BY- MADHUSHREE PAUL
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens :
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all,
FRATERNITY assuring the dignity of the individual and the unity [and integrity] of the Nation;
IN OUR CONSTITUENT ASSEBMBLY this twenty – sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OVERSELVES THIS CONSTITUTION.
The term “Secular” inserted by the Constitution (42nd Amendment) Act, 1976, explains that the State does not recognize any religion as a State religion, and that it treats all religions equally, and with equal respect without, in any manner, interfering with their individual rights of religion, faith or worship. It does not mean that it is an irreligious or atheistic State. Nor, it means that India is an anti – religious State. That, in the matters of religion, the State is neutral. It neither promotes or practices any particular religion, nor it interferes with any religious practice. That the State is not concerned with the relationship of men with other men.
Secularism does not mean separation of religion from state, it simply defines a state that is neutral of all religious groups. It does not draws discrimination between devotees and agnostics. And that, the State will not interfere in the matters of religion, because every person is free to mould and shape his relations with his God in any manner, which is regulated by his conscience. India has had various personal laws for every religion, the laws set on the foundation of sentiments and religious beliefs. For instance, India had a long series of religious practices in Hinduism such as, child marriage, polygamy (though only husbands were allowed to practice it), Sati, etc, which were later abolished by the British, because they knew “women do not make good fuel.” Window – remarriage was encouraged, divorce was introduced, and inheritance laws were enacted. And this is not for just one religion. Muslims have gone through tremendous change themselves, as Muslims of Kutch (Memon) had to accept a common Muslim law along with the Khoja Muslims and that became their personal law. So has been the case with Christians and Parsis.
In the Preamble of the Indian Constitution, the term “secularism” has been so profoundly defined, that the State should not face any conditional situation where it has to interfere in the matters of religious beliefs. But then again, the Constitution itself holds a provision for Uniform Civil Code. Article 44 of the Constitution of India creates that condition, though not mandatorily. It states that, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
What is Uniform Civil Code? Well, the term in itself suggests that it is a Civil code that is Uniform for all. Every citizen of India, governed under the same set of rules. That there shall be no room for discrimination. The founding fathers of the Constitution had made it clear that even though the provision is not mandatory as of now, but it is in the good interest of every citizen to implement Uniform Civil Code for the betterment of the country. But then again, how is this clashing with religious beliefs? Well, isn’t it clear how this specific code if implemented shall ignore religion altogether and any of the discriminations encouraged by these personal laws cannot be held onto and the society cannot be fed with monotony. The basic idea of “Nationhood” gets camouflaged under these personal laws where religion has a reserved pedestal.
Let’s take a look at the personal laws implemented in India.
Hindu Personal Laws: The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Minority and Guardianship Act, 1956; The Hindu Adoption and Maintenance Act, 1956. These laws govern not only Hindus, but Sikhs, Jains, Buddhists as well.
Indian Muslims are governed by the Muslim Personal Law (Shariat) Application Act, 1937. Muslim laws are not codified and unlike Hindu personal laws, Muslim laws still adhere to religious beliefs and sentiments even though the provisions are clearly discriminating in nature.
Christians are governed under Christian Marriage Act, 1872 and Parsis are governed under the Parsee Marriage and Divorce Act, 1937.
The Hindu Personal Laws are codified and furbished as such that they are largely walking along with the modern society. All these personal laws aim to cover sections of marriage, adoption, inheritance and succession that must be practiced as prescribed by their religious beliefs.
But to what extent? Even when discrimination is being encouraged by these laws? Even though these laws are promoting inequality one way or another and still being seated in that pedestal just because they are based on religious beliefs and practices? Just because they promote religious faith?
The implementation of Uniform Civil Code has been a debatable issue since a very long time in India. Post independence, when the issue of Uniform Civil Code was being proposed, the idea of different religions being ruled under one law was so unimaginable for the citizens, specifically Muslims who even challenged that if uniformity among law is recognized, it shall result in doom for India.
The need for Uniform Civil Code was first realized by the Court in 1980, the case of Shah Bano, a 62 year old who was divorced by her husband for another woman. Shah Bano had asked for alimony and the Court had granted her wishes and she was only entitled the alimony for 3 months. Later, after the Supreme Court heard the case, Shah Bano’s right to maintenance were upheld, which resulted in an outraged protest amongst the Muslim community, convinced that this was a violation of the written rules in the Quran. They firmly believed in the Shariat, and blamed the Supreme Court for interfering into their personal “issues”. Especially when the Constitution itself Contains provisions, namely Article 37 which expressly states that the Directive Principles shall not be enforceable by any court. Nevertheless, they are fundamental in the governance of a country. The non – enforceable nature does not reduce the importance of the principle.
