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Uniform Civil Code : Conundrums and Paradoxes

The debate on the subject of the Uniform Civil Code (UCC) basically revolves around the tension between two constitutional guarantees – ‘equality and non-discrimination (Articles 14 and 15) and religious freedom and cultural plurality (Article 25 to 28).  There is another dimension of the tension.  While the mandate for enacting a UCC (Articles 44 of the Constitution) is one of Directive Principles of State Policies which are non-justiciable, right to equality and protection of minorities religious freedom and their culture are justiciable Fundamental Rights.  It is within this scheme which seems to comprise conflicting constitutional claims that any attempt to examine the desirability and feasibility of bringing a UCC needs to be framed.

Any exercise examining the desirability and feasibility for bringing a UCC in our views need to explore three possibilities.

Possibility-1: Bringing a Model Common Civil Code (MCCC) incorporating the best provisions from different personal Codes irrespective of religion, castes or ethnicity.  The MCCC will be optional and anyone irrespective of religion he/she belongs to may take recourse to it.How many will take recourse would largely depend on awareness of existence of such a code and more importantly the support and commitment it elicits from the elite, statesmen and opinion builders cutting across religions, ethnicity, castes   and other such loyalties.  The effectiveness of such a code would largely be determined by the evolution of a culture which fosters constitutional values and morality.  A culture that respects women’s identity, equality and non-discrimination. Every effort needs to be initiated to remove any apprehension shared by minorities about such a code by impressing upon such group(s) that the proposed being a model Code does not borrow provisions from any particular personal Code belonging to a specific religion or caste or ethnicity.  The Code is neither aimed at excluding nor at preferring any particular Code and only adapts the best irrespective of any other consideration.  That is why it is Model and optional.

Such a Code brings in a reformative approach to personal laws universally and generally.  It rules out   possibility of any apprehension being nurtured that the code is aimed at reforming personal Code belonging to any particular or specific religious community.  Foundations and contents of MCCC are secular this needs to be told and retold using every legitimate means, especially the educational experiences being imparted.  Examples be collected and conveyed to buttress the secular and reformative  nature of such a code  say for example – if on one hand such a model Code would contain provisions (from Muslim Personal Law)  treating marriage as a Civil Contract and thus tinkering the prevailing understanding of a Hindu Marriage as a sacrosanct on the other hand such a model Code  by declaring polygamy  illegal and banned would tinker with Muslim Personal Law as much.  People be made aware of such  an approach to remove the apprehension that such a Code would be just Hindu Civil Code.   How Statesmen, elite and opinion builders spread such awareness about the secular nature of such a code is what matters in dealing with conundrums and paradoxes of the debate on UCC.

Even if the possibility of enacting a MCCC does not find favour in the hands of legislators, proposing such a code especially by body like Law Commission of India would provide an important forum for building more informed and better nuanced debate and discourse amongst stakeholders and opinion makers about the feasibility of attending to the Call of Article 44 of the Constitution if not today, tomorrow.

Possibility-2: Codification of personal laws and introducing reforms in existing personal codes. Recently the National Commission for Women while reflecting on the Draft National Policy for Women (2016) has highlighted that the problem is not of plurality of personal laws and uniformity is not the answer but what is required is a reform of personal laws to ensure that gender equality and equity becomes a reality.  No doubt codifying or reforming personal laws is a messy affair.  It is easy said, difficult done becomes so evident when one looks into the stiff resistance of 1955-56 to the Codification of Hindu Law inside as well as outside the Parliament including from the first Citizen of the Country.   Dr. Ambedkar who drafted and introduced the Bill become so disgust and decided to quit.

While looking into possibility for Codifying and introducing reforms there is no need to over emphasize that no such exercise can be worth rather may prove counterproductive and fodder for vested interest to foment feeling of imposition of hegemony of a particular religion.  Asking for such reforms social consciousness and public opinion needs to be raised.  Voices of reforms must come from within.  No doubt raising social consciousness is not one go subject.  It is slow process, takes times and happens gradually not instantaneously.  Move to Codify Hindu Personal Law in 1955-56 had history stretching to pre-independence era that involved continued efforts of national leaders, social reformers most of whom came from within the   Hindu Community and still the enactment of code met significant resistance in the hands of many religious fundamentalists and with some genuinely believing that such code had the potential for destroying the family unity and peace.  Somehow the code was enacted and fear and conundrums pointed then stand largely diminished today.

It is significant that in the recent decade demands for reforms are emerging not only from secularists but from within the Muslim Community itself.  More importantly Muslim women from middle class and having exposure to education are increasingly and demonstratively expressing their resolve to seek reforms. Even some of the Social Organizations belonging to the realm of religion such as All India Muslim Andolan are in the forefront asking for reforms in Muslim Personal Laws securing gender equality and elimination of all kind of discrimination and indignity against Muslim women in the name practices rooted in the name of religion.  That demands for reforms are being increasingly voiced from within provides an important background in which the realization at least partially if not fully of possibility 2 could be examined as an important step towards securing a UCC.

Possibility-3: Bringing a UCC applicable to all irrespective of religion, caste or ethnicity.  Feasibility of realizing such a possibility at this stage seems to be quite bleak.  Any hasty approach may throw an excellent opportunity  before fundamentalists on both sides of the debate to foment emotions and passions in the name of loyalties to religion, caste, ethnicity etc and may even reduce the possibility of realizing  either of  two possibilities discussed above.  In the context prevailing today especially all over the world whether justified or not, whether right or wrong, apprehensions of minority may get further strengthened and they may develop a sense of persecution  if UCC is introduced without taking them into confidence.  In fact, the idea of those who are looking towards the UCC as a law that would promote the cause of national integration may prove misplaced.  The UCC can be implemented only when there is wide acceptance from all religious communities after discussing pros and cons and no decision, however, reformatory could be thrust on the people without their acceptance.  All misgivings would have to be squarely addressed for progress to be achieved on this front.  In this context let us recall that in the case of Lily Thomas v. Union of India (2000) while discussing its earlier judgment in Sarla Mudgal’s case (1995) oftenly cited as one asking the state to bring out a UCC the Apex Court had pointed   that no directions were issued in the Sarla Mudgal’s case and only a hope and desire that the legislature would take a call on Article 44 was expressed   and Justice Sahai had cautioned, “….. the desirability of UCC can be hardly doubted but it can concretize only when social climate is properly built by the elite of the society and statesman, instead of gaining personal mileage, rise above and awaken the masses to accept the change”.   Article 44 is not enacted as a rhetoric and awaits serious efforts for its implementation. Let us be clear of two of its aspects in regard to implementation. First, Article 44 as mandate not to legislature alone but to other instrumentalities including the judiciary as well to endeavour towards   securing UCC.   Second its Founders being conscious of complexities and sensitivities involved  did not favour one go approach and idea was gradual realization through cumulative efforts of various state instrumentalities.  There are several provisions in the Constitution which are transitory, such as the number of years of provision for reservation of seats for representation in the Parliament and the Legislative Assembly (Article 334), the time frame when Hindu will substitute English as the Lingua franca for official purposes (Article 343), and the special status to Jammu and Kashmir (Article 370).  The withdrawn of special status to Kashmir in the present context will be taken to serious trouble and tension for the nation; reserved constituencies are absolutely essential for several more years to assure adequate political space for SC/ST.  Hindi has still very little currency in the Southern States.  Similarly we believe that how far and how fast can we bring a UCC needs greater mulling and opinion building.  Probably thorough study involving all cross-sections of society, communities and religious leadership and detailed discussion forming part of Law Commission’s as and when it submits its report may constitute a significant step in that the direction.

 

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