (under entry 5), further enactments on individual State specific customary practice or age-old tradition or a requirement - which needed recognition and legislation, were carried out by State legislatures, as well. In post-independent India, several such State specific laws catering to local needs were enacted by individual State legislatures over the past seventy five years e.g. TN Hindu Marriage Amendment Act, Punjab Anand Marriage Act, Punjab Marriage Restraint Act, TN Marriage Registration Act, Andhra Pradesh Compulsory Marriage Registration Act, etc.
It may be worthwhile to reiterate that personal laws are included under entry 5 of the Concurrent list of Constitution - allowing for the individual States (besides Parliament/Union government) also to make their own laws/rules & regulations on matters of - marriage, divorce, succession, adoption, etc, specific to their States, on as and when required basis. Individual States, across the country, have various diversities and complexities in terms of their personal laws, customs, traditions & practices and requirements, which are specific to their States. At the cost of repetition, it may be underlined here that by virtue of inclusion of personal laws under entry 5 of the Concurrent List, the Constitutional objective has clearly been to recognise the diversity (cultural customs, usage & practices) which exists within the individual States and to enable the individual States to protect that diversity. However, does this mean that individual States, by virtue of personal laws inclusion in entry 5 under List III, can automatically extend their authority to achieve uniformity in their State specific personal laws and can disregard the constitutional goal of protecting diversity in there. Does this not, amount to going against or acting contrary to the Constitutional objectives of keeping personal laws under the Concurrent list and to the goals of Article 44.
If the objective of the Constitution was also to expect the individual States to be endeavouring towards UCC in their States, then, wouldn’t the inclusion of personal laws under entry 5 in the Concurrent list become totally contrary to such an objective and thus be redundant. For arguments sake, had the Constitution mandated individual States to be endeavouring towards uniformity in their personal laws and towards UCC in their States - by means of entry 5 of Concurrent list, then, many States may well have already attempted it by now. But then, why would they have endeavoured to do that in the first place. It didn’t make sense for them - given the age-old cultural diversities in matters of personal laws, customs & practices, etc. and dearly held by the people in those States. Naturally, there was a need amongst the people to protect those customs & traditions, especially in the Tribal inhabited areas. This diversity in social & religious practices, customary laws & traditions, etc. and the need to protect the same is clearly recognised under the Constitution vide its various provisions.
The Sixth Schedule of Constitution and subsequent judicial pronouncements provide for an exclusive autonomy to the tribal people over law making and administration of certain tribal areas in the North Eastern States of Assam (North Cachar, Karbi-Anglong, Bodoland Territorial Area), Tripura (Tripura Tribal Areas), Mizoram (Chakma District, Mara District, Lai District) and Meghalaya (Garo Hills District, Khasi Hills District, Jaintia Hills District). The jurisdiction & authority of those Tribal District & Regional Councils to make their own laws and to administer themselves include the subjects of succession & inheritance, marriage & divorce, social customs, transfer of land ownership, etc. This special arrangement of autonomous self-government in North East Tribal areas under the Sixth Schedule of Constitution is essentially to recognise the fact that the tribals in aforementioned areas of these four North-Eastern States are deeply rooted in their age-old customs, culture & civilisation and the Constitution aims to protect this diversity.
Apart from the aforementioned special arrangement of autonomous Tribal Administrative bodies under the Sixth Schedule, additional provisions of the Constitution provide for protection of some of other State specific tribal traditions, customary law & procedure, religious & social practices, etc. in personal law domain and at times, extending to criminal law (in a few cases) as well e.g. Article 371A, Article 371 G, etc. Under these provisions, no Act of Parliament in personal law space applies to those States unless the State legislature passes a resolution to that effect. For instance Article 371-A applies to State of Nagaland, Article 371-G applies to State of Mizoram and so on and so forth. Therefore, there was no need to protect such diversity in Tribal areas by means of these aforementioned provisions if the individual States were constitutionally mandated to achieve uniformity in their State specific customary laws & traditions. If at all, achieving uniformity in personal laws by the individual States was an imperative for the founding fathers and if it was a Constitutional mandate, then, personal laws may well have been made part of only the State List (List II) and the Parliament/Union government wouldn’t have got the powers to legislate on such matters. In such a scenario, Article 44 may well have not found out a place under the Directive Principles of State Policy which are, by the way, guiding principles of governance throughout the territory of India. However, Article 44 actually did and did rightly so, in the context of need, time & space.
Clearly, UCC under Article 44 is a future goal for the “State” to strive for and to endeavour upon towards its implementation - throughout the territory of India. Hence, it may be reiterated that UCC is a goal for the nation and NOT for the individual States to endeavour upon - on their own or by themselves. The word “State” under Article 44 clearly mandates only those arms/instruments of the “State” (of Article 12) which have jurisdiction to legislate & implement laws throughout the territory of India. Individual States do not have the legislative or executive jurisdiction beyond the boundaries of their respective States. Article 44 read in conjunction with Article 12 along with entry 5 of Concurrent List, clearly leads to a studied conclusion that the Constitution aims for the Parliament, the Central government and its arms/instruments which have nationwide jurisdiction (in matters of both legislation and implementation of laws, rules & regulations ), to endeavour and to strive upon for UCC.
