By Manish Tewari
Nov 15, 2014
Irrespective of whatever definition of secularism is assumed, Uniform Civil Code can by no stretch provide a lever for the state to transgress into the religious beliefs of an individual
An invite to a conversation on “constitutional politics and judicial will relative to the Uniform Civil Code” made me examine the matter beyond the bluster.
The idea of a Uniform Civil Code flows out of Article 44 of the Indian Constitution that is a directive principle of state policy. It declares, “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The preamble to the Indian Constitution enshrines secularism as a fundamental value of the Indian state. The first question that would arise then is this: Is there an inherent conflict between a preamble ideal and the remit of Article 44? The second query that would arise is whether there an intrinsic inconsistency with Article 25 that allows for freedom of conscience and free profession, practice and propagation of religion. The third enquiry that needs to be flagged is whether on a wider plane there is a basic incompatibility between retrofitting religious continuums dating back millennia into the conception of modern Westphalian nation states?
Eminent jurist H.M. Seervai, in his treatise Constitutional Law of India, delineating on fundamental rights qua directive principles posed the following interrogatories: “What would have happened if directive principles had not been enacted in our Constitution or are struck out? And what would have happened if fundamental rights would not have been enacted or were struck out.” He then proceeded to answer the conundrums. “I came to the conclusion that if directive principles had not been enacted or struck out nothing would have happened. But if fundamental rights had not been enacted or were struck out, the result would have been a disaster.” The issue of a Uniform Civil Code needs to be scrutinised within the framework of the preceding inquiries and this postulation.
Secularism is the separation of the church and the state. It essentially means that the state shall not interfere in the religious activity of any denomination and no religion shall be permitted to exercise any influence on the affairs of the state. What it also implies is that while the state should look at the materialistic aspects of life, religion is really the spiritual salve that operates in the individual domain. The underlying assumption being that the state must be atheist or at the very least agnostic in its conception.
This is how the construct was perhaps originally conceived as the forerunners of India endeavoured to shape a modern state out of an ancient nation. However, here lay the quintessential contradiction between intent and reality. That the subliminal Indian ethos was deeply religious is an actuality that just could not be overlooked. Over a period of time secularism was modulated and Indianised by succeeding generations of statespersons to mean Sarv Dha-ram Sambhav that the state would have equal respect for all faiths. What was implicit in this formulation was that the state had now given itself the license to patronise faith. This was a definitional leap of faith that allowed the politics of religious revivalism to get a second wind.
However, in the perspective of the Uniform Civil Code, irrespective of whatever definition of secularism is assumed, it can by no stretch provide a lever for the state to transgress into the religious beliefs of an individual.
Coming to Article 25 of the Constitution, doesn’t the right to practice a faith encompass all the conventions and practices that go with it? Since the Westphalian conception of sovereignty post-dates the religious continuum, can that by any stretch provide a warrant to interfere with the fundamental beliefs of an individual?
There is an obvious caveat to this proposition. If there are faith based or associated practices that are retrogressive and repugnant to the very ideal of a progressive ethos, for example, diktats of caste oligarchies (read Khap Panchayats) or unequal inheritance laws that discriminate against women, should the state not decisively intervene to put an end to such abhorrent practices. The answer is certainly a yes, but is the way to do so reform of that particular aspect of personal law or the adoption of a common civil code?
There is also no clarity on what a common or uniform civil code means? Would it mean that all personal laws relating to marriage, divorce, inheritance, succession and guardianship would cease to exist and there would only be one law governing the personal and private affairs of all the 1.2 billion people of India or would it just be another law open to those who seek to utilise it?
If it were the former, would it not militate against the sheer diversity that is the essence of the whole idea of India? In 2012, Parliament legislated an amendment to the Anand Marriage Act because the Sikh community, and rightly so, wanted certain ambiguity pertaining to the phraseology of their marriage ceremony be clarified. This is not withstanding the fact that Hindus, Sikhs, Jains and Buddhists fall within the overarching ambit of the Hindu Marriage Act. In fact, the movement among non-Hindu communities is to break free from this omnibus legislation. Similarly, in many communities succession is matriarchal. Another issue that is provocative is, would it provide rights to transgenders, gays and lesbians? Would it legitimise same sex marriages?
If it is going to be the latter, then don’t we already have the Special Marriage Act, 1954, and the Indian Succession Act, 1925, that are non-denominational in character. Does that not constitute a voluntary Uniform Civil Code?
Experience establishes that reform of personal laws should really come from within the communities. It ensures that there is the broadest possible consensus on change rather than change being imposed from outside. The example of the Bharatiya Muslim Mahila Andolan is a case in point. They have ostensibly drafted a New Muslim Marriage and Divorce Act and are now canvassing support for it within the community.
To conclude the commandment of a Uniform Civil Code is not a polemical political issue to be used for partisan purposes. It has a very grave import. Thankfully it is non-enforceable. Given the sheer multitude of different intra-faith social conventions and traditions without even embarking on an exercise to map out inter-faith divergence, any hasty action on this score would be catastrophic. Certain dead letters must be allowed to fade.
Manish Tewari is a lawyer and a former Union minister.