Bishwajit Bhattacharya

Oct 25, 2015, The Asian Age

This article appeared in Asian Age magazine on Oct 25, 2015.

Article 44 of the Constitution of India stipulates that the State shall endeavour to secure for the citizens a uniform civil code (UCC) throughout the territory of India. Article 44 is in Part IV (Directive Principles of State Policy) of the Constitution, which is not enforceable by any court, but the principles enunciated therein are fundamental to the governance of the country. This is the mandate under Article 37, which also stipulates : “It shall be the duty of the State to apply these principles in making laws”. Three crucial words in Articles 37 and 44 are: “endeavour”, “fundamental” and “duty”. First, the endeavour of the State shall be to secure UCC for citizens; second, the principles of the UCC are fundamental to the governance of India; and third, the duty of the State is to apply the principles of UCC in making laws. “Duty” of the State to make laws is the crux of the matter. Regretfully, no law on UCC has been made for 65 years. This is where the State in India has failed singularly.

Not only has no law been enacted on UCC, but the principles of UCC have so far been sidelined and ignored. Judicial pronouncements have not helped either, since courts have only reiterated the principles enshrined in Article 44. Of course, courts could not have issued mandamus on Directive Principles of State Policy, since they are not enforceable. In fact, the founding fathers of the constitution had placed trust in the wisdom of the executive and the legislature to enact UCC without contemplating judicial intervention. But this trust has proved misplaced. Every Government has dithered and a UCC remains a teasing illusion for the citizens of India. The matter has festered for far too long.

Two weeks ago, the Supreme Court of India once again gently prodded the government on the matter. The Court questioned the Government as to why it had not framed and implemented a common civil code so far. The judiciary has once again wrested the initiative on a subject that is in the realm of governance. This is judicial statesmanship and must be lauded. The government should rise to the occasion to satisfy Article 44. The issue is of seminal importance to building an egalitarian society. UCC reflects the basic tenets of equality ingrained in the Constitution.

But what does a Uniform Civil Code really mean? UCC is simply a national civil code applicable to all citizens, irrespective of his/her religion. In India, civil laws and criminal laws are common to all citizens. But in matters governing rights and duties/obligations pertaining to property, land, inheritance, succession, civil liberties, civil rights, marriage, divorce, maintenance, restitution of conjugal rights, desertion, adultery, cruelty, adoption and custody of children, guardianship, etc., different religions have different laws. This has been creating multifarious problems socially, culturally, administratively, economically and even judicially.

A common civil code is an imperative in the interests of equality, justice, and the unity of the nation.

Socially and culturally, some citizens are feeling victimised/aggrieved, just because they practice a particular religion; their religious beliefs/faiths are being transmuted into the vicissitudes of personal law based on religion.

Administratively, the State is unable to enforce the law evenhandedly. For example, polygamy is permitted under the Muslim personal law but is a crime under Hindu law. In fact, we have seen in the past that non-Muslims started converting to Islam merely to indulge in polygamy while escaping its consequences. This practice was thwarted by the Supreme Court in the Sarla Mudgal case.

Economically, the State is unable to be consistent: through the device of the Hindu Undivided Family (HUF), Hindus are getting tax exemptions, while Muslims are exempt from paying stamp duty on gift deeds since such deeds are not required to be registered. These fiscal exemptions/incentives have not been extended to people of other religions. So, there is a sense of discrimination.

Judicially, courts are being clogged with multiple cases on the same set of facts, but different verdicts are being delivered on the touchstone of different personal laws, based only on religion. Politically, the situation is being exploited to the hilt by politicians and political parties to indulge in vote-bank politics.

This is a grim situation. Therefore, a common civil code is an imperative in the interests of equality, justice, and the unity of the nation.

But legislating such a code will be a herculean task. The government has to be extra careful not to trample upon the constitutional rights of religious minorities. They will have to be convinced that the UCC is not being used to impose the will of the majority community upon them overtly or covertly.

The government must also travel the extra mile to assuage the sensitivities of all concerned – minority as well as majority – and win their confidence before pushing through such a code. It must act with the clear understanding that the UCC has nothing to do with the right to religious beliefs and faith as guaranteed under the Constitution. There cannot be any conflict between UCC and Articles 25 or 26 of the Constitution. Article 25 entitles every person, even a foreign national, the freedom of conscience and the right to profess, practise and propagate religion. Similarly, Article 26 gives the right to every religious denomination to establish, maintain and manage its own religious affairs. Constitutionally, the UCC and Articles 25 and 26 are mandated to be mutually exclusive and distinct.

In fact, the Constituent Assembly considered this aspect and was of the opinion that the UCC would infringe on the fundamental right of freedom of religion under Article 25 and that it would go against the minority right. That is why the founding fathers of the Constitution placed the UCC under the Directive Principles of State Policy. Possibly, because of this reason no government has so far been able to muster the courage to comply with Article 44. Indeed, any hasty or slipshod enactment of UCC can give rise to disastrous consequences, just as former prime minister V.P.Singh encountered disaster by hastily pushing through the Mandal Commission recommendations on Reservations. Issues impacting the social fabric of India require delicate, mature and sagacious handling.

Social strife is increasing in India. Sectarianism, bigotry and fanaticism are raising their ugly heads. In this situation, multiple personal laws based on religion are alienating citizens. A segment of the society is veering back towards extreme patriarchal and misogynistic attitudes, threatening to negate the gains Indian society has made in moving away from such tendencies.

Whilst a Uniform Civil Code may not be the panacea for all these ills, and the path towards it will be beset with hurdles that are bound to be created by misanthropes. Yet it must be arrived at in such a way as to thwart the designs of divisive forces. The government must rise to the occasion. The situation calls for deft and mature handling. Therein lies the skill to govern!

The writer is a former additional solicitor-general of India and senior advocate, Supreme Court of India.