It is therefore abundantly clear that individual States have territorial and legislative limitations as far as their jurisdiction with respect to UCC and its implementation throughout the nation, is concerned. At the risk of repetition, it can be safely reiterated here that the constitutional duty of recognition & protection of diversity in personal laws within individual States is assigned to both - the individual States as well as to the Parliament/Union government - by means of entry 5 of Concurrent list, while the constitutional duty to endeavour towards uniformity and to implement UCC throughout the territory of India, is mandated only upon the Parliament and on the Union government & its arms/instruments, by means of Article 44 (under the Directive Principles of State Policy).
Another relevant constitutional aspect of UCC that needs to be dealt with is whether the Constitution mandates UCC as Uniform Civil Code (by exploring uniformity) or does it mean a Common Civil Code (by exploring commonality). Does the Constitution strive for “reform through uniformity” between personal laws of different religions & communities through UCC or does it aim for “reform through commonalities” within the personal laws of each community through UCC or does the Constitution mandate the “State” in Article 44 to explore an optimal and pragmatic mix of both uniformity and commonality for UCC. Reforms through Uniformity, between the diverse personal laws of each community, for obvious reasons, shall always be a tougher, more contentious & more complex exercise compared to finding common grounds & commonalities within the diverse personal laws of each community. Thus, there are many such tough questions and key considerations on this highly contentious and vexed issue, to be dealt with. The 22nd Law Commission and the Union government, if seized of the UCC matter, would certainly be required to comprehend the complexity, gravity and scale of the task and to be cognisant of the need to patiently apply their minds before taking a call and initiating a nationwide public discourse on UCC which could be a precursor to a possible Draft of UCC for the whole nation.
At the moment, there isn’t any credible UCC Draft in the public domain. However, if at all. there exists any, then it will be interesting to find out how the uniform code (UCC) would treat existing personal laws of communities and of sects, within & across the communities and 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 contents of personal laws of one or the other community would be made to prevail over the others.
Also, it is yet 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 UCC would treat customary marriage practices in our Scheduled Tribes like Santhals, Nagas, Mundas, Kurumas, etc.; Or how UCC 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). In such cases, presence of a priest is not necessary for the performance of a valid marriage. Secondly, parties can enter into a marriage in the presence of relatives or friends. And finally, marriage can be completed just by a simple ceremony requiring parties to either 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 various Quranic methods of Talaq for valid dissolution of marriage between two Muslim parties. Questions will also arise as to how a common civil 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 UCC 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 today. 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 (HUF) as most of the trading and business persons & their families belong to HUFs; 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, or how UCC would deal with the existing differences & complexities in the treatment of inheritance by location of the individual under the four regional Mitakshara schools - Madras, Banaras, Mithila, & Bombay, and so on and so forth.
Matters, such as reconciling differences in inheritance laws between Hindus and other communities such as - '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 of specific inheritance rules as enshrined in the Quran, are going to be absolutely contesting and tricky. With civil matters of marriage, succession, divorce being on the Concurrent List and with several States (especially in South) having enacted parallel or additional laws in these areas of social relations, reconciling differences between state laws and central laws could also pose difficulties of some degree.
Therefore, there are too many important questions to reflect upon before such a vast & complex nationwide project of UCC is embarked upon in a vibrant democratic set up with such diversity. Some of the critical and practical 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 & succession code; are the Centre & the States on the same page as far as the need to move forward on this vexed matter; is reconciling of divergence in existing central & 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 over personal laws based on religion 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 social reform of such scale and complexity would lie.
Given the fact that personal laws are matters of deep faith, founded in theology, age old customs, practices & 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 perhaps even be considered by some as imposition of one dominant personal law (as the common personal law), over all others.
Without a doubt, Uniform Civil Code (UCC) is easier said than done in a democratic and federal 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 itself and also between the communities on various counts, and with a maze of varying personal laws existing across regions & States, the probability of effecting uniformity/commonality in personal laws, although desirable & beneficial, 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. The divisive political rhetoric and a fear of majoritarianism amongst some, may not help the cause as well. In a vibrant democratic set up that India is, there would be an underlying need to build a consensus on the subject and to carry everyone along on this matter, and which is a herculean task in itself.
There are also 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 wherein, it cautiously adopted 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 or not.
The emphatic majority view of the Apex Court's Constitutional Bench in Triple Talaq case 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 hurdles to any UCC passing the judicial muster, in the near future.
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 Union government to evaluate cost-benefit of such a contentious move and to assess whether a pandemic ridden economy which has just started recovering back its lost ground, needs such a wide-ranging social reform to support social change.
