India’s polity is sui generis – meaning thereby, it is unique in its existence. The heterogeneity represented by diverse languages and religions is the hallmark of our democracy. A rights based democracy, however, demands that a conscious departure be made from the socio-religious considerations in order to provide basic rights to all citizens without any discrimination on the grounds of religion or gender.
Laws which govern our interpersonal relationships are marred by inherent injustices which puts citizens on unequal pedestals and ultimately interferes with their quality of life. The cacophony around a Uniform Civil Code is therefore, necessary, justified and futuristic.
Tyranny Of Personal Laws
Before India became independent from the British, there was an architecture of personal laws based on religious texts which was followed throughout the nation. Our Constitution drafters were in a state of immense predicament of whether to steer India clear of shackles of religious heterodoxy or to sustain the umbilical cord of religion connected to the citizenry.
Personal laws related to marriage, divorce, inheritance and adoption were consciously left untouched to ensure that the country was not engulfed in the communal fires raging at that time. The Uniform Civil Code was confined to the Constitution's unenforceable part – Directive Principles of State Policy (Article 44).
Despite strong opposition from a section of the Hindu community, the Hindu Succession Act 1956, was finally amended in the year 2005 to incorporate the right of daughters in father's property. This legislative act emancipated women from notions of patriarchy and entrenched the constitutional tenets of gender equality.
Despite strong strides being made in the personal laws of the Hindu community, the injustices to women in personal laws of the Muslim religion remained undisturbed by the legislature. The inheritance law of the Muslim community discriminates against women in the devolution of property.
Judges And Religious Dogma
The unfair personal laws which are more religious than adhering to constitutional principles, derive their strength from Article 25 of the Indian Constitution, which guarantees the freedom of conscience, the freedom to profess, practice and propagate religion to all citizens. The Supreme Court of India had, in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 propounded what came to be known as the "Essential Religious Practices Doctrine".
According to this, the Court would have to undertake the exercise of delving into the religious text to ascertain whether a religious activity was essential to the religion. If the Court found that the concerned activity was not essential to the religion, then it could be struck down. Otherwise, it would be protected by Article 25.
In 2017, while delivering the infamous Triple Talak verdict, Justice Rohinton Nariman (now retired), applied the doctrine of "manifest arbitrariness" to hold that the practice of Triple Talaq was hit by Article 14 (Right to Equality). It was a statement that discriminatory and unjust personal laws could be invalidated on the touchstone of the Constitution alone, without wading into troubled waters of religious texts.
It was a startling reminder that Courts should always remain logical and follow constitutional jurisprudence. At no point in time, should a Court assume the role of a priest. If at all a Uniform Civil Code comes into existence, it should be adjudged singularly on the touchstone of our Constitutional edifice.
Convince The UCC Sceptics
Be that as it may, any law that attempts to subsume conflicting religious beliefs into a homogenous legislation should be a holistic document that harmonises the nation. The Constitution must be the guiding light. The premise of the scepticism harboured by the detractors of Uniform Civil Code is that the Union Government will propose a legislation which would impose the traditions of the Hindu majority community on the minorities.
Such misgivings and apprehensions must be allayed through constructive dialogue from the Government. Parliamentary function of debate and discussion must be invigorated. The part of the laws which are in conflict with our constitutional ethos must be revoked.
Retaining of innocuous parts of personal laws which do not perpetuate any injustice must be considered thoroughly so that every citizen is provided with a semblance of the right to practise her own faith. The focus should be to put an end to gender injustice perpetuated by religion.
Right to lead a dignified life should be extended to each citizen irrespective of her religion or gender. The concerns of the LGBTQI+ community must also be taken into account to curate a comprehensive legislation which caters to all categories of stakeholders.
Politics must not be allowed to jeopardise something that we hold very dear – fraternity. Great impetus must be given to debate, discourse and discussion so that Uniform Civil Code is passed with consensus and not just "unanimity". In pursuance of attaining uniformity, amity must not dissipate.
Kaustubh Mehta is an advocate who practises in Delhi. Views are personal, and do not represent the stand of this publication.
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