Supreme Court of India.
The Supreme Court asked the central government last week whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions. There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance, the court said, and asked the Solicitor General of India to come back in three weeks with instructions on the government’s view. This was the third time this year that the apex court had spoken on the Uniform Civil Code: on the previous two occasions, it had suggested there should be uniformity in personal law; this time it wanted a categorical answer from the government.
A Uniform Civil Code essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion. Currently, different laws regulate these aspects for adherents of different religions. An example is the very case in which Justices Vikramjit Sen and Shiva Kirti Singh made their intervention last week: a Christian man has questioned a provision that requires a Christian couple to be judicially separated for two years before getting a divorce, whereas this period is one year for Hindus and other non-Christians.
Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Directive Principles, as Article 37 makes clear, are not enforceable by any court. But a body of judicial precedents says that they are fundamental in the governance of the country, and the State shall strive towards fulfilling obligations laid therein.
What would fall squarely for consideration whenever a debate on the Uniform Civil Code picks up pace are the “secular” character of India, which has been identified as part of the basic structure of the Constitution, and Article 25, which guarantees the freedom to practise, profess and propagate any religion.
By the 42nd Amendment of 1976, India was declared a secular nation. As a result of this, and the understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws. There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations — and not tacitly support them by following a practice of non-interference, no matter what. Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice” — therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.
The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality. Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.
The first prominent case founded on Article 14 was Shah Bano (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else. Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling. The Act allowed maintenance to a divorced woman only during the period of iddat, or for 90 days after divorce, according to provisions of Islamic law, but in stark contrast to general provisions under the CrPC. In Daniel Latifi vs Union of India (2001), the Supreme Court upheld the Act in so far as it confined the time period of maintenance to the iddat period, but held that the quantum of maintenance must be “reasonable and fair”, and therefore, last her a lifetime. In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.
In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances. The court held that the interest of the child was paramount, and that the letter of law would not override this aspect. It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.
The Supreme Court examined the aspect uniformity again in two cases in 2015. The first pertained to seeking the court’s recognition to the Ecclesiastical Court, which operates under the Canon Law for Catholic Christians and not under India’s civil laws. The apex court was upset — wondering angrily whether India would remain secular in the present circumstances, and calling for stamping out religions from civil laws. This case remains pending.
In the second case, the court dealt with the issue of guardianship of a Christian unwed mother without the consent of the child’s father. While ruling in the woman’s favour, it said: “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.”
And yet, framing a Uniform Civil Code, or any law for that matter, remains the exclusive preserve of Parliament. And the will of governments is enmeshed with political considerations — and is mindful of protests by various religious institutions that it would violate their religious freedom, and may lead to domination by the majority.
The UPA government had maintained in Parliament that it would not touch the subject. The BJP, on the other hand, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.
Since coming to power, however, the BJP-led government has not made any move towards enacting a Uniform Civil Code. After the Supreme Court’s latest statement, Law Minister D V Sadananda Gowda said the Code is in the national interest, but made no specific promises on its enactment.
The fact is that an unprejudiced deliberation on the innate merits of a Uniform Civil Code has usually been overshadowed by communal and political overtones, provoking the Supreme Court to keep prodding the union government to ponder over it in the interest of national integration and gender parity. What the government tells the court next month will be a test of its political will — and mark the next chapter in the evolution of this debate.