The government needs to seriously apply its mind and examine whether people could come around to some kind of a working consensus on this sensitive subject. The government’s hands are already full with impending challenges and matters of high priorities such as – stabilising the economy following the recent shocks of a terrible pandemic and inflationary pressures; inspiring and shoring up consumer confidence; kickstarting capital investment on ground; getting economic activity back on fast track trajectory; bringing down inflation & fiscal deficit; providing business and entrepreneurship friendly environment; shoring up physical infrastructure; ushering in much needed labour market & land reforms; disinvesting shortlisted public sector banks & loss making PSUs; formulating policies and executing measures towards employment generation; getting required health infrastructure ready on time for any possible pandemic strike in future; protecting farmers' interests; expanding irrigation infrastructure; mechanisation of agricultural processes; dealing with the Chinese incursions; beefing up internal security and effectively dealing with constant threats emanating from across the borders; bringing back much needed normalcy in Manipur, etc.
Constant priorities of reducing poverty; dealing with inequality & discrimination issues; providing education for all; empowering and enabling the disadvantaged; providing basic amenities of 24X7 electricity, safe drinking water, affordable housing, basic healthcare and sanitation to all; etc. continue to remain very much on the government's radar. In the backdrop of an inefficient, corrupt, rusty, colonial-era governance under-delivering structure, all of these remain well-articulated top priority goals before Prime Minister Modi and his Cabinet for timely policy interventions, execution and delivery. Moreover, this is a general election year and there will be election specific dynamics at play as well, and which would have their own competing demands of time & resources requiring political leadership’s attention.
Therefore, given the wisdom and political maturity available with the present party in power, the likelihood of this ambitious social reform of UCC appears to be very slim, in the interim. However, with general elections on the way, there could be some increasing noise and rhetoric about UCC, in order to effect some polarisation on either side in the ensuing political slugfest. And that should be all about UCC, in the interim. Moreover, without underlying conducive conditions & environment, absence of adequate ground work & preparation, lack of due diligence and absence of any sort of broad socio-political consensus, embarking upon such a socially disruptive move looks totally imprudent, impractical and improbable right now, to say the least. For the present, despite long pendency of cases and a heavily 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 this heavily contentious matter of UCC is launched into national public discourse, interim prudent steps like pursuing confidence building measures through inter & intra-community dialogues; engaging with religious community leaders towards exploring & understanding the possibilities of uniformity vis-à-vis commonality; forming expert committees to analyse present gaps & to learn from similar examples in other societies; mandating expert committees & sub-committees to explore common grounds & opportunities both within & outside the communities and to examine feasibilities of a successful disruption; etc. may be some worthwhile and healthy next steps in that direction. In order to initiate a meaningful public discourse on the vexed matter of UCC and to develop a broad political & social consensus on the need to separate social relations and personal laws from religion so as to have common secular laws for all on marriage, divorce & inheritance, etc, an initiative on UCC can only be made, after enough reality check and groundwork.
Assessing challenges and threats, evaluating implications, doing due diligence and exploring opportunities - all of these are going to be long drawn out and difficult processes. Till then, the nation and its citizens may breathe easily and the government may rather utilise the time to focus - on improving and strengthening the existing justice delivery system; on upgrading the required judicial physical infrastructure and processes; on fast-tracking of pending cases; on dispensing of speedier cost-effective justice; on driving peaceful and amicable resolution of family disputes by strengthening the mediation and conciliation framework; on effective gender sensitisation; on empowering of women and of the 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 not only help the nation avoid unnecessary distraction & diversion for now, but shall also enable and strengthen a progressive, strong & harmonious society that this growing nation & its economy so earnestly need, to get back on track and to carry its march forward. Prudence, pragmatism, practicality, caution, diligence, homework, pause, timing, inclusion & dialogue are all critical elements of such a disruptive exercise. Given the AS-IS situation on ground, prudence & pragmatism call for a cautious & diligent pause before embarking on such a societal endeavour. Haste and partisan approach can never be in aid of such a reform. After all, at this scale and complexity, nothing in haste would really work. The key to success lies in a patient & holistic consideration of all aspects of this complex issue, in in exploring common grounds, and in hearing all stakeholders involved - so as to take care of their genuine concerns & insecurities. It would be an understatement here, that a conducive environment is an imperative for the nation, before such a disruption is launched. As they say - Always the Nation first. And Nation is always about the People, first. This endeavour, therefore, may commence where it must always begin – putting the interests of People, first. Top-down approach has little utility, anyways, in matters of social reforms of such scale & complexities, and that too, in a democracy. Political maturity, sagacity and wisdom would always dictate proactiveness in weighing in of the pros & cons before embarking on such a societal endeavour. A pause of prudence & pragmatism, therefore, appears to be practical and an imperative, too. It should serve well here.
No comments:
Post a Comment