Looks like the so called “religious sentiments” only took into account the first part of the principle, specifically stating “shall not be enforceable by any court.”
In the case of Albert Anthony, a Delhi citizen, where the petitioner had challenged the constitutional validity of Section 10A(1) of the Divorce Act, which prescribes a minimum two-year period of separation for Christian couples before they can file a suit for divorce by mutual consent, whereas in the case of Hindu and Parsi couples, they only had to wait for a year. This section was a violation of Article 14 (equality before law) and Article 21 (protection of life and personal liberty)
And that’s not the only case. Section 118 of the Indian Succession Act was struck down because it did not allow Christians to will property for charitable and religious purposes. The Bench declared the section unconstitutional in 2003.
There are numerous cases where the Supreme Court had made it clear to the Government to do the necessary for the enactment of a Uniform Civil Code. But the political parties have not been giving it any heed. This has become a political issue rather than a legal one. The Government is not doing anything in this matter just because they won’t be getting votes. Because if they introduce Uniform Civil Code, their will be outraged protest amongst the communities, specifically the Muslim community that follows Shariyat and whole heartedly believes in it. After independence even Pakistan had it in their senses to codify a specific law for all muslims, but not Indian Muslims. No. for some reason they are clinging onto the age old laws of the Shariyat.
The Triple Talaq case is a very controversial topic where in 2016, Sharaya Bano, after 15 years of marriage and multiple pregnancies and abortions, was divorced by her husband via Talaq-e-biddat (Triple Talaq). She challenged in the Supreme Court that Talaq-e-biddat, Nikah Halala and polygamy are unconstitutional in nature and violates Article. 14, 15, 21, 25.
FYI Nikal – Halala is a practice where if a divorced woman wants to remarry her husband, she would have to marry another man, obtain divorce from him and then only she can marry the former husband. Weird much?
The court did hear it and banned Triple Talaq, after a 5 Judge constitutional Bench and declared that the practice of Triple Talaq was unconstitutional by a majority of 3:2.
And it is not just with Muslim woman. Over the past century there has been too many of female foeticide among Hindus because apparently a girl child is a burden and a boy child is a piece of heart. India has overcome these issues some time back, but the very fact that it was in full practice once tells us that it is not an issue about one religion.
The Law Commission, in 2018, had a say in the idea of Uniform Civil Code and stated that “Uniform Civil Code is neither necessary and nor desirable.” How is it not necessary and not desirable? To throw out the personal laws that have compelled citizens to encourage inequality in the name of faith, is it really too much to ask for? To have equal rights and enjoy equal status that every citizen deserves?
CASUALTIES OF UCC IMPLEMENTATION
- SIMPLIFICATION OF LAWS : Uniform Civil Code, if implemented in India, would no doubt create a bridge between personal and public law and try to mandate simple laws rather than such a confusing and overflowing amount of laws already enacted. It will even reduce the burden from the legal system.
- EQUALITY BEFORE LAW : Article 14 of the Indian Constitution promises equality before law and the equal protection of law. Discrimination has been prevailing in these personal laws and has encouraged inequality for so long, even though Article 15 states the prohibition against discrimination on the basis of religion, race, caste, sex, place of birth. All those discriminating laws will have to be struck down. It would result in gender equality and
- NATIONAL INTEGRATION : If there is equality and no place for discrimination is faced by the people, the idea of “Nationhood” will take root into the minds of people resulting in national integrity.
- SECULAR INDIA : India will become secular in true sense. That the state does not recognize any religion as a State religion and that it treats all religion equally.
- PROTECTION OF RIGHTS : All rights shall be protected no matter the religion one belongs to, as it has been provided under Article 14 of the Indian Constitution.
There though, exists a State in India that has had Uniform Civil Code since a long time. Goa. The “Shinning Example” of UCC implementation. All the citizens, irrespective of Religion, Race, Caste, Sex and Place of Birth are governed under the same set of rules. It does not allows Triple talaq or polygamy, makes sure Hindu woman gets equal shares of inheritance. It is apparently the only state that has these casualties mentioned above sucked in at their roots and are following the Constitution of India as it was supposed to be. So, not being naïve, but there is hope that India will one day be governed under one rule but a rule that shall not hurt religious sentiments. The States has been able to bring in minute but important integral changes within the communities. And that proves the fact that maybe not today itself, but with time and slow, steady changes Uniform Civil Code will one day rule India. India will promote “One Rule One Nation” and it will not be an adulterated belief.