Part IV of the Indian Constitution guarantees to every citizen certain fundamental rights enforceable in a court of law. In addition, certain broader concepts and values which could not be guaranteed immediately at the commencement of the Constitution were incorporated in the next part, as ‘Directive Principles of State Policy’. Although legally unenforceable, these are a set of directives for the state to actively attempt to implement and adopt in its policies and actions. For instance, guaranteeing free and compulsory education to all children till the age of 14 years, raising standard of nutrition, or the infamous directive of prohibiting cow slaughter, which has been at the heart of much unrest recently. One such directive under Article 44 is that the state shall endeavour to enact a Uniform Civil Code (hereinafter “UCC”) for the citizens. Considering there already existed several enactments addressing an array of civil matters, the framers were seemingly referring to personal laws, which deal with marriage, divorce, custody, maintenance and associated matters.
In India, personal laws have been closely entwined with religious beliefs as a matter of practice since colonial times, making it an extremely sensitive issue. The UCC would effectively bring into force a uniform set of laws and principles to be applicable in the aforementioned matters, irrespective of the religious beliefs of the parties. This is where the primary objection to the UCC stems from – state interference with the constitutionally guaranteed right to profess and practise the religion of one’s choice, seemingly bringing this directive in conflict with the freedom of religion guaranteed under Articles 25 to 28. Ours being a secular country, the state is expected to steer clear of all matters which fall under the religious realm, and matters pertaining to marriage, divorce, inheritance and so on are categorically and extensively addressed by all major religions. Thus, the question of the state enacting universally applicable laws dealing with these matters, which may contradict what one’s religion prescribes, generates considerable uproar.
However, the biggest positives arising from a UCC as emphasised by its proponents are national integrity and bridging of the gender gap. Enacting uniform personal laws for a nascent nation having innumerable cultural identities was not a viable option at the time of the commencement of the Constitution. Having separate personal laws has evidently amplified the sharp divide between the religious minorities and the majority Hindu population, and the concept of a UCC was expected to bring national integrity.
Most religious personal laws reflect strong overtones of patriarchal dominance and unequal treatment of women – Hindu law makes a man the natural guardian of his children and his minor wife, Muslim law allows a man to have four wives! Equality before the law irrespective of sex, among other parameters, is a fundamental right envisaged under Articles 14 and 15. By allowing personal laws to override these constitutional guarantees in the name of protecting minority identities from being dominated by the majority’s values, the state is institutionalising patriarchal traditional practices and putting women to a grave disadvantage.
Further, considering these laws have such a direct and intimate effect on women, allowing them to be governed by such gender discriminatory laws is not as much a testimony to the state’s secularism as it is an instance of the state allowing gender discrimination in the name of being religiously neutral. Enacting a UCC would resolve this by effectively overwriting these discriminatory laws with fair and non-discriminatory laws that are universally applicable. It would not only ensure equal rights in these matters between the two sexes, but also bring parity between the legal status and remedies of members of the same sex belonging to different religions.
One very valid concern regarding the UCC is the sudden change it will introduce to existing interpersonal relations, potentially resulting in loss of marital status, maintenance, or a right to property for many. A similar concern had been raised at the time of enacting the POCSO, for its suddenly declaring all child marriages void could result in many child brides being abandoned by their husbands as well as their families. This was resolved by declaring them voidable solely at the option of the aggrieved party, thereby providing an option. A similar approach could be taken for all existing relationships falling under the UCC, making its provisions applicable at the option of the party that previously had the weaker legal status. Moreover, provisions of the UCC could be brought into force gradually, allowing citizens time to become aware of their reformed rights and adapt to the new system.
However, every time the debate around the UCC starts gathering heat, it is met with strong public opposition, from religious minorities in particular, and the cry for gender justice is silenced. The matter has repeatedly been subjected to politicking by governments in power and the opposition, while religious clergymen currently enjoying power furiously protect the status quo. It is not the concept of a UCC which attracts as much opposition as the question of who will control the process of drafting one. In the present political environs, minorities naturally have a fear of the UCC having Hindu-centric values – rightly so in light of the increasing cow slaughter related hate crimes against Muslims and Dalits seemingly arising from the current government’s Hindu-centric foundations.
The only way to address these concerns is to bring all stakeholders to the table, reflecting both the sexes across all religious communities. A draft code can be prepared and opened to scrutiny by the public and the central and state legislatures. This would also bring clarity about what the UCC would in fact entail, since a code has never actually been attempted to be drafted despite being repeatedly deliberated. Freedom of religion can potentially be safeguarded by allowing religious laws to exist parallel and subject to the codified laws. This is to say that in addition to the civil law applicable regardless of religion, citizens be free to follow religious practices and traditions, which the state can help enforce provided they are compliant with the principles of the UCC. For example, the USA and Canada enforce Jewish women’s right to receive get as part of a man’s prenuptial obligation, resulting in the coexistence of religious practices along with a uniform civil code.
All citizens enjoy the same political and socio-economic rights; being subject to different personal laws solely based on the religious beliefs of the family one is born into is equivalent to discrimination under the guise of religion. Religion deals with one’s faith, while the law prescribes the rights and duties of a citizen vis-à-vis the society at large. One’s civil obligations must not be made a touchstone of her religious identity, and the socio-legal realm must be distinguished from the realm of faith and religion.