The constitutional provision for a uniform civil code (UCC), in view of its inherent intricacies and the widespread misgivings engulfing it, requires abundant caution when its aims, objects, and the ways and means for its implementation are spoken and written about. Unfortunately, however, it is often read quite superficially and talked about in terms that are irrelevant to its actual logic and rationale. A reality check in this regard is, therefore, a national imperative.
The provision for UCC is there in Article 44 under Part IV of the Constitution formulating a number of Directive Principles of State Policy, which are not enforceable by the courts but are to be “nevertheless fundamental in the governance of the country” (Article 37). Notably, it speaks of a uniform and not a common civil code — the difference being loud and clear — and directs the State to “endeavour to secure” it, not to enact it at one go. Reading it with the words of Article 37 — which prompt the State “to apply these principles in making laws” — clearly indicates that the makers of the Constitution wanted uniformity to be gradually effected in the heterogeneous family law system of the country by suitably amending the old laws, and enacting new ones to serve the purpose.
It is not true that there has been no progress in this direction. Many new laws of general application have been enacted over the years — to name a few, the Special Marriage Act 1954, Dowry Prohibition Act 1961, Foreign Marriage Act 1969, maintenance law under the Criminal Procedure Code 1973, Protection of Women from Domestic Violence Act 2005, Prohibition of Child Marriage Act 2006, and Maintenance and Welfare of Parents and Senior Citizens Act 2007. The totality of these laws, each overriding contrary provisions of all personal laws, partly answers the demand of the Constitution for uniformity in family laws. By way of another step in this direction, various personal laws have been amended on almost similar lines.
A new comprehensive civil code, if enacted, will replace personal laws of all communities, none of which are at present free from religious bias and gender inequalities. But it is generally projected as a measure aimed at doing away with Muslim law, which is seen as archaic and anti-women. This misperception has turned the noble constitutional ideal into a nightmare for the Muslim clergy and the masses alike who naively believe their law to be divine and hence sacrosanct, shutting their eyes to the fact that their law as practised here is not the true Islamic law. In its authentic version, this law is not entirely incompatible with the modern age. Justice Krishna Iyer had once said that Islamic law recognised the “sanctity of family life” and “stubborn incompatibility between the spouses as a ground for divorce” (Yousuf Rawther, 1971). The divorce law of Islam was in fact based on the concept of irretrievable breakdown of marriage but is now drowned in a quagmire of distortions.
Proponents of the UCC often see the four Hindu law Acts of 1955-56 as a model — even an apex court judge once said so (Justice Kuldip Singh in Sarla Mudgal 1995). These Acts were originally full of provisions conflicting with the constitutional ideals of religious equality and gender justice. Recent amendments have made considerable improvement, but still there is much to be desired.
Under the Hindu Succession Act, the course of inheritance still depends on whether the deceased owner of a property was a man or a woman, and in the latter case, on the source of the property. Among the parents of the deceased only the mother is a preferential heir; the father is excluded by many other preferential heirs whose list was illogically enlarged in 2005. Under the adoption law a man needs his wife’s consent for adopting a child, and even for giving their child for adoption to someone else, only if she belongs to the same faith.
The Special Marriage Act 1954 originally said that succession to the properties of parties to civil marriages, and of their descendants, would be governed by the Indian Succession Act 1925. In 1976, it was amended to the effect that if both parties to such a marriage are Hindu they would be governed not by the said Act but by the Hindu Succession Act, while for all other communities, the law on this point remained unchanged. This amendment, advocated by the Law Commission of the time, was clearly an antithesis of uniformity.
The Special Marriage Act and the four Hindu law Acts — contrary to their prefatory declaration of extension “to the whole of India” — are not in force in certain parts of the country. There are places whose local laws of foreign origin are protected by parliamentary legislation or whose customary laws are safeguarded by the Constitution. This situation, clearly repugnant to the closing words of Article 44 — “throughout the territory of India” — has all along been ignored by those lamenting inaction under its provision. Uniformity of laws by itself is no virtue. The rationale of the constitutional provision on UCC is to make family laws of the country free from all sorts of religion-based discrimination and gender inequalities.
An apex court judge had once observed: “The desirability of uniform civil code can hardly be doubted. But it can concretise only when the social climate is properly built up by the elite of the society and statesmen, instead of gaining personal mileage, rise above and awaken the masses to accept the change.” (Justice R M Sahai of Sarla Mudgal bench, 1995). The UCC issue must, in the fitness of things, be totally excluded from the political domain. If a representative group of acclaimed social reformers and legal academics produce a draft free from the vices of religious discrimination and gender inequality it can — rather must — be extended to all citizens in all parts of the country. This is the course of action the Constitution wanted to be pursued but which has evaded the nation throughout these long years.
The writer is distinguished jurist chair and professor of eminence, Institute of Advanced Legal Studies, Amity University.
