With Kerala becoming the second state to pass a resolution against the Uniform Civil Code (UCC) after Mizoram, and the Law Commission of India sifting through roughly five million responses on the possibility of a common code, it can be easy to forget that despite a swirling political debate on the contentious issue, there is no draft law or proposal in circulation. The debate on UCC is old, and has remained alive since Independence because of Article 44 of the Constitution, a part of the non-justiciable directive principles of State policy, which states that “the State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India.” Apart from political utterances, the only concrete proposal has come from the parliamentary panel on personnel, public grievances and law and justice, whose chief, Bharatiya Janata Party MP Sushil Kumar Modi, has made two suggestions — enact a uniform code, but keep tribal communities and the northeastern states out of the ambit of any proposed law.
Is this workable? Unfortunately, such a course might be fraught with legal ramifications. Any tweaks for tribal communities, and not for others, will violate the literal meaning of Article 44, which requires a “uniform” code “throughout the country”. The meaning of “territory of India” is set out in Article 1 of the Constitution. Exempting tribespeople from the ambit of a common law shall amount to defining the “territory of India” in a manner contrary to Article 44.
The other legal challenge might come from excluding the scope of various religious customs that have the force of law as defined in the chapter on fundamental rights. The rights with respect to religious practices guaranteed in Article 25 or 26 will also step in. But the inclusion of customs is a risky exercise that needs to be done carefully. When the State was drafting India’s secular marriage law, the Special Marriage Act, in the 1950s, it borrowed significant provisions such as the degree of prohibited relationships and the applicability of the Hindu Undivided Family (HUF) concept from the Hindu Marriage Act, which itself was formulated out of Hindu rituals and practices. And still, it was called a secular law. Thus, the religious practices of the dominant faith found echoes in an avowedly secular law. Any proposed common code will need to be cognisant of this.
The framing of the UCC debate is always in stark terms — gender justice versus the apprehensions of minorities, especially Muslims, who feel that while legislating on crucial issues touching their rights, the executive and institutions have not been fair to them. Two issues encapsulate this dilemma — succession of property rights and marriage. While it remains to be seen how the government decides on these issues, three key verdicts are likely to become the basis of any draft.
The first is Sarla Mudgal vs Union of India in 1995, where a Hindu married man committed bigamy and solemnised a second marriage without dissolving the first, by converting from Hinduism to Islam.
The verdict spoke of the conflict between personal laws of various decisions and the court said that without the first marriage dissolved under the Hindu Marriage Act, the second marriage would have to be voided. This verdict is often cited as highlighting the need for a common code in India because the judge appeared to ask the government to look towards creating UCC.
But the core issue here was that despite a law prohibiting Hindus from indulging in polygamy, it had little effect. Census data also shows that practices of polygamy exist outside Islam.
The second is John Vallamattom vs Union of India in 2003, when the apex court ruled in favour of a Christian priest who argued that a provision of the Indian Succession Act was unconstitutional because it imposed arbitrary restrictions on Christians donating their property to charity. The third is the 1996 Madhu Kishwar vs Union of India where the court weighed in on a tribal woman’s right to inherit property.
The political push for UCC wants to create a homogeneous class of citizens in a culturally and religiously diverse society. But such homogeneity is tricky legal terrain.
In a landmark 2002 judgment on minority rights, the top court observed, “Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved so that when pieced together it goes to form a depiction with the different geographical features of India.” Those who feel creating homogeneity in India is an imperative, need to be reminded of this.
MR Shamshad is an advocate, Supreme Court. The views expressed are personal
