Securing the code

Securing the code

The endeavour for a common civil law must be to end discrimination, and not stamp majority might

Public and political debates surround the “paramount” duty under Article 44 that asks the state to endeavour to secure a Uniform Civil Code (UCC). These debates have particular poignancy for communities whose personal law is to be made “uniform” and for the political parties who promise to pilot a code. It is too emotional and volatile an issue to readily permit rational consensus. Proponents for change insist that almost seven-decades is too long a period for the state to not endeavour towards a UCC. In contrast are the claims that the time is not ripe and an establishment-centred hegemony should be avoided. A major twist has now been added to the tale by the demands of the movements for human rights of children as well as by the demands placed by women’s rights movements for laws and policies that do not discriminate on the basis of gender.

However, the constitutional promise itself is infinitely complicated. Public and political debates have not considered what exactly are the “duties” created by Article 44. So far, all interpretive efforts have eluded narrative coherence. The duty is not to merely to legislate but to “secure” a code. How long shall the state endeavour? Perhaps, the time has come for an amendment of this article and prescribing a time-bound schedule.

Has the state at all endeavoured? While there are many different standpoints, Law Commission Chair, Justice B.S. Chauhan, was right in saying that the elements of a UCC already exist in “some legislations where a common law was applicable to all without consideration of religion”, and that “most people are perhaps unaware that common code exists in many laws”. But his preliminary articulation suggesting the need to de-link the UCC from religion will surely be contested.

Perhaps by “uniform” we understand that all citizens should be subject to the same law, regardless of community, religion, and identity. But when the personal law stands anchored in the freedom to practice religion, state intervention may violate a fundamental right. Further, who decides what religion requires: The custodians or all the coreligionists? What legal and social meaning is to be invested in Article 51-A(f), which talks of the fundamental duty of all citizens “to value and preserve the rich heritage of composite culture”? When may this conflict with Article 51-A(e) that talks of the need to “renounce practices derogatory of women”? The duty (in clause “h”) to “develop the scientific temper, humanism and the spirit of enquiry and reform” reinforces social inclusion in religion and the state. How best to have legal controls over religious practices that hurt human rights warrants serious consideration from all sides.


And indeed when is a “code” a “code”? If codification is to avoid merely articulating majoritarian might, it ought to be a historically-calibrated state venture at social consensus. Here, adjudicatory leadership matters as much as national leadership. Is piecemeal normative cleansing of disvalued difference less eligible than a total UCC? Is reasoned judicial enunciation to be preferred over “state endeavour”? The question is: How best to secure a codification that genuinely endeavours to remove discrimination and prejudice against women’s and child rights?

The German historical jurist Fredrick von Savigny said (in mid-19th century) that codification involved both a “technical element” (the knowledge of customs that are to be codified) and a “political element” (the question of political will to codify). Do we know enough about the personal law of various tribal communities from which the UCC may choose? Or, the laws of various Hindu and Muslim communities? Do we know enough about the religious personal law of other Indian communities? It is a sad mistake to think that a UCC is all about Hindu-Muslim relations and identities.

The political element in India today must refer equally to political and judicial will. True, the Supreme Court has quite often subjected customary and codified personal laws to the equality and gender justice discipline of the Constitution and also said that a UCC is a desirable constitutional mandate which the state ought to follow more expeditiously. The court (Chief Justice T. S. Thakur, Justices A.K. Sikri, and R. Banumathi) has also said that it is the solemn duty of Parliament to enact a UCC. However, in response to a PIL filed in the Supreme Court, a bench of Justices Anil R. Dave and Adarsh Kumar Goel also directed the National Legal Services Authority of

India to re-examine the issue of “gender discrimination” suffered by Muslim women in the country.

The nascent Bharatiya Muslim Mahila Andolan, a national coalition of Muslim women with over 70,000 members across 13 states, recently collected around 50,000 signatures of Muslim women demanding the abolition of the triple talaq system of divorce. And it has sent a letter to Prime Minister Narendra Modi asking for reforms. Obviously, the authority is bound to take into account this petition. Besides, the Law Commission of India has been asked in June to submit a report on UCC.

It thus seems that there is a new political determination about UCC in the air. The difficult decisions ahead relate to the linkage between personal law system and religious and communitarian identity. While the UCC opponents maintain that the state may reform a community law only with their consent, it is also a moral principle that the consent should not be withheld unreasonably and permanently. The additional requirement that the state provides security and safety to every citizens is valid: A democratic state should neither become an “institutionalised riot system” (in Paul Brass’s words) nor should governance become a specialised sphere of managing “riot after riot” (to use the title of M.J. Akbar’s book).

Farrah Ahmed concludes that the existing personal law system “harms religious autonomy” (considered as self-respect) of those subject to it. However, she suggests a religious alternative dispute resolution (ADR), under which persons will devise their norms and choose religious arbitration or mediation, restrained only by legal protections against oppression. One hopes that ADR will find some resonance in state and civil society, as a prelude to a future UCC.